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

  • Virginia criminal lawyer 25/11/2020 3:24am (2 months ago)

    Being indicted for a sex wrongdoing in Fairfax can accompany brutal punishments that can incorporate up to life in jail just as robust fines. A conviction can likewise have dependable repercussions—even after you complete your sentence. You will have a perpetual criminal record and may need to enroll as a sex wrongdoer on Virginia's Sex Offender Registry,

  • Garmin Express Download 24/11/2020 7:44pm (2 months ago)

    If you are facing any kind of difficulty regarding any of the issues related to Garmin Express Download while downloading it or its configuration then no need to worry. We are here the experts who have years of experience in the tech industry.

  • sthiphenmine 23/11/2020 8:55pm (2 months ago)

    Nest account login is the only way to take the benefits of your favorite camera, as they have high competition in the market, and people have all the trust in this if you have any problem, call us now at +1-844-641-1174, and get all the answers at once. The technicians will help a common man to you in many ways, to give the best satisfactory answers, as it is difficult to perform by himself the Nest cam login. For more details ,You can also visit our website

  • Fbsgtough 21/11/2020 2:34pm (2 months ago)

    come creare il viagra <a href="https://buybuyviamen.com/#">can women get viagra</a> best substitute to viagra

  • price of viagra in india 21/11/2020 7:52am (2 months ago)

    Where to purchase female viagra lightvigra.com cheap viagra online in usa

  • how to get female viagra pills 20/11/2020 11:49pm (2 months ago)

    Sildenafil 50 mg buy online price https://hopeviagrin.com/ cheap generic viagra

  • best paper writing service 20/11/2020 9:02pm (2 months ago)

    For newest information you have to pay a isit world wiode web and on world-wide-web
    I found this website as a best website for most recent updates.


    https://cheapessaywritinghelp.com
    best paper writing service
    best paper writing service

  • Fhsbtough 20/11/2020 9:21am (2 months ago)

    expiring drug patents viagra <a href="https://buybuyviamen.com/#">buybuyviamen.com</a> is viagra cheaper than cialis

  • FrbhPeevy 20/11/2020 6:03am (2 months ago)

    viagra with dapoxetine over the counter <a href="https://paradiseviagira.com/#">paradiseviagira.com</a> viagra pharmacy paypal

  • 123.hp.com/setup 19/11/2020 11:07pm (2 months ago)

    123.hp.com/setup Printers is specially manufactured to serve all hp printer functions. Genuinely with attractive colors, ultimate size with gentle features for influencing the place to have stunning look.

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