Libby_Campbell web croppedOn 16 August 2018 the Federal Court handed down a significant judgment in the matter of Workpac Pty Ltd v Skene relating to the classification of casual employment. The case involved a dump truck driver, Mr Skene who applied for a “fly in, fly out” position with Workpac at a coal mine operated by Rio Tinto in Central Queensland. Mr Skene was informed the work would be 12 hours per shift, 7 days on, and 7 days off, on a continuous roster arrangement. Mr Skene was successful in obtaining the position and was provided a “Notice of Offer of Casual Employment”, his employment was also governed by an industrial agreement.

Mr Skene commenced work on 20 July 2010 and was provided a roster ending in December 2010. In the first two weeks of work he was provided a different room to stay in each time, he was then assigned a permanent single room and storage in the room for his belongings. In January 2011 and 2012 Mr Skene was provided with a roster for the entire following year in advance.

On 23 April 2012 Mr Skene’s employment was terminated.

The issue before the court was firstly the nature of Mr Skene’s employment and the entitlements that might be available to him based on his employment classification, in particular, Mr Skene argued he was entitled to annual leave and consequential entitlements.

The terms of the offer of employment as signed by Mr Skene were consistent with the employment being an ongoing position in that the hours of work were fixed and payment was regular. This was also reflected in the rosters provided months in advance, as well as the permanent accommodation provided to Mr Skene. He was not able to pick and choose the days he worked, particularly once he was flown to the location. Additionally, the hours did not fluctuate, it was always 12 hours per shift.

Despite Mr Skene being aware he signed the Notice of Offer of Casual Employment, the Court held the offer of employment was not enough to determine a casual relationship existed, but rather the Court was required to look at the real substance of the employment relationship. It was a question of fact whether he was a casual employee or not.

Mr Skene was found not to be a casual employee and therefore was permitted to further entitlements not previously paid to him.

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