In my experience, clients are often, understandably, surprised by the range of areas where uncertainty in the law can have a significant impact upon the way they need to order their business affairs.
In the modern era, where legislation regulating business conduct proliferates, it is understandable that some level of certainty as to the law is assumed. Often, though, the law remains fluid in its interpretation and application.
One important area where this is the case is in relation to employment law. The rise of the labour hire industry has been fertile ground for litigation which seeks to clarify the employer/employee relationship, as described in the recent decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131. All employers of casual workers, though, are affected by the decision.
In that decision, the Full Court of the Federal Court made findings about what it means to be a ‘casual’ employee, for the purposes of the National Employment Standards.
The Court decided that it did not matter whether an employee was designated by their employer as casual, told their employment was casual when they were hired or even paid at a casual rate. It gave a terminated employee holiday pay at the rate his employer deemed a casual rate.
The Court found that what made someone’s employment casual was an “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) an employee will work,” and whether their engagement is one of “irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work”.
This decision is likely to confuse any employer who had relied on recent decisions of the Full Bench of the Fair Work Commission, which found that an employee was properly designated as casual where they were engaged and paid as such under the Modern Awards.
Employers will need to tread carefully and seek advice about their employment arrangements, to avoid accruing ‘silent’ liabilities for employee entitlements they have not budgeted for.
The information contained in this post is general only and you should contact our office for advice tailored to your personal circumstances.
