On 12 October 2017, the Federal Court delivered a judgment in a case brought by a freight handler, Mr Tomvald seeking to enforce a right to convert his casual employment to permanent full-time employment with his employer Toll Transport* (Toll). He relied on a casual conversion clause in Toll’s enterprise agreement (EA). The EA also incorporated the casual conversion clause in the relevant Modern Award, the Road Transport and Distribution Award 2010 (Award), but the EA applied in the event of any inconsistency.
The evidence was that as a casual employee, Mr Tomvald worked Monday to Friday commencing normally at 4.00am and generally did an 8 hour shift.
In his application, Mr Tomvald relied on clause 21(e) of the EA which provided:
... where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged, in accordance with the Award.
The term like for like basis was not defined. Following submissions, the Court determined that it should be interpreted “with a practical bent of mind.”
The court found that the ordinary hours worked by Mr Tomvald was regularly a little less than 8 ordinary hours per shift and about 34 hours per week.
“If reference is made to the actual number of hours worked, being ordinary hours together with overtime, he worked a little more than 8 hours per shift and a little more than 38 hours per week. For the purpose of these calculations, the average weekly hours worked are calculated on the basis of Mr Tomvald working 46 weeks per year, which is considered appropriate given that a casual worker is not entitled to sick leave or holiday leave. A permanent employee who takes sick leave and holiday leave would also work for 46 weeks per year. The comparison, it is accepted, may not be mathematically precise. But mathematical precision is not required. It is a tool which merely assists in reaching an informed decision when comparing competing positions. Nor should it be expected, in an industrial context, that a detailed auditing of actual hours worked be undertaken before reliance can be placed upon cl 21(e).”
The court concluded that to meet the requirements of clause 21(e) to convert his employment on a “like for like” basis, Mr Tomvald was entitled to a permanent full-time position.
There were other contraventions found against Toll, being a failure to provide employee records on request; failure to consult in respect to the capping of hours and the changing of start times; the misrepresentation of a representative’s ability to represent Mr Tomvald. In total penalties amounted to $42500 which were paid to Mr Tomvald.
The key lessons for employers from this case are:
check any applicable award or enterprise agreement provisions that govern employees’ rights to make a request to convert from casual to permanent employment and ensure you understand and comply with those provisions; and
carefully consider the request and any grounds for refusal, as a failure to comply with any award or EA provisions may result in penalties.