Despite getting paid 25 per cent loading in lieu of paid leave and other entitlements, casual workers have always been one of the most vulnerable groups in the workforce. This really hit home during the COVID-19 crisis, with many casual workers out of work without pay. But a Federal Court ruling last week could have big implications for casual workers – and their employers.
The case involved a Queensland mine worker, Robert Rossato, who was employed for three-and-a-half years by a labour hire company across different projects as a permanent worker.
Despite his contract describing the worker as casual and paying the 25 per cent casual loading, the Court found he still had an entitlement to leave that could not be offset through the loading because it did “not have a close correlation to the leave entitlements.
The Court ruled that his shifts were “regular, certain, continuing, constant and predictable”, and therefore not casual work.
This ruling could impact more than one million casual workers who are working full-time hours, and could cost businesses $8 billion in back pay.
The Court also decided that given his entitlement to leave wasn’t offset by his casual loading; Rossato wouldn’t have to pay back the extra pay earned as a “casual”.
While the decision doesn’t automatically apply to all casual workers, those working permanent hours could question whether they are entitled to the same benefits – such as paid holiday and sick leave – as permanent employees.
According to the Australian Industry Group there are around 2.6 million casual workers in Australia, with 1.6 million of them in steady work, giving industry groups every right to be nervous.
However, Industrial Relations Minister Christian Porter told AAP that the decision would be bad for businesses that have already taken a huge hit from the coronavirus pandemic.
“Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options,” he said.