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One million casual workers granted access to annual, sick and other leave

May 25, 2020

The Federal Court’s landmark ruling last week could transform the lives of hundreds of thousands of casual workers.

The Australian Workers’ Union has long campaigned against the increasing casualisation of the workforce which has led to widespread rorting.

Now, around one million Australians, who undertake regular shifts rostered in advance and are in all intents and purposes permanent employees, will be entitled to annual leave, sick leave and all the other rightful entitlements that full-time employees get.

As a result of the decision, many casual workers could also receive substantial amounts of back pay for the entitlements they missed out on.

The Federal Court case concerned a claim by miner Robert Rossato, who claimed he was owed leave and public holiday entitlements by labour hire business WorkPac.

Mr Rossato worked as part of a crew at mines operated by the Glencore Group that also included permanent employees. They performed exactly the same duties and worked under the same roster.

WorkPac argued that he had no right to annual leave because his contact stated he was a casual worker and that he would be double dipping because casual workers already received an extra 25% loading to make up for their loss of such entitlements.

But, the Federal Court ruled in Mr Rossato’s favour stating his employment was ‘regular, certain, continuing, constant and predictable’ and that his employment did not meet the description of a genuine casual employee as one that has “no firm advance commitment from her or his employer to continuing and indefinite work according to an agreed pattern of work”.

It also dismissed WorkPac’s attempt to set-off casual loading payments against leave entitlements, finding the casual loading paid to Mr Rossato was a payment for work performed and not a payment for leave entitlements.

It’s been estimated this ruling will affect around one million workers from across a whole range of industries including hospitality, aged care, hairdressing and the resource sector, which has increasingly turned to using labour hire companies to source workers.

The AWU says the ruling should make employers think twice before hiring ‘full-time’ workers as casuals.

Daniel Walton said: “This is tremendous news for workers across Australia who have been exploited for years. It’s plainly wrong that we have people doing the same job but one is being paid annual leave, and another gets no holiday or sick leave. It’s high time this loop hole is closed once and for all and Australian workers get the entitlements they deserve. We hope the Government will respect the court’s decision and allow this ruling to stand.

“We know that many casual workers struggle to make ends meet and rarely take sick leave even when they need it. This decision will transform their lives.”

Last week’s decision demonstrates that even if a worker has signed a casual employment contract, they may be able to access leave entitlements under the National Employment Standards.

If you think you have been incorrectly labelled as a casual employee by your employer, contact us by filling the below form.

The AWU will help you find out if you are owed leave entitlements and whether you can start enjoying all the important and hard-won benefits of permanent employment.

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