Proctor : December 2018
14 PROCTOR | December 2018 ‘CASUAL’ BY NAME, OR NATURE? Court reminder that designation and loading may not be enough After four years of litigation, WorkPac Pty Ltd v Skene  FCAFC 121 has provided employers with a significant reminder. The decision by WorkPac Pty Ltd (Workpac) not to appeal the Full Court of the Federal Court of Australia decision in this case also brings to an end the long legal campaign by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to have member Paul Skene recognised as a permanent WorkPac employee. The Full Court’s recent judgment has come under significant scrutiny and criticism from employer groups and the Federal Government, despite it being, in essence, a decision that largely restates existing common law principles. At the centre of the controversy is the Full Court’s finding that being designated as a casual employee, and paid a casual loading, is not determinative in and of itself of a person’s employment being casual. Instead, courts will look for the “essence of casualness” – a lack of a firm advance commitment as to the provision (or acceptance) of work. Relevant facts Skene was employed by WorkPac for almost two years from 20 July 2010 to 17 April 2012. Throughout the entirety of that period, he was employed, ostensibly as a casual, on a flat rate which was said to include loading (though the rate was not provided), and placed to work as a dump truck driver in Rio Tinto Coal Australia Pty Ltd’s Clermont mine. Skene’s employment contract with WorkPac provided that his employment was terminable by either party on an hour’s notice, and stated that he was covered by the Workpac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (the agreement).