Loopholes and licensing for labour hire lead to valuable lesson

Wednesday 3 May, 2017

Following the State Government’s announcement of mandatory licensing to crack down on rogue labour hire operators, there has been some discussion on possible outcomes of moving to regulate the industry.

The Chamber of Commerce and Industry Queensland (CCIQ) has received feed back from some employers already.

While some welcome the crackdown on some operators who have been exploiting and mistreating vulnerable workers, others feel there was little or no consultation from the government and it will just mean more fees and red tape for small business.

CCIQ’s employer assistance experts warn that one key area will be that labour hire companies employing casuals need to ensure they are true casuals and not full time employees, as highlighted in the industrial case, Skene v Workpac Pty Ltd [2016] FCCA 3035 (24 November 2016). 

Mr Skene was employed at a mine site working a 12.5 hour day on a 7-day continuous roster, determined 12 months in advance. 

His employment contract stated he was a casual, was paid a high level that included the 25 per cent casual loading.

Mr Skene was terminated for alleged poor conduct and behavior. 

He claimed that he was continuously employed by Workpac, he was entitled to be paid out 6 weeks of annual leave and annual leave loading.

Workpac disputed the claim, relying on sections 87 and 90 of the Fair Work Act 2009 and relevant clauses with their Workplace Agreement.

A Federal Circuit Judge was satisfied Mr Skene was not a casual employee at common law and therefore had an entitlement to annual leave under section 86 of the FW Act. However did agree that he was under the terms of the Workplace Agreement.

The Judge found that Mr Skene had:

•             regular and predictable employment according to a set roster with lack of choice in work arrangements or shifts;

•             continuous employment; and

•             an expectation that he was to be available on an ongoing basis to perform the duties of his position.

CCIQ notes that the lesson here is for employers to truly understand what is casual is under common law and that is someone who:

•             performs work on a non-ongoing basis;

•             normally chooses when to work;

•             has no guarantee of ongoing employment; and

•             has their employment contract end when each engagement ends.

It is likely this case will be appealed but in the meantime contact Jason Wales and his Employer Assistance Team at CCIQ if you are unsure on what is a true casual.


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