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


  • write my essay 16/11/2020 4:05am (2 months ago)

    Thank you ffor tthe ggood writeup. It in fact was a amusement account
    it. Look advanced to more added agreeable from you! By the way, how can we communicate?
    write my essay
    write myy essay

  • RobertPer 15/11/2020 1:55am (2 months ago)

    erectal disfunction viagra without doctor prescription

  • help me with my assignment 13/11/2020 3:49pm (2 months ago)

    Thanks for taking the time to share with us such a great article. I found such a significant number of fascinating stuff with regards to your blog particularly its discussion. Keep doing awesome.

  • Ronalddot 13/11/2020 10:28am (2 months ago) and and and

  • write my essay 12/11/2020 3:49pm (2 months ago)

    This article is in fact a good one it helps new
    net people, who are wishing for blogging.
    write my essay
    write my essay

  • Ronalddot 12/11/2020 2:52pm (2 months ago) and and and

  • kratom maryland 12/11/2020 6:45am (2 months ago)

    obviously like you web site but you need to test
    the spelling on quite a few of your posts. Maany of them are
    rifee with spelling problems and I inn finding it very troublesome to tell
    the reality however I'll surely come again again.
    kratom maryland

  • Jildctough 11/11/2020 9:59pm (2 months ago)

    us online pharmacy viagra <a href="">online pharmacy viagra generic</a> online pharmacy viagra generic

  • Ronalddot 11/11/2020 3:53pm (2 months ago)

    lowest cialis prices <a href=" ">buy tadalafil</a> free cialis medication for providers
    cialis 20 mg best price

  • 11/11/2020 3:38pm (2 months ago)

    If you are new to HP Wireless Printer and would like to know how to find the matching software to proceed with , here we explain the guidelines for Windows. Now to get the help and support to complete driver download, do not delay contacting our Printer support.

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