IN A SIGNIFICANT development relating to casual employees, a Justice of the Supreme Court of Victoria recently overturned a decision of a magistrate that granted long service leave to a long-serving casual employee
IN A SIGNIFICANT development relating to casual employees, the Supreme Court of Victoria recently overturned a decision of a magistrate that granted long service leave to a long-serving casual employee.
Justice Dodds-Streeton ruled that a casual ‘events person’ who had worked for the Melbourne Cricket Club (MCC) at MCG events for a period in excess of 15 years, was not entitled to long service leave under the Victorian Long Service Leave Act 1992.
The casual employee, Mr Clohesy, regularly attended the MCG to perform ‘events staff’ duties at football matches, concerts and cricket matches.
In the original case, the Magistrate refused to follow a previous Supreme Court decision on the meaning of “continuous employment”, and granted Mr Clohesy’s claim. The MCC appealed the Magistrate’s decision.
The previous decision had found that the term “continuous employment”required continuous and mutual contractual obligations on the part of the employer to offer employment on the one hand, and on the employee to provide that service on the other.
On appeal, Justice Dodds-Streeton found that this finding as to the meaning of “continuous employment” was the ratio decidendi of the decision, and as such, in refusing to follow it, the Magistrate erred.As a result of the decision, true casual employees in Victoria that rely on the Long Service Leave Act for long service leave are unlikely to have any entitlement, according to Matthew Follett, a solicitor with Freehills.However, he said the facts of each case must be carefully considered, especially where workers who are labelled as ‘casuals’ are actually working on a regular and systematic basis.While the decision may be seen as a win for them over the issue, the victory is likely to be short lived, Follett added.
The Victorian Government has released a discussion paper on long service leave, which proposes a series of reforms to the Long Service Leave Act, including the entitlement of some casual employees to leave.
The discussion paper, Long Service Leave for today’s workplace: Making it work for you, seeks to give effect to the Victorian Labor Government’s 2002 election policy which called for a national approach to long service leave.
