This article originally appeared on WorkplaceInfo. (03/02/11)
A ruling by the Federal Court has found an employee who was engaged as a casual employee was actually a permanent employee under Industrial Relations law.
The mining worker was awarded $22,000, with the court finding he was not a casual, despite being engaged and paid as one. The court also found that his employer could not offset a component of the all-up rate it had paid him against the annual leave he was owed.
The mining company engaged the worker as a 'casual' at the Argyle Diamond mine (Western Australia) in November 2006. The letter of employment provided for a $40-an-hour all-in rate, which included 'payment for all hours necessary to undertake your rostered duties, and as a casual employee, a loading in lieu of paid leave entitlements'.
The company terminated his employment with one hour's notice – as per his contract – in December 2007. The CFMEU argued the worker was owed unpaid leave and one week’s pay in lieu of notice under the Workplace Relations Act 1996.
Not a casual
Justice Barker upheld an earlier finding by a Federal Magistrate that the employee was not a casual, saying it was entirely open for the Federal Magistrate to have come to that conclusion.
Justice Barker stated that the true legal relationship was determined by the facts:
"… the Full Federal Court in Hamzy v Tricon International Restaurants ... said that the term 'casual' embraced an employee 'who works only on demand by the employer' … 'the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work' … while the 'casual provisions', as [the employer] MacMahon call them, expressly refer to Mr Williams as a casual employee, … [it is] well understood that the descriptions supplied by such an instrument will not override the true legal relationship that arises from a full consideration of the circumstances…"
Annual leave payment
The employer argued that the contract provided for payments to cover annual leave, but Justice Barker found that the legislation had been breached by inserting this term:
"While it may be correct to say that some attempt has been made in the contract here to pay an addition additional sum allocated to potential leave entitlements, the effect of such a contractual provision is, in fact, to exclude an entitlement to be paid annual leave and other forms of leave under the Act at the termination of the employment. In those circumstances, s173 of the WR Act applies to render such a contractual provision of no effect…"
Full text of this case:
Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 (30 November 2010)
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