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Master Builders SA
August 2018
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Federal Court finds casual worker entitled to annual leave
Federal Court finds casual worker entitled to annual leave
WorkPac Pty Ltd v Skene [2018] FCAFC 131 (16 August 2018)
In a concerning decision for employers who employ casual employees, a full Federal Court has upheld a decision of the Federal Circuit Court which found that a casual truck driver was entitled to paid annual leave under the National Employment Standards (NES). 

The employee was employed as a “fly in, fly out” dump truck operator at a Queensland coal mine by a labour hire company. The employee worked a 7 days on, 7 days off FIFO roster. Importantly, the roster was continuous and set 12 months in advance. The pattern of work was not subject to fluctuation and there was an expectation for the employee to be available in accordance with the roster on an ongoing basis. The employee worked continuously over a two and half year period of employment, except for one unpaid break of 7 days.

At first instance, the Federal Circuit Court found that despite the employee being employed as a casual under the company’s enterprise agreement, the true nature of the employment in practice was permanent rather than casual. Accordingly, the employee accrued entitlements that apply to permanent employees under the NES, including paid annual leave, which was payable on termination of the employee’s employment.

Following an appeal by the employer, the full Federal Court upheld the decision at first instance. The Federal Court found that the regular and predictable pattern of work did create an entitlement to annual leave under both the enterprise agreement and the NES. The Federal Court found that it was not clear from the terms of the contract that the employee’s flat rate included a casual loading, and nor did the agreement define or describe him to be a casual employee. The Court noted that the payment of a casual loading in itself is not the only relevant indicator of casual employment. It found that there must also be the “essence of casualness” which was absent in this case.

The decision increases the risk of casual employees being found, at law, to be permanent employees, and therefore entitled to NES entitlements including paid annual leave, personal/carer’s leave, notice of termination and redundancy pay. Alarmingly, these entitlements could be held to apply to casual employees, even where there is evidence that casual employees have been paid a casual loading in lieu of the entitlements. Employers also face financial liability arising from a breach of the NES in circumstances where a permanent employment relationship is found to exist.

In light of the decision, employers should review all arrangements relating to the engagement of current and future casual employees. It is essential for all casual employees to be engaged under well drafted employment contracts, and for the relationship to operate on a genuine casual basis, in practice. For a genuine casual employment relationship to exist, there should be no commitment to the duration, pattern or continuing nature of employment, and the pattern of work should be irregular or uncertain. For further information or advice, please contact the IR team on 8211 7466.
Unfair dismissal? Representation for members
Unfair dismissal? Representation for members
The Master Builders SA IR Team can represent your business in relation to employee claims including unfair dismissal, general protections and underpayment of wages. We have extensive experience with these matters and can provide pragmatic, commercial advice to minimise the cost to your business, and represent you at conciliation conferences and hearings. Contact us today on 8211 7466 to find out more.
IR Seminar - 19 September
IR Seminar - 19 September
Event Details
Date 19 September 2018
Time 5pm
Venue Master Builders SA - 47 South Terrace, Adelaide
Cost FREE for members


Did you know wrongly classifying employees as independent contractors can expose your business to common law employment claims for unpaid employment entitlements, workers’ compensation claims, unpaid superannuation, payroll tax liability and sham contracting?

This seminar will analyse the criteria that applies to the common law test of employment as well as specific rules that apply under superannuation legislation and the “building work” deeming provisions in the Return to Work Act. The seminar will identify the risks to businesses and individual directors, and provide tips on how to minimise these risks.

Don’t miss this opportunity to attend an important and topical IR seminar. FREE for members.
Members legal advice service
Members legal advice service
Master Builders SA is pleased to offer members a free face-to-face initial legal advice service for construction law matters. This service is provided by experts from leading South Australian construction law firm Fenwick Elliott Grace.

Members can seek advice in respect of a number of issues including contracts, disputes, industry specific matters, tenders and security of payment.

This service is available on the first Monday of each month at Master Builder SA, Level 1, 47 South Terrace Adelaide.

Contact the Industrial Relations Team on 8211 7466 to book your 20 minute session.
FREE IR evaluation
FREE IR evaluation
Master Builders SA offers free industrial and workplace relations evaluations to members to assist your business to comply with continually changing and complex workplace laws. Contact us today on 8211 7466 to arrange a comprehensive review of your business' employment practices.
Enterprise Agreements
It is important for businesses to ensure that they are covered by enterprise agreements that are current. If you don't have a current enterprise agreement in place, contact the Industrial Relations Team on 8211 7466. We can assist with preparing new agreements and reviewing and updating existing agreements.
CFMMEU penalised $81,600 after threatening to 'go to war' with Royal Adelaide Hospital subcontractor
On 27 August the Federal Court penalised the CFMMEU $81,600 for the conduct of Assistant Secretary Jimmy O'Connor, and a site delegate, Jack Merkx, for attempting to coerce a subcontractor to terminate a worker and replace him with a union office holder at the Royal Adelaide Hospital site in 2014.

The CFMMEU was fined $71,400 and Merkx $10,200. O'Connor had previously been penalised $12,000 for his conduct at the site after he was found in contempt of court for breaching an earlier injunction.

The Federal Court found that in May 2014 Merkx approached a subcontractor at the project on at least three occasions and demanded the subcontractor terminate a worker because he would not join the union. Merkx and O'Connor then met with the subcontractor and demanded to know why the union office holder had not been found a job. O'Connor threatened that "If you don't find him a job, we'll go to war with you. You know how it works."

In his judgment Justice Besanko said:

"The threat of going to war was a threat of unlawful, illegitimate, unconscionable action... they wanted BNC to employ Mr Clark who was on the CFMEU executive and they wanted the termination of (the worker's) employment because he would not join the CFMEU... there is no evidence of contrition, and in fact, the respondents sought to downplay the seriousness of the threat."

ABC Commissioner Stephen McBurney said the court's findings reaffirmed that discrimination and threats of this nature will not be tolerated on Australian building sites.

"The union officials showed complete disregard for the rights of the worker. Any worker must have a right to choose to join or not join a union. The CFMMEU officials also had no qualms about intimidating the subcontractor by threatening his business. The absence of contrition only adds to the gravity of the unlawful conduct in this case. In the first two months of this financial year the courts have confirmed penalties of $1.04 million against the CFMMEU."

This case is one of many that highlights how important the ABCC is for our industry. Unfortunately, Labor leader Bill Shorten has vowed to abolish the ABCC if Labor is elected in the Federal Election, which must be held before May 18 next year.
Federal Court finalises personal payment order on CFMMEU official
A full Federal Court has finalised the personal payment order for a CFMMEU official (Joseph Myles) to pay a fine of $19,500, and prohibits the union from paying the fine on his behalf.  The decision follows the High Court ruling in February which held that the Federal Court did have the ability to impose personal payment orders on union officials who breach the Fair Work Act 2009.

In 2013, Mr Myles organised a blockade of a Melbourne construction site which used a number of vehicles and individuals to prevent a critical concrete pour. The blockade was implemented as a means of coercing the head contractor to agree to have a CFMMEU delegate on the site. Mr Myles also threatened the site superintendent with “war” if his demand was not met.

The personal payment order is the first of its kind, and strictly prohibits Mr Myles from seeking or accepting any money or financial benefit from the CFMMEU to pay the penalty. In addition to imposing the personal fine on Mr Myles, the Full Federal Court almost doubled the fine originally imposed on the CFMMEU for its role in the breaches, to $111,000.

The payment order was accompanied by a punitive penal notice to Mr Myles and the CFMMEU, putting them on notice of punishment including imprisonment or sequestration of property if they disobey the order.

The Australian Building and Construction Commissioner (ABCC), Stephen McBurney, welcomed the decision and said that the order “sends an important message that union officials have to comply with the law like everyone else and should not expect union members to pick up the tab for their unlawful conduct.”

Following this landmark decision, the ABCC has confirmed it is seeking personal payment orders against a further 22 CFMMEU officials in 14 other matters currently before the Courts.

Master Builders SA is hopeful that the practice of the ABCC seeking, and the Courts imposing, personal payment orders on union officials will act as a deterrent for unlawful union behaviour in the construction industry. Officials will be personally held to account, and can no longer rely on significant CFMMEU funds to pay personal fines that are imposed on them.

Acting State Secretary found guilty of Fair Work breach
A Federal Court Judge found Acting State Secretary Andrew Sutherland contravened three sections of the Fair Work Act by blocking a crane at a Queensland work site in 2012. Sutherland was an organiser for the CFMEU's Queensland branch at the time of the offence.

Justice Reeves found CFMEU officials guilty of contravening the Fair Work Act in four separate incidents, including when Sutherland and fellow organiser Paul Cradden stopped work on the Brisbane Port Connect project by blocking a crane belonging to Universal Cranes, which had not signed a CFMEU model workplace agreement.

Justice Reeves found Sutherland was "directly involved" in blocking the crane, and had also warned the project manager that work would continue to be stopped if he did not change crane companies.

"Mr Sutherland had no legitimate entitlement to enter the Port Connect site and he certainly had no legitimate entitlement to block the use of the Universal Cranes Franna crane on that site on that day."

At time of print, Justice Reeves was yet to determine what penalties will apply to the union officials, including Queensland state secretary Michael Ravbar.
CFMMEU charged with criminal cartel behaviour
The ACCC's investigation and subsequent charges of alleged cartel conduct against the CFMMEU in the ACT stem from evidence heard in the Heydon Royal Commission.

Media reported CFMMEU officials allegedly told scaffolding companies they needed to bring their prices up to meet the cost of the union's 2013 enterprise agreement and told them the union had done the same thing for steel fixer companies. Master Builders Australia CEO Denita Wawn told the Australian Financial Review that the cartel charges highlighted conduct that was "described by some as the union's business model."

"Heydon's final report was filled with examples of CFMEU tactics deployed against builders and subcontractors to exert control over the industry and get them to sign union deals," she said.
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