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

  • youtube.com/activate 03/11/2020 12:31am (3 months ago)

    YouTube is the go-to platform for most people to watch videos in today’s generation. Whether you want to watch informative tutorials, or movies, or even web series, YouTube has it, and hence, it is the most popular video publishing and the streaming site as of date. While you can watch YouTube on any smartphone as long it has video support and an

  • magicjack.com login 03/11/2020 12:17am (3 months ago)

    Once at the magicjack login page just enter either your magicJack telephone number or the email address you used when signing

  • John Matt 02/11/2020 10:11pm (3 months ago)

    Cash App Login the very first thing the user has to do is to create a Cash App account, and once it is done you can easily send and receive the payment, either for your personal as well as the business purposes. Proceed with entering the email ID and the password. If you have forgotten the password then, the new one can be created, with strong characters. To perform the Cash App Sign In, with the help of experts is always a good idea.

  • JaredVenog 01/11/2020 11:18pm (3 months ago)

    viagra 100mg price <a href=" http://vgr24w.com/# ">generic viagra without a doctor prescription</a> generic viagra cost

  • an essay 31/10/2020 10:44am (3 months ago)

    I am really enjoying the theme/design of your website.
    Do you ever run into any bdowser compatibility problems?
    A small number of my bloog visitors have complained about my website not operating correctly in Explorer
    but looks great in Safari. Do youu have any recommendations to help fix this issue?

    https://orderessayusukau.com/
    an essay
    an essay
    https://orderessayusukau.com/

  • online writing paper 31/10/2020 6:50am (3 months ago)

    Wow, this paragraph is good, mmy younger sister is analyzing
    these kinds of things,so I am going to convey her.
    https://essayserviceusukua.com
    online writing paper
    online writing paper
    https://essayserviceusukua.com/

  • amazon.com/code 31/10/2020 5:22am (3 months ago)

    Amazon Prime video is amazon’s streaming platform which is the main competitor of Netflix and other global streaming channels. You can watch your favorite movies and shows without any ads using amazon prime video.

  • Blakesadia 30/10/2020 3:47pm (3 months ago)

    how much viagra should i take the first time? <a href=" https://viaworldph.com/# ">buy viagra generic</a> viagra coupon

  • buybuyviamen.com 29/10/2020 10:43pm (3 months ago)

    If this happens to you, discuss treatment options with your health
    care team. what happens when a woman takes viagra (buybuyviamen.com)
    buy viagra online

  • Stephenrix 29/10/2020 2:24pm (3 months ago)

    how much is viagra <a href=" http://sild100fast.com/# ">generic viagra</a> generic viagra walmart

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