Over the last ten to fifteen years an idea grew up. The idea was that as long as you paid someone the 25% casual loading and you kept telling them they were casual, then they could remain a casual employee forever. Wrong! On 16 August 2018 the Full Court of the Federal Court of Australia killed that idea stone dead. The case is known as Workpac Pty. Ltd. v. Skene.
So what does the case tell us? It tells us that if an employer engages a worker during regular hours for a period of time doing the same job, day in, day out with no real variation in hours or work context, then that worker is a permanent employee even if the worker is being paid the 25% casual loading and thinks that the relationship is that of casual employment.
Shock horror! Right across Australia at this moment we have not hundreds but thousands of casual employees who aren’t casual at all but are permanent and are entitled to, among other things, four weeks paid Annual Leave and ten days paid Sick Leave for each year that they have been employed. They do not get to keep their casual loading (that has to go) but they do get all the permanent employment accruals with which we are familiar.
This is officially Big News. I might add that all the Federal Court has done is reflect what the law has been all along. It’s just that employers had lulled themselves into a state of some denial on this issue for many years. So if you have a business in the labour hire industry or you are engaging Fly In/Fly Out workers then this decision is of critical importance to you.