The now notorious Workpac decision has opened up a can of worms about the true nature of the “casual” employment category and what the casual loading covers, or can cover in case of a dispute. 

Workpac essentially ruled that there was nothing casual, in the sense of ad hoc, lacking regularity or predictability, about the employment of the worker concerned. So, despite the higher wage paid and all the evidence in the employment documents of the use of the word “casual”, the worker was in fact a ’non-casual’ employee. 

It followed then, that as a non-casual worker, he was entitled to annual leave. But the court decided that since there was no specific amount in the hourly rate paid to the so-called casual which could be attributed to annual leave compensation, then no amount of his hourly rate could be off-set towards the annual leave liability. So he will effectively get paid twice. 

It is not so much the issue of re-categorising someone after the event that has caused concern from those who employ casuals, but the fact that there was no offsetting, that this decision effectively sanctioned double-dipping. 

The legislation is at fault. It defines a “long term casual employee” but not a “casual employee” and given the way the clauses about the NES on annual leave are written, the court had little choice but to find as it did.

The NES defines annual leave as a period of time for which the employee must be paid at the time the leave is taken, not paid each hour, day or week as they work. So off-setting in a case like this is probably not available even if the employment contract spells out a % attributable to annual leave in a casual’s hourly rate. 

Employers, employees, their representatives, the tribunals and experienced judges all know what is going on. We all know that for decades and decades, employees have worked as “permanent casuals”, an oxymoron elsewhere in the world, but common as grass here. 

Given the complexity of Australia’s labour regulation, it’s not surprising that the search for simplicity and certainty from employers, and desire for more cash in the pay packet for employees, has created this hybrid employment category. However all this is now open to challenge, and literally millions of people are affected by it. 

Until the law recognizes the realties on the ground, this problem won’t go away. And vulnerability to suffering the same fate as this employer will remain.

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