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Landmark decision finds casual worker entitled to paid leave

A series of Fair Work rulings on the entitlements of casual employees, including that a casual is entitled to paid leave, could have significant implications for retailers, an expert says.

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In a landmark ruling last week, the Fair Work Commission granted a casual worker annual leave entitlements, finding that the truck driver, who was found to work regular and continuous hours, was entitled to paid leave.

With 2.5 million casual employees in Australia, the majority of whom are in retail, the decision is a significant one for retailers, and makes it essential that employers are clear on worker’s entitlements to avoid legal liability.

This decision coupled with the recent Fair Work Commission decision allowing casual employees with 12 months of service to request full-time or part-time status illustrates the importance of employers being rigorous in understanding their employment obligations, Senior Employment Relations Adviser from Employsure, Amelia Gagliardi says.

“These decisions will have implications for the preferred business model of many businesses – particularly those in hospitality, food, and labour hire companies, which rely on casual work due to irregular working hours, projects, and seasonal work,” she said.

“We need to be wary of assuming that all casual work is bad. Casual work is valued by employers and employees alike.”

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Although under the Fair Work Act a casual employee isn’t ordinarily entitled to annual leave, the Commission’s finding that the truck driver didn’t meet the definition of casual employee because of his continuous hours of work, makes it crucial that retail employers are fairly and accurately assessing the nature of their employee’s work.

The decision sparked calls from unions for a clearer definition of casual employees under the Act, including from the ACTU’s President Michele O’Neil, who said that the decision makes it critical for employer’s to properly classify employees.

“This is a major blow for employers who want to use casualisation to avoid their responsibility to their employees.

“This decision makes clear that employers seeking to avoid paying people’s entitlements can’t simply rely on classifying workers as casuals.”

The laws outlining the definition of a casual employee need to be clarified, said Ms O’Neill.

“We need to change the rules around casual employment so that employers aren’t able to deny people their rights for years on end.”

But Ms Gagliardi noted that casual work is also about a “win-win” for employers and employees.

“Enjoying the flexibility of hours, having the right to accept or reject work, and in general the hourly pay of casual workers is bolstered by a ‘casual loading’ to compensate for the lack of such leave entitlements — usually amounting to an additional 25 per cent.”

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