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Wrongly Classified Casual Worker Wins 15 Years Of Annual Leave

Wrongly classified casual worker wins 15 years of annual leave

A South Australian quarry worker has been awarded 15 years worth of annual leave, after a court found he was wrongly classified as a casual worker when he was, in reality, a permanent employee.

The case could have implications for other casual workers who have also worked a regular pattern of shifts over a long period of time.

Worker thought he was accruing annual leave

Michael Apostolides worked as a crushing plant operator at Mantina Earthmovers and Constructions at Kapunda in South Australia between May 2000 and August 2015, when he was sacked.

During that time, the company classified him as a “casual” employee, which meant he wasn’t paid annual leave entitlements.

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

In his affidavit to the The Federal Circuit Court, Mr Apostolides said that in his 15 years working at the quarry, he had not been paid for public holidays, sick days, and he did not take annual leave, but believed he was accruing it.

He said it was “like having money in the bank.”

Under cross examination, he said that he did not take annual leave because he liked what he was doing, and considered himself a “fairly important cog in the wheel” at the quarry.

Casual loading paid but below award rate

The court heard that there was no written contract setting out the basis of Mr Apostolides’ employment, but he was paid a casual loading of around 20 per cent, although this was below the award rate of 25 per cent.

According to the Australian Workplace Agreement, full time employment means that you are employed on a permanent basis and are required to work an average of 38 hours a week, plus reasonable additional hours.

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 found Mr Apostolides was wrongly recorded as a “casual” in the quarry’s internal pay records, and although he was paid more than normal, there was no evidence that he was paid a proper “casual loading”.

Judge Young concluded that he was employed on a full-time basis from May 2000 to August 2015, and ordered that he be paid for the annual leave that he accrued in that time.

Employers should make sure paperwork accurate and up to date

Miles Heffernan, Litigation Director at Industrial Relations Claims, said employers should always ensure their employees’ paperwork is accurate and up to date.

“The employer has a responsibility to keep accurate time and wage records, including when they pay a casual loading,” he said.

“This is a rare case, because normally, the question of an employee being a casual is worked out when someone signs up for work, and it should subsequently appear on their time sheets.

“The Court has decided that Mr Apostolides is a full time worker, so he deserves his entitlements,” Mr Heffernan said.

Other casual workers who have been mis-classified might also be eligible to claim accrued annual leave entitlements.

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