Small Business News

'Casual' definition a sleeping giant


Employers should take heed of a Federal Court decision last year that could potentially result in thousands of casual workers claiming employee status and entitlements, workplace relations expert Andrew Stewart has warned.

In a speech to the NSW Industrial Relations Society conference on May 13, University of Adelaide Law Professor Andrew Stewart said Williams v MacMahon Mining Services [2009] pointed to "a massive practical issue" over the legislation's lack of definition for 'casual' workers. The decision found a casual mining worker was an employee because his work was regular and ongoing.

The court ordered MacMahon Mining reimburse fly-in, fly-out miner Adrian Williams for unpaid annual leave entitlements after finding he was an employee, not a casual worker as his contract stated. In the absence of a definition of 'casual' worker in the IR legislation, Federal Magistrate Toni Lucev referred to a decision by Justice Michael Moore that characterised casual work by "informality, uncertainty and irregularity". He found Williams had a clear roster, he knew exactly when he was working and when he wasn't, and that his work was ongoing not temporary. He dismissed employer MacMahon Mining's argument that Williams' contract defined him as a casual, finding you cannot "contract out" of the Act. The Federal Court upheld the decision in November last year.

While the case concerned the Workplace Relations Act 1996, Stewart said the same ruling would apply under the Fair Work Act - which also lacks a definition. Further, there was nothing in the judgment that suggested it was specific to the mining industry. "In fact, I think you could find many, many long term casual arrangements, particularly in retail and hospitality industries, but also in many others, in universities for instance, where you have people who are long term casuals whose jobs are not irregular, temporary or uncertain."

"On the face of it, this is a precedent that could be used by many, many thousands, not to say
hundreds of thousands of Australian workers, who finish up their casual jobs and go back to their employer, hat in hand, saying now can I have my annual leave ... if you're in a business that has got a lot of long- term casuals and you haven't thought about the implications of this case if it's followed up - and it may not be - you're doing yourself or your client a disservice."

First published in HR Report 18 May 2011, Issue 489
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