Permanent vs casual employees; the distinctions

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One of the fundamental distinctions between permanent employees and casual employees, is that the former are entitled to  full pay if they present for a period of ordinary work irrespective of whether work is available or not, unless the employer can rely upon an express right not to do so, for example a lawful stand down. The onus is upon the employer to demonstrate such a right.

“A permanent employee is entitled to be paid the amount due in respect of ordinary hours each week. Unlike casual employees, the employer was not entitled to pay them only for hours actually worked. Setting aside cases of properly authorised stand downs, an employee is entitled to wages for attending work even if no work is available: Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; 185 FCR 383 at [15]; Vehicle Builders Employees Federation of Australia v British Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70 at 74-75. That is the privilege of permanent workers and is part of the quid pro quo for lower wages associated with permanent work.

To the extent that an employer relies on an exception to the general obligation to pay wages—by reason of stand down or otherwise—it bears the onus of proof that the exception applies: Townsend v General Motors Holden (1983) 4 IR 358. That is a particular manifestation of the general principle that a person seeking to rely on an exception to a general obligation bears the onus of proving that the exception applies.

I accept those submissions.”

United Voice v Phillip Cleaning Service Pty Ltd (2017)] FCA 392 delivered 21 April 2017 per Jagot J

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