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

  • Garmin.com/express 15/07/2020 9:46pm (6 months ago)

    I did not know the entire benefits of Garmin Nuvi Map Update. But since I have read this blog on map update, I have installed all available updates for my garmin device. I must say that this piece of blog has helped me improve navigation experience. I am not suggesting all my friends to read this blog and get Garmin map update with this team. you can contact us at toll-free number +1 888-309-0939.

    https://www.garminnuvimapupdate.com/

  • Garmin Express 15/07/2020 8:29pm (6 months ago)

    I get to know about the Garmin Map from one of my friend, he told me how efficiently it works. Now its been a year since I am using Garmin Express. I can recommend everyone to try Garmin GPS and make their experience as great as mine. For any information call +1-888-309-0939 for instant help from Garmin GPS experts.

    https://www.garmingpsmapupdate.com/garmin-express/

  • Garmin Express 15/07/2020 8:27pm (6 months ago)

    I get to know about the Garmin Map from one of my friend, he told me how efficiently it works. Now its been a year since I am using Garmin Express. I can recommend everyone to try Garmin GPS and make their experience as great as mine. For any information call +1-888-309-0939 for instant help from Garmin GPS experts.

    https://www.garmingpsmapupdate.com/garmin-express/

  • Dissertation Help 15/07/2020 1:01am (6 months ago)

    We are here to provide the best help in making the dissertation so proper and help in making the work so better by which you can get the correct and true information through us

  • garmin express 07/07/2020 7:13pm (7 months ago)

    Garmin express - Garmin express is a software application designed by the company to update, install and manage all the garmin devices from your desktop only.
    <a href="https://www.mygarminexpress.com">garmin express</a>

  • AOL IMAP settings 06/07/2020 9:12pm (7 months ago)

    Due to some AOL IMAP settings problems, I am getting problems to open them appropriately. I have taken online help from AOL technicians, but nothing is successful. Hence, it has become a big issue for me. Can you advise the best solutions for solving settings problems?

  • Nicol Smith 06/07/2020 8:17pm (7 months ago)

    I’m really impressed about the info you provide in your articles. I must say am highly overwhelmed by your whole story. It’s not easy to get such quality information online nowadays. I look forward to staying here for a long time.

  • Norton.com/setup 02/07/2020 12:27am (7 months ago)

    very natural and conveying one..  best way to foster goodwill and a do a good deed then to pass on an idea, free to anyone.

  • Best Services 26/06/2020 6:47pm (7 months ago)

    In Our academic service, we provide introduction background information, lays out the scope and direction of the essay, and states he thesis.

  • <a href="https://mysilverservice.com.au/">silver service taxi booking</a> 26/06/2020 6:46pm (7 months ago)

    My silver service offers you Daewoo cab service, essentially as affordable cab service to facilitate Daewoo Express bus passengers only.

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