Landmark Change for Casual Workers
Are you entitled to Paid Annual Leave and Paid Sick Leave?
After the Federal Court’s ground breaking judgment, casual employees may now be entitled to annual leave, sick leave and holiday pay.
The judgment of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 confirms that in some circumstances, casual workers were entitled to paid leave and sick leave, giving effect to revolutionary changes in industrial relations law.
The Court confirmed that in specific circumstances, a casual employee may be deemed a permanent employee. If this is the case, they will then become entitled to annual leave, carer and personal leave, compassionate leave and payment on public holidays.
The Case
The full bench of the Federal Court determined that Mr Rossato was not a casual employee, but instead was a permanent employee and thus entitled to leave benefits.
WorkPac employed Mr Rosstato for a period of three-and-a-half years, where he worked regular and systematic hours during that time. His roster was a 7 days on / 7 days off, in which he worked every rostered shift. His roster was set down some 7 months in advance and he worked that roster without change.
Mr Rossato sent a letter to his employer stating that he believed that he was a permanent employee and thus should be entitled to leave entitlements. In response to that letter, WorkPac commenced proceedings in the Federal Court to have a ruling in its favour that Mr Rossato was a casual employee and as such was not entitled to any leave benefits.
The Court disagreed with WorkPac, and instead found in favour of the employee, Mr Rossato.
In coming to its decision, the Court had consideration to the following:
a. Mr Rossato was an employee for an indefinite and continuing period of time; and
b. His employment was ‘stable, regular and predictable’ and not sporadic or random.
What does this mean for casual employees?
The case provides guidance and the basis for casual employees whom have been employed by an employer for a long, systematic and indefinite period to claim unclaimed benefits.
The Fair Work Commission defines a casual employee as:
- Someone who has no guaranteed hours of work;
- Usually works irregular hours;
- Does not get paid sick or annual leave; and
- Can end employment without notice, unless required otherwise by agreement.
If a casual employee has been employed in a situation that does not meet the above criteria, the Court may determine that they are a permanent employee and therefore may be entitled to paid annual leave and paid personal leave entitlements.
It depends on a case-by-case scenario, hence it is best to seek advice.
What does this mean for businesses?
If you are a business who employees casual employees, it is important to review your casual employees’ working conditions to ensure the arrangement is compliant with the law.
What can we do to help?
If you require advice about casual entitlements, or wish to have a discussion regarding that, please contact Aaran Johnson on ajohnson@marsdens.net.au or Simon Kumar on skumar@marsdens.net.au or by phoning 02 4626 5077 to see if we can help.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
