The Federal Court has again ruled invalid the widespread practice of hiring permanent staff in stable work patterns, but labelling them a ‘casual’ to avoid paid sick leave and holiday obligations. The legal principle — substance over form — is simple: If an employer and employee have a mutual expectation of an ongoing, regular pattern of work, it is not casual employment, regardless of any false label the HR department stamps on it. Business lobbyists are apoplectic because their members have exploited this ‘sham casual’ scam for decades, but now the $8 billion back pay bill is catching up with them. Needless to say, the Morrison Government is already considering passing legislation to retrospectively legalise this wage theft. (Despite the shrieking of the usual suspects, none of this is really new. The Federal Court made a very similar decision about the same company in 2018, and at the time, the big business lawyers at Corrs Chambers Westgarth noted, “To the extent that the Court’s decision … confirms the common law approach to defining casual employment, it is unremarkable. However, what it does highlight is the need for employers to review the substance of their employment relationships, and how their casual employees are engaged in practice.” All that has changed is employees are starting to challenge the scam in court.)
25 May 2020