When is a casual employee not a casual?

Under the common law, an employee in Australia will be regarded as a casual employee if his or her work is intermittent, in the sense that it will only be offered by the employer when it is available; see  Hamzy v Tricon International Restaurants trading as KFC (2001) 115 FCR 78; cf Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union (2013) FWCFB 2434 (in which the Full Bench of the Fair Work Commission held that employees who were engaged and paid as casual pursuant to an industrial instrument were “casual employees” for the purpose of the redundancy provisions of the Fair Work Act.)

Thus at common law it is the informality, uncertainty and irregularity of the engagement that gives employment the characteristic of being casual. It may manifest itself in irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability. Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable. However, the absence of these features does not necessarily mean the employment is not casual.

Since 1 January 2010 with the introduction of the Fair Work Act, the NES and modern awards, the latter, which commonly specify that a casual employee “is an employee engaged as such”, many employers have operated on the basis that for award or agreement based employees, the fact that they designate an employee as a casual and pay them a casual loading is sufficient to make them a casual under Australian law. In doing so, they have committed to employ them on an ongoing, regular and systematic basis

However In  WorkPac Pty Ltd v Skene  [2018] FCAFC 131 a Full Court of the Federal Court of Australia found that a labour hire employee engaged as a “casual” and supplied to work as a dump-truck operator at a mine, was not a casual because his employment was:

• regular and predictable (i.e. his working arrangements and shifts were set 12 months in advance in accordance with a stable and organised roster)
• continuous, save for one period of seven days that went unpaid but which was arranged with the host employer; and
• facilitated by the fly in, fly out arrangement and the provision of accommodation at no cost to himself, which was inconsistent with the notion that the employee could elect to work on any day and not work for others without first making the necessary arrangements with the host employer.

There was a clear expectation that the employee would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster, until such time as the assignment was complete. The work undertaken by the employee was not subject to significant fluctuation across days, weeks, months or even years. The hours of work were regular and certain.

The Court also found that the employee was not adequately designated as a casual under the relevant enterprise agreement, but made the broader finding that award or agreement designation was insufficient to determine an employee’s entitlements under the Fair Work Act.

Although the findings are specific to these facts, they have much broader implications for all employers who engage casuals.