Australia: Casuals Employed On A “Regular And Predictable” Basis Entitled To Annual Leave: Full Federal Court

The Full Court of the Federal Court of Australia has unanimously dismissed an appeal from the Federal Court, ruling that casuals, who are employed on a “regular and predictable” and “continuous” basis, are entitled to annual leave under the Fair Work Act 2009 (Cth) (“FW Act”).

In WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Full Federal Court was required to determine if Workpace Pty Ltd, a labour-hire business, engaged Paul Skene, a dump-truck operator, as a “casual employee” for the purposes of section 86 of the FW Act.

Section 86 of the FW Act provides that “employees, other than casual employees” are entitled to annual leave. The FW Act does not define “casual employee”.

On appeal, Workpac argued that:

• Mr Skene had been deemed to be a casual employee under the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (“WorkPac Agreement”);
• Mr Skene had been remunerated at a higher base rate of pay under the WorkPac Agreement, in accordance with the entitlements owed to casual employees; and
• the Court should define “casual employee” by reference to the “common industrial meaning” of the expression, as it appears in Modern Awards or Enterprise Bargaining Agreements.

The Full Court rejected each of these arguments, holding that:

• if an employer were able to deem an employee to be a “casual employee” under an Award or Enterprise Agreement, the statutory purpose for annual leave would be “readily defeated”;
• Mr Skene’s contract of employment did not designate any part of his pay as comprising either his “casual loading or as monies in lieu of paid annual leave”; and
• there was no “uniformly understood specialised meaning of the expression “casual employee””.

Reviewing the authorities, the Full Court stated that the expression “casual employee” had a legal meaning at common law, observing that:

“… [A] casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work.

Furthermore, the Full Court held that the “indicia of casual employment” could be summarised as being “irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability”.

Because Mr Skene enjoyed a pattern of work that was “regular and predictable”, “continuous” and “not subject to significant fluctuation”, the Full Court established that he could not be a “casual employee” under section 86 of the FW Act.