Construction business ordered to pay casual worker 15 years of annual leave after court action

Friday 2 March, 2018 | By: Thomas Birkbeck

A small construction business in South Australia has been ordered to pay a former worker 15 years’ worth of annual leave, after a Federal Circuit Court judge found he should have accrued the leave entitlements of a permanent employee during his tenure.

Are you sure you're paying your staff correctly? Apply for a CCIQ Membership to be 100% confident 
The former worker took action 
against Mantina Earthmovers & Constructions after he was dismissed from his role in 2015. He worked as a crushing plant operator at a quarry in South Australia between 2000 and 2015, but the court heard there was no written employment contract when he was initially hired.

He worked regular full-time hours across this 15-year period, and the court heard there was never a suggestion that he had the option to decline work or not show up for these regular hours. While the employer said he had been treated as a casual worker, there was no indication of his role classification on pay slips.

The employer also said the worker had been paid a 20% casual loading for his time. However, the court found there was no actual evidence of this loading having been paid, and even if it had been paid, the worker would have been entitled to a 25% loading, rather than 20%, under the relevant workplace agreements.

The judge’s decision on whether the worker was casual or permanent also came down to how workers should have been classified under those agreements. The worker in this case was covered by the Quarrying Industry Award from 2000 to 2007 and then an Australian Workplace Agreement (AWA) from 2007 to 2015.

shutterstock 576975979

 

Federal Circuit Judge Tony Young found that under both structures, the worker’s employment was actually permanent, even though the company was operating operating under the “misapprehension” that he was casual. Because there was no contract when he was hired, under the Quarrying Award, the worker was found to have been a ‘weekly hire’, and therefore a permanent employee.

Under the AWA he signed onto in 2007, permanent workers were expected to be engaged for a consistent 38 hours a week and could not turn down these hours, as a casual might be able to. Judge Young found the worker was entitled to 15 years of annual leave at his ordinary rate of pay, plus payment in lieu of a notice period for when his employment ended. A further hearing will be held to decide the amount of interest and payments owed to the worker.

The worker had also sought for a civil penalty to be imposed on the business for deliberately choosing the wrong classification for his employment. However, the judge dismissed this claim, after finding that the employer did not deliberately breach workplace laws and the worker had “accepted” the terms offered to him while he worked there, including being paid a casual employee rate.

Workplace lawyer Peter Vitale says this decision shows how the law looks at the substance of an employment relationship, rather than what the employer calls a worker’s status, when deciding whether an employee should be classified as permanent or casual.

“It gets back to that common statement, ‘If it looks like a duck and quacks like a duck, it can’t be a rooster’,” he says.

In general terms, the courts have previously found that if an employer engages a worker for regular and sustained hours, there is a strong likelihood that the worker should be classified as permanent, no matter what it says on a worker’s pay slip, Vitale says.

The reality is if you are employing someone on a regular pattern of hours, for a lengthy period, you are going to be at some risk of having that employee being found to be permanent,” he says.  

Regularly reviewing how your workers are classified can help prevent significant financial costs down the line, especially if a worker tries to claim leave entitlements after leaving the business, Vitale says.

“It’s sensible for every business to just re-examine what their employees are doing, what their duties are, and whether they have been classified appropriately, and do this every time there’s a substantial change to their duties,” he advises. 

This is a copy of an article originally published by Smart Company.

Post your comment

Comments

  • aol mail login 19/01/2021 1:55am (5 days ago)

    In the event that your program history settings call to be recorded for a particularly significant stretch of time, at that point the document size can turn

  • JvcxidobE 18/01/2021 11:32pm (6 days ago)

    viagra onlin <a href="http://fmedrx.com/#">viagra in sacramento</a> viagra in ireland? viagrah <a href="http://edabcrx.com/#">generic viagra best buys</a> viagra cheap viagra india <a href="http://abcrxmed.com/#">viagra pharmacy</a> viagra gold for sale viagra australia paypal accepted <a href="http://cialedrx.com/#">viagra australia delivery paypal</a> generica viagra viagra from uk <a href="http://hitrxmenvia.com/#">viagra online pharmacy australia</a> viagra no perscription

  • KlioKimb 18/01/2021 9:49pm (6 days ago)

    cialis paypal viagra <a href="http://bestviagrx.com/#">cialis vs viagra vs levitra</a> substitute viagra over the counter viagra <a href="http://viarxhd.com/#">viagras 100mg</a> free viagra trials viagra alcohol use <a href="http://viagetpill.com/#">viagra paypal accepted</a> viagra inside inida shipping viagra online sales australia <a href="http://pillexrx.com/#">where to buy viagra in new york</a> fastest delivery of mail order viagra viagra replacement <a href="http://usggrxmed.com/#">viagra sale</a> buy real viagra 365 pills

  • Aol Desktop Gold Download 18/01/2021 6:14pm (6 days ago)

    Download AOL Desktop Gold then it will be said
    as the most effortless to utilize,
    favored by endless individuals all around the planet.
    It is a bundle of numerous choices; you can perform at a time. Download AOL Gold, with a high web association,
    you can mess around. Transfer recordings and sounds, the most recent news that is going near.

    <a href="https://sites.google.com/view/aol-desktop-gold-problems/aol-desktop-gold">Aol Desktop Gold Download</a>

  • NlbxPeevy 17/01/2021 12:41pm (7 days ago)

    generic viagra 60 pills <a href="http://viashoprx.com/#">generic viagra online us</a> free viagra alternative viagra inline <a href="http://xviagarrx.com/#">sale viagra</a> who has the best deal on viagra generic viagra 30 tablets <a href="http://viagraviagria.com/#">brand viagra australia</a> viagra online mexican pharmacy viagra austrlia <a href="http://asgenviagria.com/#">buy viagra 100 mg</a> pfizer viagra 100mg price buy viagra cheap online australia <a href="http://viagengen.com/#">viagra australia paypal</a> buy cheap generic viagra online

  • FgnhPeevy 14/01/2021 6:05am (10 days ago)

    viagra and zoloft interaction <a href="http://ltdviagragogo.com/#">generic viagra chewable</a> substitute for viagra viagra discover card <a href="http://hdgenericviagraxk.com/#">online mexico pharmacy, viagra</a> viagra gold 800mg reviews viagra light buy <a href="http://buygenericviarga.com/#">online pharmacy viagra paypal</a> viagra for sale no prescipstion canadian generic viagra <a href="http://buyhdpillvia.com/#">viagra prices walmart</a> can i buy viagra online without percription viagra from melbourne <a href="http://genericviagrix.com/#">viagra ad on xm radio</a> buy viagra in ncanada

  • Maria Losten 13/01/2021 8:17pm (11 days ago)

    AOL desktop gold can run delayed because of various reasons and a portion of the reasons incorporate pre-introduced antiviruses, temp documents on your PC, establishment of contradictory programming programs. To fix them, you can take a stab at restarting your PC, empowering the basic startup projects and others.

  • KhthKimb 13/01/2021 7:58pm (11 days ago)

    drug store news ce <a href="http://onlinepharmacyzefb.com/#">best ed pills</a> canadian pharmacy online

  • NllpPeevy 13/01/2021 10:06am (11 days ago)

    drugstore beetle <a href="http://pharmacy-onlineasxs.com/#">best drugstore face wash</a> erectile dysfunction

  • Sthephnmine 12/01/2021 8:56pm (12 days ago)

    SBCGlobal Login Email has helped numerous people when it comes to connecting with various organizations or people. Mails have the most important role when it comes to sharing the various organizations.
    <a href="https://sites.google.com/view/sbcglobal-login-email/home">SBCglobal Login</a>
    <a href="https://sites.google.com/view/sbcglobalemailloginn/home/">SBCglobal.net Login</a>
    <a href="https://sites.google.com/view/download-aol-mail-app/home">Login
    SBCglobal.net</a>

RSS feed for comments on this page | RSS feed for all comments