Regular casuals still ‘short changed,’ says union

tribunal hearing legal case

Following a high-profile industrial relations case, the pharmacists’ union has accused employers of failing to switch long-term casual workers with regular hours to permanent full and part-time work

The comments were in response to a Federal Court decision which has held up the principle that work which is regular, ongoing and permanent is not genuinely casual, in what Professional Pharmacists Australia calls a “huge win for all workers”.

On Wednesday the Federal Court delivered a decision in the matter of WorkPac v Rossato, which upheld key principles of the 2018 WorkPac v Skene decision.

This earlier decision outlined that work which is regular, on-going and permanent in nature is not genuinely ‘casual’ and therefore attracts entitlements such as paid annual leave.

WorkPac submitted that Robert Rossato, who was employed as a haul truck driver across two Glencore sites in Queensland, was a casual employee on the basis that a person is a casual when there is an absence of a “firm advance commitment as to the duration of the employee’s employment or the days/ hours the employee will work”.

Mr Rossato was an employee of WorkPac between July 2014 and April 2018, during which period six consecutive contracts of employment were made between the two; WorkPac treated each employment as a casual employment, and Mr Rossato as a casual employee.

Mr Rossato had written to WorkPac a couple of months after the Skene decision, saying that he had not been a casual and that he claimed outstanding entitlements to paid leave such as annual leave and public holiday pay entitlements.

Two days after this communication, WorkPac initiated proceedings in the Court, but was unsuccessful; the Court has this week determined that Mr Rossato’s employment was permanent, not casual, and that he was entitled to payment for leave including annual leave.

PPA president Dr Geoff March hailed the outcome as a win for workers including employed pharmacists.

“The decision found that casual staff with regular shifts and an expectation to reasonably predictable hours of work will no longer be considered as casuals,” he told the AJP.

 “These staff will now be entitled to paid annual and personal leave as well as a number of other entitlements including redundancy and termination payments.

 “In the pharmacy sector, where the use of casual workers has historically been very high, the award provision ‘permanent’ casual employees was deleted in July 2014.

“Unfortunately it’s clear that despite this, many pharmacy employers have still not transferred their casual employees to permanent full-time and part-time employment, and the use of casual workers on a full time basis is still very prevalent in our industry.

“This practice short changes our hardworking pharmacy employees of job security and important entitlements.”

Dr March gave the example of a pharmacy employee who had been classed as a casual for more than 10 years, although they had been working a full time roster over the entire period of their employment.

“That employee is now seeking back pay of all their annual leave and personal leave entitlements and the employer is likely to have to pay significant compensation,” he said.

“This Federal Court decision should remind these employers of their legal obligations to casual staff who are working consistent, regular rosters. 

“Employers must transfer any casuals who work regular hours to permanent full-time or part-time employment immediately or they leave themselves open to significant claims for back pay.

 “At a time when pharmacy workers are bearing the brunt of overwork and dangerous working conditions due to the COVID-19 pandemic, pharmacy employers owe it to their staff to ensure they receive the appropriate pay, employment conditions and entitlements.

“We urgently call on all pharmacy employers to immediately transfer all casual employees who work regular rosters to permanent employment.”

A spokesperson for the Pharmacy Guild says that the organisation is currently studying the WorkPac v Rossato decision and has no comment at this stage.

Innes Willcox, chief executive of the national employer association Ai Group, called on Parliament to “act quickly to restore fairness” following the decision.

He said the case highlights “the need for urgent legislative reform to provide certainty to businesses and casual employees, and to prevent double-dipping claims by casuals who have been paid additional remuneration in lieu of the entitlements of permanent employees”.

“Casuals make up around 20% of the Australian workforce, providing vital flexibility to employers and employees,” said Mr Willox.

“The Fair Work Act needs to be urgently amended to define a casual employee in a simple and clear manner to address the uncertainty caused by the Federal Court’s WorkPac v Skene decision, and now the WorkPac v Rossato decision.

“The current laws, as interpreted in these decisions, operate as a major deterrent to the employment of casuals.”

Industrial Relations Minister Christian Porter is reportedly considering taking the path of legislation to address the situation.

According to The Guardian, the Government could potentially intervene in this case, and WorkPac could appeal.

“Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options,” he said.

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  1. Bruce ANNABEL

    Oh my word what terrible timing for pharmacy owners, not to mention employment. We’re about to enter a fairly long and deep recession.
    Marvelous result for any staff who remain as casuals and a great coup for the union, perhaps, lifting their relevance to those who are employed.However, it always seems strange to me that employers are expected to pay more in return for what productivity improvements??
    Of course many will be swapped to part-time and the already downward pressure on containing staff overheads will continue. But the great pity is there will be far less casual employment opportunities for those employees who it suits and to fit in with the peaks and troughs of day to day pharmacy operations.

    • Geoffrey Timbs

      I’m not sure it is a great result for all staff who remain as casuals- surely it is only relevant to those who have been misclassified and should have been permanent part time-hopefully a small percentage.
      I recall maybe about 2014 the Guild put out a lot of information on correctly classifying all staff and defining a true casual. Changes to rosters require more notice for permanent part time employees so it reduced flexibility and added extra complexity in preparing staff rosters. At the time some ‘casuals’ were resistant to changing to permanent part time lower weekly pay rates but there was no option.
      If some pharmacies were too busy/lazy/unprofessional to reclassify some ‘casuals’ and thereby created a slight business advantage then it may be a costly lesson But it will not apply to all casuals.

  2. Philip Smith

    Small business with less than 15 employees have different rules for redundancy etc.

    So how does the loading work?
    I thought this was there to compensate holiday and sick pay.

    Unlike the mining industry we do not get sick days paid out on leaving or termination.

    So is there some math going on with total back pay minus loading received?

    There will be a few recently let go employees during pandemic chasing some back pay and some lawyers champing at the bit to get their cut.

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