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

  • KwgdKimb 02/12/2020 1:27am (54 days ago)

    school assignments <a href="https://researchpaperssfk.com/#">persuading essay</a> essay paper help

  • Change Spectrum WiFi Password 01/12/2020 10:00pm (54 days ago)

    Thank you for your sharing. Thanks to this blog I can learn more things. Expand your knowledge and abilities. Actually the article is very practical. Thank you.

  • writing a doctoral dissertation 01/12/2020 9:49pm (54 days ago)

    Dissertation proposal template https://dissertationhelpvfh.com/ buy dissertation online

  • JgscidobE 01/12/2020 6:45pm (54 days ago)

    pay to do my accounting homework <a href="https://thesisbyd.com/#">essentials of writing biomedical research papers</a> do my homework app

  • daredevil gaming 01/12/2020 11:50am (54 days ago)

    fnasjdf erhfuefuef ugfu vf fie rejefmd vuer vreuiferd

  • ROkas 01/12/2020 11:48am (54 days ago)

    faerhjik;,lmrne gsfd g rsbgg bgv vj vugrugjrmssvkfisv sfd ffgg

  • Fsftough 01/12/2020 9:31am (54 days ago)

    first day at college essay <a href="https://essayhelpbgs.com/#">writing a personal narrative essay</a> essay on linear equations

  • Play School in Chennai 30/11/2020 11:17pm (55 days ago)

    Children love to play in seedacademy. It is not only fun but also essential for growth and development. During these early years, play should not be restricted to indoors only. Outdoor play is equally important and an inevitable part of a child’s life. For more information kindly visit us https://www.seedacademy.in/

  • story viewer 30/11/2020 6:52am (55 days ago)

    What if you're an unqualified employee in a field, with no contract, and they want to provide you with responsibilities that were specifically mentioned that you just would not be answerable for?

  • where can i buy essays online 29/11/2020 11:33pm (56 days ago)

    Buy essays online reviews https://buyessayhelpbtg.com best website to buy essays

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