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Casual workers come in from the cold

UNFAIR dismissal suits are now available to many casual employees following a decision by the Federal Court, which went against intervention and submissions from the Federal Government.

Omah Hamzy, a 17-year old casual Sydney-based staff member at fast food chain KFC, successfully expanded the rights of all casual workers two weeks ago when the full Federal Court in Sydney found that regulations exempting casual employees from bringing unfair dismissal actions made under the Work Place Relations Act 1996 were invalid.

The Australian Retailers’ Association and the Shop, Distributive and Allied Employees’ Association were battling the matter out in the Federal Court, when the

Minster for Employment, Workplace Relations and Small Business, entered the fray.

The minister relied heavily on expert evidence to attempt to demonstrate that allowing unfair dismissal laws to apply to

casual workers would have an adverse effect on job creation. Unfortunately for the Government, the court found that the opinions of Melbourne University Professor Mark Woden were lacking in

supportive empirical evidence.

The Court expressed disappointment that there was no statistical or anecdotal evidence to support Professor Woden’s belief about the importance of flexibility to small business. Commenting on the judgement, Deacons senior associate Alistair Salmon said most employers would be horrified to read some of the court’s findings.

The joint judgement reads: “Employers are used to bearing many obligations in relation to employees (wage and superannuation payments, leave entitlements, the provision of appropriate working places, safe systems of work, even payroll tax). Whether the possibility of encountering an unlawful dismissal claim makes any practical difference is entirely a matter of speculation.”

Professor Woden’s views were disputed by Dr Richard Hall from the University of Sydney: “…. that argument would be more valid if it were not for the widespread practice of using probationary employment terms”.

Freehills Employee Relations partner Erica Hartley believes the main implications for employers are as follows.

p Any class of employee must work for at least three months to be able to institute an unfair dismissal action.

p Casual employees with more than three months’ service can now pursue unfair dismissal claims at the Federal level.

p The decision is already affecting matters presently before the Industrial Relations Commission, where the employer is relying upon the Regulations 30B(1)(d) and 30B(3), which were previously thought to exclude casuals. This exclusion will no longer apply.

The decision’s timing has been mitigated by the effect of the new Regulations to the Work Place Relations Act, which also requires that all employees must work for three months before being eligible for an unfair dismissal claim, she said.

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