This monumental decision will have significant impacts for years to come and thankfully, the High Court has done a better job than Parliament in curing the faulty logic of the lower courts.
We have saved you the trouble of reading the 47-page decision, summarising what you need to know below.
What is a casual employee, and what entitlements do they have?
- It is casual employment if the written employment contract does not include a ‘firm advance commitment’ to the duration, days, or hours of work.
- The terms of the casual employment contract at inception hold greater weight than the conduct of the parties after the fact.
- If there is no written contract, the nature of employment will likely be determined by the conduct and the nature of the relationship between parties.
Why is this decision so important?
- This decision clarifies the final legal position on casual employment. High Court cases cannot be appealed, and decisions are final.
- The estimated $39 billion in underpayment claims from casuals pursuing paid leave entitlements (based on the previous Workpac decisions) can no longer be claimed.
- All previous decisions on how to determine and identify a casual employee have been overruled.
What should employers do now?
- Ensure you have written terms of employment documented for each casual employee at the start of the working relationship.
- Ensure each casual contract is legally drafted to clearly reflect no ‘firm advance commitment’ between parties.
- Do not rely on the Award categories of casual with a simple letter of appointment as this will offer no protection for employers.
- Ensure you understand the changes to casual employment provisions in the Fair Work Act, introduced in March this year. These include the ability to offset any casual loadings paid to workers who pursue claims that they are permanent employees.