FEDERAL CIRCUIT COURT OF AUSTRALIA
| SKENE v WORKPAC PTY LTD | [2016] FCCA 3035 |
| Catchwords: INDUSTRIAL LAW – Whether worker was casual employee or other than casual – entitlement to annual leave pursuant to enterprise agreement – entitlement to annual leave pursuant to Fair Work Act 2009. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 86, 87, 90 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s.45 |
| Cases cited: Director of Fair Work Building Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Hamzy v Tricon International Restaurants (2001) 115 FCR 79 MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 Re Metal, Engineering & Associated Industries Award (2000) 110 IR 247 Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 Wills v Nigaloo Resorts Pty Ltd [2011] FMCA 433 Williams v MacMahon Mining Services Pty Ltd [2009] FMCA 511 |
| Applicant: | PAUL ALEXANDER SKENE |
| Respondent: | WORKPAC PTY LTD |
| File Number: | BRG 457 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 14 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 24 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reed |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr Wood SC with Mr Haddrick |
| Solicitors for the Respondent: | DLA Piper |
ORDERS
The parties agree short minutes of order reflecting the amount of compensation to which the applicant is entitled and which the respondent shall be ordered to pay according to these reasons;
The application be adjourned to 12 December 2016 at 9:30am for further directions concerning submissions relating to the imposition of a pecuniary penalty, if any, upon the respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 457 of 2014
| PAUL ALEXANDER SKENE |
Applicant
And
| WORKPAC PTY LTD |
Respondent
REASONS FOR JUDGMENT
Paul Skene worked for the respondent as a dump truck operator from 17 April, 2010 to 17 July, 2010 and then again from 20 July, 2010 to 17 April, 2012 at coal mining operations carried on in central Queensland.
In these proceedings he claims that he was a permanent full-time employee of the respondent and was entitled to annual leave and consequential entitlements, or payment in lieu of annual leave upon his employment coming to an end. The respondent is a labour hire company that supplied labour to various mining companies. It contends that Mr Skene was a casual employee and not entitled to annual leave and other entitlements he claims or payment in lieu of annual leave upon his employment coming to an end.
In these proceedings Mr Skene seeks:
a)the imposition of pecuniary penalties for contravention of:
i)s.44 of the Fair Work Act 2009 (Cth); and
ii)s.45 item 2 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth);
b)compensation for the respondent’s contraventions of those Acts in the form of…
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- AGLC
- Skene v Workpac Pty Ltd [2016] FCCA 3035
- Case
- [2016] FCCA 3035
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Federal Court was whether Ms Skene was a casual employee or a permanent employee for the purposes of the FW Act. This determination hinged on an analysis of the terms of her engagement and the reality of the working relationship, particularly in light of the definition of "casual employee" in section 12 of the FW Act, which refers to an employee engaged on the basis that the employer makes no promise or commitment to continue employment indefinitely and the employment is terminated upon completion of the task for which the employee is engaged or at the employer's discretion.
The Court found that despite Workpac characterising Ms Skene as a casual employee, the terms of her engagement and the reality of her employment indicated a permanent employment relationship. The Court noted that Ms Skene had a regular pattern of work, was rostered in advance, and was not given the unfettered right to refuse work. These factors, taken together, demonstrated that Workpac had made an implicit commitment to continue her employment indefinitely, and that her employment was not solely dependent on the completion of a specific task or the employer's discretion. Consequently, the Court held that Ms Skene was not a casual employee and was therefore entitled to the leave entitlements claimed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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