Casuals move welcomed by Guild, slammed by unions

Industrial Relations Minister Kelly O’Dwyer has decided to intervene in a court case which will have significant implications for casual workers and their employers

The move centred around a Federal Court decision, WorkPac v Skene.

A previous court decision found that a worker, Paul Skene, who had been classified as a casual by the company was entitled to the payment of accrued annual leave and other entitlements, following the termination of his employment with WorkPac.

Mr Skene had been employed as a dump truck driver at a coal mining operation in Queensland. The case pivoted around what made a person a casual employee and whether Mr Skene was in fact a casual employee, as claimed by his employer, or a permanent employee.

The primary decision found that Mr Skene worked a regular roster and was due back pay of annual leave only in addition to the casual loading he had been paid during his employment, though it was found that WorkPac was entitled to call him a casual.

WorkPac filed another action, a test case regarding whether another employee was a casual or not, and it is regarding this case that Minister O’Dwyer has moved.

The Pharmacy Guild welcomed the move, saying the intervention will provide certainty that small business will not be potentially liable for back pay claims that it says would effectively result in them paying twice for annual leave and other entitlements.

“A recent Federal Court decision (WorkPac v Skene) has cast doubt on the future employment of casual employees (e.g. university students, school students, other casual staff) and exposed employers to what potentially could be large back pay claims,” the Guild’s executive director, David Quilty, said.

“Pharmacies and other small business owners who have employed casual employees in good faith could be susceptible to back pay claims, having already paid for leave once through a casual loading, and then potentially through possible claims after employees leave their jobs. 

“For many years, the Guild has actively encouraged and supported its community pharmacy employer members to ensure they are compliant with the Pharmacy Industry Award when it comes to the employment of casual employees.

“Small businesses like pharmacies already have to deal with and keep abreast of highly complex workplace relations rules and regulations, which can have the unintended consequence of discouraging employment and unnecessarily increasing the levels of business risk.

“This decision has muddied the water even further. We support the Federal Government’s intervention in this case to provide clarity and certainty for employers and for employees who wish to be employed as casuals.” Mr Quilty said.

Unions attacked the Government over the intervention.

“The intervention comes after questions were raised about collusion between the Morrison Government, WorkPac and private lobbying companies when leaked emails between lobbyists and parliamentarians appeared to show that the Morrison Government was directing lobbying efforts to pass legislation that would overturn the decision and erode the rights of working people,” the Australian Council of Trade Unions said in a statement today.

Its president, Michele O’Neil, said that the court has exposed that “big business has been cheating workers out of their entitlements”.

“There is a long history of case law about what makes a person a casual and it is very clear that people who have fixed and continuous work are entitled to accrued leave,” she said.

“Big businesses in the labour hire industry have been caught abusing the casual classification and they’re trying to escape paying working people the money they’re owed.

“Kelly O’Dwyer is helping them keep them myth of the ‘permanent casual’ alive and to strip workers of their rights.” 

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