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Wrongly Classified Casual Worker Awarded 15 Years Of Annual Leave

Wrongly classified casual worker awarded 15 years of annual leave

A quarry worker has been awarded 15-years worth of annual leave after being wrongly classified as a casual worker.

A court found the worker should have been classified as a permanent employee.

The case will have implications for other casual workers who also work regular patterns of shifts over a long period of time.

Wrongly classified casual worker

Michael Apostolides worked at Mantina Earthmovers and Constructions at Kapunda in South Australia between 2000 and 2015.

The company classified him as a “casual” employee, which meant it didn’t have to pay annual leave entitlements.

While the company payroll system listed Apostolides as a casual, he worked full-time hours with substantial amounts of overtime.

In his affidavit to the Federal Circuit Court, Apostolides said during his 15-years working at the quarry, he had not been paid for:

  • public holidays,
  • sick days,
  • and he also did not take annual leave, despite believing it was accruing.

He described it as “like having money in the bank.”

Under cross examination, he said he did not take annual leave because he enjoyed his work.

Additionally, he considered himself a “fairly important cog in the wheel” at the quarry.

Casual loading paid but below award rate

The court heard the company failed to give Apostolides a written contract setting out the basis of his employment.

Mantina paid him a casual loading around 20 percent, however, this did not meet the lawful award rate of 25 percent.

The Australian Workplace Agreement states:

  • Full-time employment means that you are employed on a permanent basis and are required to work an average of 38-hours a week.
  • Casual employment means that an employee works subject to their availability to work and the company’s need for their services.

Court finds worker wrongly classified as a casual

Judge Tony Young said:

“Although there is some variation in the hours, ordinary to the applicant’s payslips from the beginning of his employment show 38 hours-a-week paid at his base rate plus substantial overtime.

“According to ordinary usage of the phrase the applicant was employed “full-time”.

The Court also found the employer wrongly classified Apostolides as a “casual” in the quarry’s internal pay records.

As a result, Judge Young ordered Mantina Earthmovers and Constructions to pay him for the annual leave he accrued during that time.

Employers should make sure paperwork accurate and up to date

Industrial advocate Miles Heffernan says employers must ensure they properly classify their workers. 

“There is a growing trend in Australia to casualise the workforce,” he said.

“Employers do it so they don’t have to pay annual leave and also sick days and other entitlements.

“However, courts are ruling more often, that employees who work a regular and systematic roster are not casuals, they are in fact, permanent employees.” 

Mr Heffernan therefore advises casual workers who work a regular pattern of shifts to seek expert advice to see if they are owed unpaid entitlements.


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