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

  • Schmit Znellie 08/10/2020 4:24pm (4 months ago)

    Nice post. it is very interesting and informative. Thank you for the sharing.

  • help me write my essay 07/10/2020 5:39am (4 months ago)

    As thee admin of this web site is working, noo uncertainty
    very soon it will be renowned, duue to its quality contents.


    https://ordertermpaperonline.com
    help mee write my essay
    help mee write my essay
    https://ordertermpaperonline.com

  • scholarship essay writing service 06/10/2020 7:13pm (4 months ago)

    hello!,I like your writing so a lot! percentage we keep in touch more approcimately your article on AOL?
    I need a specialist in this house to resolve my problem.
    May be that is you! Looking forward to look you.
    https://essaypaperwritingservice.com
    scholarship essy writing service
    scholarship essay writing service
    https://essaypaperwritingservice.com

  • essay editing worksheets 05/10/2020 8:25pm (4 months ago)

    Our outstanding paper wriing service is created for university students
    across all acadxemic levels.
    https://buy-essay-services.com/essay-editing
    essay editing worksheets
    essayediting worksheets
    https://buy-essay-services.com/essay-editing

  • dissertation writerswriting an essay 03/10/2020 3:19am (4 months ago)

    I'm really enjoying the design andd layout of your website.
    It's a vvery easy on tthe eyes whiich makes it much morde pleasant for
    me to come here andd visit more often. Did you hire out a developer to create your theme?
    Fantastic work!
    https://writingmypaper.com
    dissertation writerswriting an essay
    dissertation writerswriting aan essay
    https://writingmypaper.com

  • write my admission essay 02/10/2020 7:21pm (4 months ago)

    Our outstanding paper writing service is focused at stuents across all academic levels.

    https://buy-essay-services.com/
    write my admission essay
    write my admission essay
    https://buy-essay-services.com/write-my-essay

  • roku.com/link 01/10/2020 9:38pm (4 months ago)

    Roku Com Link is used to activate Roku Streaming Player or Device. To view all favorite channels, shows, movies, dramas, etc, users need to activate the Roku Activation Code with Roku Account.
    http://rokuolink.com/

  • Maria Julia 01/10/2020 5:20pm (4 months ago)

    Getting any error in using Arlo App For PC, there are many more issues like using, serving or updating for the latest version, etc, if you are getting the same problem in Arlo Windows App. Dial 1 855 979 6456 and gain the best advice on a single call by dialing this number. There is a pool of Arlo experts that are round the clock available and serve their valuable advice.

  • Maria Julia 01/10/2020 5:19pm (4 months ago)

    Arlo is a number one brand in the United states and serving across the world. By this security camera many people are living stress-free life. Main problem is being arise when user get stuck in logging in, novice user also gets issue in Arlo Account Login, if your are getting error in Arlo Pro Login, Dial 1-855-979-6456 and receive instant suggestion regarding your issue like Arlo Login, Arlo Netgear Login, etc, stay connected with our experts and avail the service of Arlo Security camera.

  • cheap essay help 29/09/2020 10:34pm (4 months ago)

    This piece off writng givges clear idea in support
    of the new uswrs of blogging, that actually hhow to do running a blog.

    https://australianessaywritingservice.info/wow-essay-writing.html
    cheap essay help
    cheap essay help
    https://australianessaywritingservice.info/custom-essay-writing-reviews.html

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