Proctor : December 2018
16 PROCTOR | December 2018 His Honour conducted a detailed review of existing case law,3 ultimately finding that whether an employee is casual is not determined by the status allocated by the employer, or the payment of a casual loading, which are simply “matters to be taken into account in determining the true character of the employment”. 4 Instead, the most significant and persuasive factor is whether the nature of the employment is unpredictable, with an “absence of a firm advance commitment” from either party as to the length of the employment and the days or hours to be worked.5 In determining whether Skene’s employment contained this ‘essence of casualness’, his Honour held it was particularly relevant that Skene’s employment was: • regular and predictable, with a stable and organised roster issued 12 months in advance • continuous, save for one unpaid absence of seven days arranged directly with Rio Tinto • facilitated by a fly-in, fly-out (FIFO) arrangement and the provision of accommodation, all at Rio Tinto’s expense • not subject to significant fluctuation, with hours of work regular and certain. His Honour found there “was plainly an expectation that Skene would be available, on an ongoing basis”,6 to perform his duties in accordance with his roster, with this expectation reflected in the FIFO arrangement and Skene’s terms and conditions of employment. In his Honour’s view, this was inconsistent with casual employment, which would allow Skene to elect which days he wished to work, if any.7 On this basis, his Honour held that Skene was “other than” a casual employee for the purposes of section 86 of the FW Act and therefore entitled to the leave provided for in Div.6. Skene a casual employee pursuant to the agreement In determining whether Skene was a permanent or casual employee for the purposes of the agreement, it was His Honour’s view that he was not required to objectively determine the true nature of Skene’s employment. Instead, he applied a subjective test, on the basis that he was only required to determine whether Skene was a casual for the purpose of the agreement. In his Honour’s view, clause 5.5.6 of the agreement – “[a]t the time of their engagement, [WorkPac] will inform each [employee] of the status and terms of their engagement” – provided that this was determinable by WorkPac at the time of Skene’s engagement. His Honour held WorkPac’s titling of its employment offer to Skene – ‘Notice of Offer of Casual Employment’ – was sufficient to establish that WorkPac had informed Skene that he was engaged as a casual employee, and as a result, Skene was a casual for the purposes of the agreement and therefore unable to access the leave provisions contained in clause 19.1 .1 of the agreement. The agreement leave provisions were more generous than those provided for in Div.6 of the FW Act. Appeal decision Skene a permanent employee pursuant to the FW Act On appeal, WorkPac maintained its position that the term ‘casual employee’ in section 86 should be construed, not by reference to its legal definition, but instead with reference to a purportedly commonly accepted non- legal industrial meaning, being that: a casual employee is one who is designated as such by the industrial instrument that covers them. This contention was again rejected, with the Full Court reiterating Jarrett J’s interpretation of the phrase ‘casual employee’. 8 In its reasoning, the Full Court emphasised the long history of use of the phrase ‘casual employment’ for the same purpose in federal industrial legislation, with the ensuing extensive judicial consideration resulting in the phrase acquiring a legal meaning. Given the “abundance of authority for the proposition” that Parliament intended words to bear meanings judicially ascribed to them, it was, in the Full Court’s view, difficult to accept that Parliament would have not provided a clear indication of a contrary intent if there was such an intent.9 Their Honours considered the absence of such a clear indication to be “significant”. 10 It was also the Full Court’s view that to define ‘casual employee’ by reference to meanings derived from awards and enterprise agreements would be to invert the hierarchy of terms and conditions of employment, of which the National Employment Standards (NES) form the pinnacle. Given that the FW Act “expressly and in clear and unambiguous language” states when “criteria of eligibility to an entitlement has been given over to an applicable award or enterprise agreement to define or describe”, it was the Full Court’s view that such an intent could not be presumed of the legislature in s86 in the absence of clear language. 11 In relation to WorkPac’s argument that finding Skene to be a permanent employee would result in double-dipping (on the basis that he had already been paid his leave entitlements by way of a casual loading), the Full Court opined that it was not clear that Skene had been paid casual loading at all, given the lack of any breakdown in what made up his ‘flat rate’. Furthermore, their Honours noted there was no requirement within the NES to pay a permanent employee a casual loading and therefore “as the hierarchy established by the FW Act must envisage, no ‘double dipping’ is possible.” 12 Regardless, even if Skene was paid a casual loading, the Full Court held this was not determinative of whether he was a casual employee for the purposes of s86. Instead, the Full Court emphasised “the importance of the ‘essence of casualness’ referred to in Hamzy”,13 with “the indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability” – being “the usual manifestations of an absence of a firm advance commitment”. 14 To further explain this ‘essence of casualness’, their Honours provided the example of a relief teacher employed consistently over a period of a year as the result of a number of illnesses and departures within a school. While such employment was consistent, at no time was there an “advance mutual commitment to on-going employment on an agreed pattern of ordinary hours of work”, 15 with work only offered on the basis of organisational needs as they arose. This could be contrasted with Skene’s employment, in which the “pattern of work was ‘regular and predictable’, ‘continuous’ and ‘not subject to significant fluctuation’ in circumstances where ‘there was plainly an expectation that Skene would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster’”. 16 Skene a permanent employee pursuant to the agreement Skene appealed Jarrett J’s finding that he was not a casual employee for the purposes of the agreement. In considering the appeal, the Full Court noted that a broad purposive approach is to be taken in interpreting industrial agreements. However, when a term is undefined, unless there is a contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning – suggesting that ‘casual’ was intended to mean casual employee in its legal sense.