Proctor : December 2018
17 PROCTOR | December 2018 Notes 1 Div. 6 of the FW Act imposes a requirement that annual leave entitlements be provided to all workers who are “other than casual employees”: s86 FW Act. ‘Casual employee’ is not defined in the FW Act, nor was it defined in the agreement. 2 Skene v Workpac Pty Ltd  FCCA 3035, . 3 Reed v Blue Line Cruises Ltd (1996) 73 IR 420, Williams v MacMahon Mining Services Pty Ltd  FMCA 511, Doyle v Sydney Steel Co Ltd  HCA 66, Hamzy v Tricon International Restaurants trading as KFC (2001) 115 FCR 78. 4 Reed v Blue Line Cruises Ltd (1996) 73 IR 420, 424. 5 Hamzy v Tricon International Restaurants trading as KFC (2001) 115 FCR 78. 6 Skene v Workpac Pty Ltd  FCCA 3035, [81(e)]. 7 Skene v Workpac Pty Ltd  FCCA 3035, [81(d)]. 8 With reference and examination of further authorities Fair Work Ombudsman v South Jin Pty Ltd  FCA 1456, Ledger v Stay Upright Pty Ltd  FCA 659, Bernardino v Abbott  NSWSC 430 and Fair Work Ombudsman v Hu (No.2)  FCA 1034. 9 WorkPac v Skene, . 10 Ibid, . 11 Ibid, . 12 Ibid, . 13 Ibid, . 14 Ibid, . 15 Ibid, . 16 Ibid, . This article appears courtesy of the Queensland Law Society Industrial Law Committee. Giri Sivaraman is Principal Lawyer at Maurice Blackburn Lawyers and deputy chair of the committee. Paloma Cole is a lawyer at Maurice Blackburn Lawyers. The Full Court disagreed with Jarrett J’s position that cl.5 .5 .6 of the agreement provided the machinery for an employment categorisation process determined by WorkPac, noting that granting employers the power to unilaterally catergorise employees could lead to arbitrary and capricious results. Instead, in the Full Court’s view, clause 5.5 .6 merely imposed an obligation on WorkPac to inform their employees about the status and terms of their engagement; it did not empower WorkPac to specify and determine the terms upon which an employee was engaged. In reaching this interpretation, their Honours noted that express words were used in other parts of the agreement to give WorkPac the power to unilaterally categorise an employee. In the absence of clear language in cl.5 .5 .6, their Honours held that an intent to provide such a significant power to WorkPac should not be presumed. Does Skene reflect the reality of casual employment? The circumstances of Skene’s employment are common among labour-hire employees on long-term placement at specific worksites. It is these workers who are most obviously and directly impacted by the Skene decision. However the premise upon which the Full Court’s decision rests does not necessarily reflect the average casual employee’s understanding of their own work arrangements. It is likely accurate to say the average Australian casual employee would be hesitant to pick and choose their shifts in a way suggested in this decision, for fear that their employer would brand them ‘unreliable’ and stop offering them shifts. Such an arrangement is one with a significant amount of power and control vested in the employer, and has little in common with the reciprocal flexibility described in WorkPac v Skene and its cited authorities. Whether this inconsistency will impact the applicability of WorkPac v Skene to long- term casuals with standard and predictable hours remains to be seen, but the door for recognition of the permanent nature of many ‘casual’s’ employment has been opened by the Full Court. Employment law Different, better. firstname.lastname@example.org schultzlaw.com.au Sunshine Coast 07 5406 7405 Brisbane 07 3121 3240 Gold Coast 07 5512 6149 Michael Callow Travis Schultz What can your client expect when you refer them to us? As a social justice law firm, we are focused on making a positive difference in people’s lives and want affordable legal services to be accessible to all. We do this by keeping our fees lower than the industry average and charge only on the government set Federal Court Scale. Because we want our clients to always get more, in the exceptional case when a cap on costs is to be applied, we cap our fees at only one third of the settlement, rather than apply the normal 50/50 rule. The best of both worlds – lower fees and experience Lower fees does not mean you have to compromise on expertise. Both Travis Schultz and Michael Callow are accredited specialists, each with over 25 years’ experience and provide a personal service everyone can access. Now that is different, better. • Cutting edge expertise, without the price tag. • Compensation and insurance experts. • No win, no pay. • No uplift fees. • No litigation lending for outlays and no interest charges.