A recent decision by the Full Bench of the Fair Work Commission (FWC) found that a period of casual employment that is regular and systematic counts as 'continuous service' for the purposes of notice of termination and redundancy pay.
The National Employment Standards (NES) contained in the Fair Work Act 2009 (Cth) (FW Act) provide minimum entitlements to notice periods and redundancy pay based on an employee's service.
Under the FW Act, period of service is the period during which the employee is employed by the employer, but does not include any period of unauthorised absence, unpaid leave or unpaid authorised absence (except community service leave or stand down).
In AMWU v Donau Pty Ltd (2016), a number of permanent shipyard employees who were being retrenched had prior periods of service as casuals. They had been working on a regular and systematic basis, with no break between the casual and permanent periods of service. During their casual employment, the employees received a 25% casual loading.
The decision
The FWC decided whether this prior casual employment was to be counted for the purposes of calculating redundancy pay and notice entitlements.
The FWC noted that a period of continuous service as defined by the FW Act includes a period of regular and systematic casual employment.
Implications for employers
The effect of this ruling would arguably be that prior casual employment needs to be counted for the purposes of:
- redundancy pay and notice;
- annual and personal/carer's leave; and
- the 12-month qualifying period for an employee to have the right to request flexible working arrangements or to take unpaid parental leave.
Please note that this ruling is highly contentious and is likely to be appealed. The Full Bench that issued the ruling was split two–one.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.