May 28, 2020

Could casual aged care staff receive paid leave after groundbreaking court case?

The recent finding by the Federal Court that a casual mine worker was entitled to receive paid leave could have significant implications for the aged care sector, where 10 per cent of the residential aged care workforce is estimated to be employed on a casual basis.

Across all of aged care, including home care, the figure is as high as 25 per cent.

In contrast with their permanent part-time or full-time colleagues, casual workers are not entitled to annual leave, personal leave, notice of termination or redundancy pay. To compensate, they are entitled to receive 25 per cent pay loading.

But the recent finding by the Federal Court could change that.

The case

The case in question involves former mine worker, Robert Rossato, who was seeking compensation for unpaid leave and public holiday pay from Workpac, an organisation that supplies employees to mining companies such as Rio Tinto and BHP.

Mr Rossato’s work was stable, regular and predictable, and was in line with regular full-time work. The court found that he was not a casual employee, and so was entitled to annual leave and to be compensated for not receiving it during the term of his employment.

The finding had been highly anticipated, and for employees with ‘permanent casual’ staff, there are concerns the decision could expose them to claims of compensation.

What is casual work?

Casual work is generally thought of as irregular or temporary employment, and that description is correct for many workers employed in this capacity.

But a 2017 Fair Work Commission report quoted research showing that 60 per cent of casual employees had regular rosters and had been employed for at least six months; 28 per cent had been employed for longer than three years. These employees are essentially ‘permanent casuals’.

One of the reasons for the confusion about casual work is the way it is defined in awards and enterprise agreements, Andew Stewart, Professor of Law at the University of Adelaide, wrote in a recent article in The Conversation

“Awards and enterprise agreements typically define a casual as anyone engaged and paid as such,” he wrote.

“This has encouraged the belief that, so long as a worker is labelled a casual by their employer, that’s what they are – no matter how stable and predictable their job,” Mr Stewart writes.

For the purposes of Mr Rossato’s case, the Federal Court defined casual work as the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”. 

As such, the court found Mr Rossato should have been treated as a permanent employee.

Aged care workers take 25% loading because pay rates so low

The Health Services Union has been looking at the case, and is still determining the best way forward for aged care workers.

The HSU’s National President, Gerard Hayes told HelloCare that many aged care workers have no choice but to accept casual work because their rates of pay are so low.

“Casual employment for many isn’t a choice,” he told HelloCare. “It’s a necessity because of the extremely poor pay..”

Aged care sector facing huge financial challenges

Mr Hayes said some employers have already extended paid leave to their casual workforce during the COVID-19 crisis.

“Access to paid leave means a worker can pay the bills and keep themselves and residents safe. It’s right thing to do,” he said.

But the “best approach” for the union’s members and the aged care sector in the wake of the Federal Court’s decision are still unclear, he said.

“We know that the aged care sector is facing a huge financial challenge and we want to work with employers directly to ensure that our members – their workers – are valued and remunerated properly for the incredible work they do. 

“That includes acknowledging their dedicated casual workforce,” he said.

Aged care dependent on casual workers

Leading Age Services Australia CEO, Sean Rooney, told HelloCare the recent finding is a repeat of the similar 2018 Skene Decision, but media attention could generate change.

“The publicity may bring further attention to the nature of casual employment, and could lead current or former casual employees to consider their options,” he said.

Having some casual employees is “an important part of flexibility”, which is essential for aged care providers, Mr Rooney said.

Aged & Community Services Australia, CEO, Pat Sparrow, agreed that having some casual staff was important for aged care providers.

“Aged care does rely on true casual workers for things like backfilling leave and the temporary increase in workloads. This isn’t likely to change,” she said.

She said the court’s finding was not really new, and her organisation isn’t expecting “major changes”.

Influx of claims would stretch aged care system

The court’s finding might cause aged care providers to think twice before employing casual staff, Mr Rooney said.

The decision is “likely” to lead aged care providers to consider their employment of casual workers, “while ensuring they are not exposing themselves to financial risk”, he said.

If aged care providers receive similar claims, the system will feel the pinch, Mr Rooney said.

“If there were many claims of this nature in the aged care sector, this would further stretch a system under great financial pressure.”

Casual staff can request permanent employment after 12 months

Mr Rooney said employees have an obligation to consider permanent employment for casuals who desire it.

“Casual employees under modern awards who have been engaged on a regular basis for more than 12 months can request to be engaged on a permanent basis,” he said. “Employers, in turn, have a responsibility under those provisions to consider permanent employment. 

“This isn’t the answer in all situations however it can be a good alternative.”

Aged care workers’ pay requires overhaul

Mr Hayes said the issue of pay and entitlements for the aged care workforce is particularly pertinent during the pandemic.

“Aged care workers are on the frontline of this pandemic,” he said. “They put themselves and their families at risk every day for as little as $22.00 an hour. 

“The pandemic has proved they are skilled, essential workers who deserve to be valued with proper pay and conditions. It is time for an overhaul of wages and conditions in aged care to recognise this.”

Mr Stewart wrote the most likely response to the Federal Court’s recent finding would be a change in the way casual work is defined in the Fair Work Act. “This is an issue long overdue for resolution,” he said. 

Image: CasarsaGuru, iStock.

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  1. It seems we have been over looked as front line workers. Seems only hospital staff are the only ones of late when media focuses on everyone but aged care staff. Funny how all of management who are not in close contact with residents including CMs are vaccinated with leftover virals and we ains are not important enough to be thought of even when most of the deaths in this country were in nursing homes. Understandable if you work with covid positive patients. Even they have been put at risk with no vaccination. Unbelievable!


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