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

  • mcafee.com/activate 26/05/2020 10:24pm (8 months ago)

    McAfee Activate - These days internet attackers are creating advanced malware and viruses to steal valuable information from your computers. In order to get rid of these threats, you should install a robust and reliable antivirus program on your Mac or PC. McAfee is one of the most known security suites for computers and other digital devices. By installing McAfee in your computer, you can prevent your device from such internet threats and malicious software. McAfee has won the trust of millions of customers worldwide.

  • resume and linkedin profile services 21/05/2020 11:45pm (8 months ago)

    Resume101 offers help with writing or fixing your resume, CV, or cover letter. Learn more about this service.

  • Roku.com/link 21/05/2020 10:45pm (8 months ago)

    If you wish to add your favorite platforms on Roku, then you’ll have to activate the device you are using. Open a web browser on your PC and navigate to the Roku.com/link website. Submit the code and activate the device.

  • nbc.com/activate 21/05/2020 6:55pm (8 months ago)

    If you want to activate the NBC channel on the streaming device, you can process the steps with the channel app download via the channel hub.

  • nbc.com/activate 20/05/2020 11:35pm (8 months ago)

    The NBC channel is well-known for broadcasting some of the finest programs for the audience to binge-watch and spend their time in a resourceful way. You can cast the Nbc.com/activate shows from the smartphone directly to the television

  • AndrewMof 19/05/2020 5:19am (8 months ago)

    lesbian sex cams <a href=https://sexcams00.live>sexcams00</a> chaterbait sex cams.
    free group sex cams <a href=https://sexcams00.website>real life sex cams </a> sex tube cams.
    24 7 sex cams <a href=https://sexcams00.work>gay sex cams free </a> best free live voyeur sex cams.
    sex cams xxx <a href=https://sexcams00.site>sexcams00.site</a> local free sex cams.

  • Jaredkex 18/05/2020 7:36pm (8 months ago)

    streamate sex cams <a href=https://sexcams00.live>sex cams </a> local sex cams.
    luve sex cams <a href=https://sexcams00.website>anal sex cams </a> sex cams top 10.
    dirty sex cams dirty sex chat now <a href=https://sexcams00.work>banga sex cams </a> l.ive jap sex cams.
    totally free live sex cams <a href=https://sexcams00.site>sex video live cams </a> forced sex free video cams.

  • Jaredkex 18/05/2020 4:57pm (8 months ago)

    adult live sex cams <a href=https://sexcams00.live>chaturbate free sex cams </a> men and women sex cams.
    xxx sex cams <a href=https://sexcams00.website>sexcams00.website</a> video game girl characters sex mobile browser game cams.
    banga sex cams <a href=https://sexcams00.work>free local sex cams </a> live sex cams sex toys manhunt flix availability:.
    sex cams list <a href=https://sexcams00.site>sexcams00.site</a> best free sex cams in fort worth.

  • nagpur escorts 18/05/2020 4:22pm (8 months ago)

    The Nagpur Escorts Services also spots connected as your girlfriend https://dannyescorts.com/Nagpur-Escorts.html and far half inside the make any difference of sex

  • Jaredkex 18/05/2020 11:48am (8 months ago)

    uk sex cams <a href=https://sexcams00.live>sexcams00</a> sex face to face cams free.
    live home sex cams <a href=https://sexcams00.website>sexcams00</a> sex cams spiy.
    live sex cams naked <a href=https://sexcams00.work>my live sex cams </a> free live home sex cams.
    online sex cams free <a href=https://sexcams00.site>sexcams00.site</a> underage sex cams.

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