Cor blimey; redundancy payments for some casual employees?
S.123 of the Fair Work Act provides that that part of the Fair Work Act does not apply to a casual employee. That Part (called a “Division” by the Act) applies to the NES standards of notice of termination and statutory redundancy entitlements. Industrial and legal practitioners have not unsurprisingly believed that serve as a casual employee did not count as “service” when calculating an entitlement to redundancy based upon length of service.
In an unexpected result, a Full Bench of the Fair Work Commission has held that a period of “regular and systematic service” as a casual employee who has then become a permanent employee is to be counted as “service” for the purpose of determining the amount of notice and redundancy pay to which the employee may be entitled in those circumstances.
A majority (ie surprise, surprise not all three members of that Full Bench) held that the definition of “continuous service” in s.22 of the Act “includes any period of regular and systematic casual employment”, even though that is not what the section actual says. The majority decision, it seems to me, hangs by the merest thread on the proposition that since the section doesn’t expressly exclude “continuous casual serve” it must be taken to include it, even when the Act appears to invite the opposite conclusion in other sections.
It will be interesting to see whether the employer appeals to the Federal Court, in which case I forecast an embarrassing result for the majority of the Full Bench who wrote the decision, or me if I am wrong.
AMWU v Donau (2016) FWCFB 3075 delivered 15 August 2016