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


  • homework help singapore 21/09/2020 4:05pm (4 months ago)

    hurry up please! is now also offering homework help singapore at lowest cost. Save your money with our expert college writers who can easily solve your all homework problems and help getting higher grade in college. Homework help singapore is now available at cheap cost in limited time.

  • MagicJack login 18/09/2020 4:59pm (4 months ago)

    Hii admin you are a jenous blog wrighter in this digital world…your content is very uniq and oriented..i am verry appreciate to read your blog..

  • office 2019 18/09/2020 4:55pm (4 months ago)

    Hii admin your blog is very usefull and oriented…Here is some new information, Microsoft office released his new latest future for office 2019. if you want to read office new future visit my blog:

  • CHCDIV002 Assessment Answers 15/09/2020 10:10pm (4 months ago)

    Get quick support for the CHCDIV002 course various assessments with the expert assignment writers. It has a team of highly experienced tutors who have excellent knowledge of making CHCDIV002 Promotion of Aboriginal and Torres Strait Islander Assessment Answers. They apply the best suitable approach for writing CHCDIV002 Assessment Answers. So hurry and get the benefit of extraordinary assignment writing services ASAP.

  • 15/09/2020 7:38pm (4 months ago)

    You are a great blogger…I track your blog since last year, And I get better sollution to read your blog…good work against wrighting…thanx to sharing your meaningfull blog…

  • Dissertation helper 15/09/2020 6:57pm (4 months ago)

    If any student of doctorate or master's wants to hire a dissertation expert. then he can visit the Nz assignment help agency. If you visit then Our experts' team will contact you and provides any help to complete your dissertation. it happens when with the student then they have a lack of resources. Nz assignment help's experts are well researched and have 10+ years of experience.

  • best thesis writers 14/09/2020 10:00pm (4 months ago)

    Singapore Assignment Help is a source of thesis writing help services for Singapore students studying in colleges or universities, which provides plagiarism-free and error-free work to students. Hire our best thesis writers. Contact here:-

  • 14/09/2020 9:08pm (4 months ago)

    If you go to and down load Word, PowerPoint, and Excel on your laptop computer or computer, you will be capable to work easily. Although for the use of these apps, you want to pay for it as they are no longer free and they come in specific programs relying on the user. So, if you favor to use it for domestic or non-public purposes, then there is a package deal that charges different. But many human beings do no longer favor to subscribe to these each year programs and so for them, there are approaches you can workplace for free!

  • 14/09/2020 2:53pm (4 months ago)

    Office com setup - Get started with Microsoft Office by downloading and installing. You need the dedicated 25-digits product key for activation. Get the Office setup from www office com setup. Office com/setup - To Install Office Setup Enter Office Setup Product Key and activate, setup office product.

  • Mbear123@ Mbear123@ 11/09/2020 11:05pm (4 months ago)


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