Skene Decision – Federal Court of Australia

The Full Court of the Federal Court of Australia has affirmed the earlier Skene decision in which the Court found that entitlements to annual leave, sick leave, long service leave, and other amounts were due and owing to a casual employee notwithstanding the terms of that casual employee’s employment agreement.

In Rossato, the employer Workpac (the same defendant as in Skene) sought to raise arguments that it had not raised in the Skene decision.  However, the Court found that as a result of largely the same facts, the additional entitlements were still owed – considering all of the circumstances, the substance of Rossato’s employment was as a permanent employee.

Critically, the Court found that an employer could not off-set amounts paid that were allegedly paid to Rossato for casual loading as those amounts did not appear as separate amounts on the Rossato’s payslips – i.e. an hourly rate of X with casual loading amount of Y.

This is a further timely reminder that employers with a casual workforce should consistently review the engagement of its casual employees to ensure that:

1. Casual employees are aware that they are able to decline shifts without penalty or adverse consequence.
2. Casual employees do not work regular, certain, continuous, and ongoing shifts, or shifts that are rostered for some weeks into the future – i.e., the pattern of a casual employee’s working days and shifts should change regularly.
3. Payslips should separately describe ordinary hourly rates from allowances or loadings.

You don’t want to pay the higher contractor rates or casual rates only to find out later that the person was a deemed/permanent employee and that you then have to pay either further entitlements such as annual/sick leave, superannuation, or other amounts such as PAYG, or workers compensation premiums.

Avoid these types of future employment problems and the cash flow problems they bring by contacting Access Law Group for advice tailored to your circumstances.

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