Agreement can define ‘casual’ in place of common law def

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Agreement can define ‘casual’ in place of common law def

A Full Bench of the Fair Work Commission has confirmed that an enterprise agreement can specify who comes within the definition of ‘casual employee’ — effectively replacing the common law definition that otherwise would apply.

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A Full Bench of the Fair Work Commission has confirmed that an enterprise agreement can specify who comes within the definition of ‘casual employee’ — effectively replacing the common law definition that otherwise would apply.

[Full text of this case: Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (22 April 2013)]
 
To overcome the common law definition of casual there would have to be a relevant definition in an award or agreement.

The Full Bench overruled the decision of a single commissioner (Booth C) and concluded that certain employees were casuals within the terms of the relevant agreement and so not entitled to redundancy pay:
‘We are satisfied that the Commissioner’s decision is affected by error and that we should grant permission to appeal and do so. … we are satisfied that the employees were “casual employees” within the meaning of s123(1)(c) [and this] excluded them from the notice and redundancy entitlements in Division 11 of the NES.’
Award or agreement prevails over common law

The Full Bench said the meaning of ‘casual employee’ should be assessed from the relevant enterprise agreement or modern award and not the common law.

In this case they were identified as casual at the time of engagement and paid casuals: 
‘… the legislature intended that a “casual employee” for the purposes of the NES would be consistent with the categorisation of an employee as a “casual employee” under an enterprise agreement made under Part 2-4 of the FW Act (or under an “agreement based transitional instrument” such as a workplace agreement or certified agreement made under the WR Act) that applies to the employee or, if no such agreement applies, then consistent with the categorisation of an employee as a “casual employee” within the modern award that applies to the employee ...
 
Subject to any terms to the contrary, a reference to a “causal employee” in an enterprise agreement (or agreement based transitional instrument) will have a meaning consistent with the meaning in the underpinning modern award (or pre-reform award/NAPSA) …’
Review of 2000 decision on casuals

The clause in issue provided that casuals would be engaged by the hour and paid a 25 per cent loading in lieu of leave, notice, redundancy and any other full-time entitlements that do not apply to casual employees.

The Full Bench noted that the AIRC’s Metals Casuals case Full Bench decision in 2000 ‘pointed to workers being casual employees if they were identified as casual at the time of engagement and paid a casual loading ...

The result was that casual employment in federal awards had ‘diverged from the (ill-defined) general law position’.

By the time of award modernisation, a worker was a casual employee if he/she was identified as casual at the time of engagement and paid a casual loading.

The Full Bench also noted that none of the 122 modern awards adopted the common law definition of ‘casuals’. A number contained provisions allowing regular and systematic casuals to convert to permanent employment.

The problem with Commissioner Booth’s decision in this matter was that it would allow for ‘double dipping’. This directly conflicted with that the 2004 Redundancy case, in the view of the Full Bench.
 
Intention of legislation
 
The Full Bench continued — assesssing the intention of the legislation:
‘It is unlikely that the legislature intended that outcome [double dipping]. It is an outcome that is inconsistent with the purpose and objects of the FW Act. It is an outcome that would tend to impede productivity and flexibility (cf s.3(a) and (f)) for the reasons explained by the Full Bench in the Metals Casuals Case ...’
In summary . . .
 
The Full Bench concluded:
‘In summary, the FW Act provides for the regulation of terms and conditions of employment of national system employees through an interrelated system of the National Employment Standards, modern awards, enterprise agreements (and, in some cases, workplace determinations or minimum wage orders). 
 
Having regard to the objects and purpose of the legislation, it is obvious that the legislature intended that those components should interact consistently and harmoniously ...’
The appeal was allowed. The application of the CFMEU was dismissed.
 
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