The recent 16 August 2018 Full Federal Court decision in WorkPac Pty Limited v Skene has profound consequences for employers, business buyers, sellers and advisers.
The Court held that a labour hire employee – employed/ described as casual but working a regular roster – was on true characterization permanent. Consequently, the employee was entitled to “double dip” – i.e. he was entitled not only to his casual loading (a feature of his casual employment contract) but also to annual leave under the National Employment Standards (not a feature of his casual employment agreement).
This is a timely reminder that a label or document describing an employee as casual can be rebutted by the true nature of the arrangement. If the employment arrangement does not involve some or all of irregularity/ uncertainty/ discontinuity/ intermittency/ unpredictability/ flexibility of work, it may well be recharacterized as permanent.
This case carries expensive implications for all employers if an employee’s employment is recharacterized – including unfunded and unexpected paid leave liabilities and mandatory (but unexpected) obligations relating to notice of termination, redundancy pay, public holidays and unfair dismissal laws.
We thank Andrew Baggio from Baggio Legal for allowing us to share with you this very important issue.
If you think you need formal advice on the above, please do not hesitate to contact your appropriate professional advisor.