The recent Federal Court ruling that an on-going casual employee has essentially the same leave entitlement as an on-going permanent employee has sparked much concern among employers.
They argue that casuals now essentially will be getting two bites of the cherry, the receipt of 20 to 25 percent loading in lieu of permanent employee entitlements, and, to top that, paid leave.
The decision is not a sweeping one and is specifically targeted to regular on-going casuals who are doing exactly what permanent staff do but are classified as casuals.
The crucial question that the decision invokes is whether the Federal Court in truth is stating that casuals are entitled to annual leave - or are the courts concerned that employers are labelling workers as casuals to avoid conferring entitlements that they should enjoy as permanent employees?
This decision now clearly establishes that entitlement to those benefits is given not for casual employees but rather those wrongly labelled as ‘casual’.
In deciding if a person is a casual employee, the Federal Court stated that the contract will be assessed by considering factors such as whether there was regular or intermittent employment, election of employer to offer employment on a given day, election of employee whether to work, and the duration of employment.
The court firmly stated that the description given by the parties was relevant but by no means conclusive.
This case determines that, an employer may not be able to rely solely on the classification of a worker as casual, but must ensure that this is reflected in practice, otherwise they may be obliged legally to confer all the benefits available to permanent employees.
It is expected the Federal Government will consider legislation following the court’s decision, with Attorney General Christian Porter noting it had immediate practical implications for their bottom line at a critical time during the Covid-19 pandemic.
This piece was co-authored by Cecilia Das, Kenneth Yin and Associate Professor Joshua Aston from ECU’s School of Business and Law.
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