The Facts

Worker engaged by labour hire company to work in Queensland mine

A man was engaged by a labour hire company that supplied labourers for mining companies.

Between April 2010 and July 2010, the man worked as a "drive-in, drive-out" dump truck driver at a coal mine. He drove six hours from his home in south-east Queensland, worked for a number of days, then had a number of days off.

The labour hire company had different agreements for different employment types. It had the man sign a "Casual or Fixed-term Employment Agreement" to cover the relevant period. This agreement covered duration of employment, assignments with the company, leave entitlements for fixed-term employees and notice of termination periods.

Worker engaged for new fly-in, fly-out position

In July 2010, the man successfully applied for a job as a "fly-in, fly-out" employee at another Queensland coal mine through the same labour hire company. At this time he was given a "Notice of Offer" by the company specifying that he was assigned to the new mine and that the same general terms and conditions in his earlier employment agreement would apply.

When the man commenced work in July 2010 at the new mine, he attended an induction where he was told he would work 12.5 hours per shift under a roster arrangement of seven days on, seven days off, and would be paid weekly.

Worker receives roster for entire year of work

When he commenced the new role, the worker was given a copy of his roster covering the period until December 2010. In January 2011, the mining company gave him a new roster covering the period until December 2011.

After his employment came to an end in April 2012, the worker brought a claim in the Federal Circuit Court for unpaid annual leave entitlements. It was up to the court to decide whether he should in fact receive such a payment.

case a - The case for the employee

case b - The case for the labour hire company

  • My hours were regular, predictable and set 12 months in advance.
  • My employment was continuous.
  • I was paid a flat hourly fee without any casual loading.
  • My employment was facilitated by a fly-in, fly-out arrangement. Flights and accommodation were provided by my employer at no cost to me.
  • It is obvious that because of the fly-in, fly-out arrangement, I was unable to leave the mine during my seven day "on" period and was expected to be available on an ongoing basis during that period. It was not possible for me to elect not to work on a particular day that I was rostered on.
  • The court should find that I was a regular employee who was entitled to accrue annual leave and be paid this accrual at the termination of my employment. My employers should also be penalised for breaching the Fair Work Act.
  • The employee signed an agreement that clearly stated he was a "casual" employee.
  • The employee was paid by the hour.
  • His employment could be terminated upon only one hour's notice.
  • In the section of the Fair Work Act that deals with annual leave, the term "casual" should be interpreted in its common industrial meaning, ie the employee was a casual because his agreement designated him as such.
  • Accordingly, he was also a casual employee under the relevant section of the Fair Work Act.
  • The court should find that the employee was not entitled to annual leave because he was employed as a casual.

So, which case won?

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Emily Wittig

Employment law

Stacks Collins Thompson