Ducks and roosters: employers continue to get the feathers wrong
Most industrial and employment lawyers are familiar with the memorable quote from Re Porter; ex parte Transport Workers Union of Australia (1989) 34 IR 179 but nearly thirty years later employers continue to get it wrong by labelling an employee as a casual when they are not.
It remains commonplace for employees ostensibly to be engaged as casuals but then be treated like full- time employees, for example, by being required to work 38 hours a week on a regular and systematic basis. Each year, the Federal Circuit Court and Fair Work Commission continue to hand down decisions highlighting the practice in workplaces around Australia and the risks to the businesses that flow from the practice - most noticeably, a liability for leave and other entitlements that a casual employee normally would not receive.
“...the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”
In Australian law, the courts have recognised the expression "casual employee" or "casual employment" are expressions with no fixed meanings. Although there is no one definitive test to distinguish between casual and permanent employees, there are, however, several features characteristic of casual employment regularly considered by the courts. Each case must be assessed on its facts.
The essential characteristic of casual employment is that the employer can choose to offer employment for a particular day or days, and the employee has the choice to work [see Reed v Blue Line Cruises Ltd (1996) 73 IR 410]. In short, there is no obligation on the one party to offer work, and no obligation on the other to accept it.
Further characteristics include:
There is no certainty about the period over which employment of this type will be offered – that is, there is an absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work [see Hamzy v Tricon International Restaurants  FCA 1589 (2001) 115 FCR 78].
The work is informal, uncertain and irregular [see Reed and Hamzy].
Usually, it is relevant whether the employee is engaged (at the commencement of employment) as a casual, and whether the employee is paid as a casual: Fair Work Ombudsman v Devine Marine Group Pty Ltd  FCA 1365.
In Williams v MacMahon Mining Services  FCA 1321, 201 IR 123, an employee entered into a written contract that described him as a casual employee and which specified he would be paid a loading in lieu of paid leave entitlements. Barker J found that the work was performed according to a stable roster, was not subject to fluctuation and was not irregular or uncertain. There was a mutual expectation of continuity of employment and the employee did not work for short periods of time on an irregular basis. He also found that the payment of a flat hourly rate that purported to include a loading for various leave entitlements was more indicative of a casual employment relationship than not but concluded the employee was not a casual employee.
In Skene v Workpac Pty Ltd  FCCA 3035, the employee was specifically engaged as a casual employee but worked regular shifts determined 12 months in advance on a fly-in fly-out basis. In Skene, the employee was held to be entitled annual leave under the Fair Work Act 2009 (Cth).
In the recent decision of Apostolides v Mantina Earthmovers and Constructions Pty Ltd  FCCA 279, the applicant was employed as a crushing plant operator in its quarry at Kapunda in South Australia. His employment began in 2000 and he was dismissed in August 2015. The applicant worked a minimum of 38 hours per week on a regular and systematic basis and a considerable amount of overtime. Ultimately the Court ruled that the applicant was employed on a permanent basis and therefore entitled to accrued annual leave and payment in lieu of notice.
The cases show that, in circumstances where permanent rooster is dressed up as casual duck, an employer will not be immune from claims for entitlements normally associated with permanent employment. If in doubt about the rules of engagement, seek advice.