In the highly contentious Workpac Pty Ltd v Skene decision, a full bench of the Federal Court of Appeal has found an employee truck driver was entitled to be paid compensation for an entitlement to annual leave, even though he was engaged on a casual basis according to the employer, and paid a casual loading for his engagement.
In considering the unique facts of the case, the Full Court considered the relationship between modern awards, employment agreements and the National Employment Standards (NES). The Court found that the NES is the ‘pinnacle’ of industrial instruments, taking precedence over terms in employment contracts, EBAs or awards. This meant the Court was required to turn to the NES and Fair Work Act 2009 (FW Act) to determine the nature of the engagement, not the industrial instrument by which the employee was engaged. This is significant, given the fact that the FW Act does not provide a definition of “casual”.
Jobs and Industrial Relations Minister Kelly O’Dwyer has sought legal advice and is considering introducing legislation or regulation in response to the ruling. Master Builders believes such action may be necessary to address the potential unintended consequences that may flow from the decision, such as small business employers being exposed to casual employees seeking to ‘double- dip’ on entitlements. It is also understood that Workpac has made a new Federal Court application seeking declarations that a former employee is not entitled to additional leave payments because he was engaged as a casual.
Master Builders advises in the interim that, while the decision may have some effect on the way casuals are engaged, members should be careful in taking any action as a result of the decision as the facts of the case (and of the particular employee’s engagement) are unique and may therefore not be applicable to their arrangements.
Members seeking further information should contact the IR Department on (03) 9411 4560.