Casual employment defined by substance not form

1 November 2018
If an employee has continuous, fixed and predictable work patterns, they are more likely to be considered a permanent employee. Simply calling an employee a ‘casual’ is not enough, even if this is contained in a contract and an employee is paid a casual loading.

In WorkPac Pty Limited v Skene [2018] FCAFC 131 (WorkPac v Skene  the Full Federal Court on 16 August 2018  held that an employee who was described as a ‘casual’ was actually a permanent employee.  This meant that he was entitled to payment for his untaken annual leave.

The decision clarifies that a worker won’t necessarily be a ‘casual’ employee simply because the employer refers to them as such. 

Employees who think that they may actually be working as permanent employees, rather than casuals, should seek legal advice to determine their rights.

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