The High Court’s take on casual employment

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The difference between casual employment and permanent employment is one all business owners should be aware of. The following post outlines one case examining the difference between permanent and casual employment.

WorkPac Pty Ltd v Rossato & Ors

In the first Rossato decision, the Federal Court held that to be deemed a casual employee, an employee must have “no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work”. 

The Rossato decision affirmed the decision of the Full Federal Court in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 which followed the reasoning of WorkPac Pty Ltd v Skene [2018] FCAFC 13. 

In this blog, Partner Sarina Eggers-Stable and Paralegal Thomas Mirolo-Lynam discuss the Rossato decision. 

Key points to remember 

  • Contracts are king – courts in Australia must look to the terms of the written contract to determine the nature of an employment relationship.
  • Casual employees will be deemed casual where there is no “firm advance commitment” as to the duration of the employee’s employment.
  • Employers should be specifically aware of new amendments introduced to the Fair Work Act 2009 (Cth) in 2021.

Background

Mr Rossato worked at coal mines in Queensland for WorkPac under six distinct employment contracts between July 2014 and April 2018. WorkPac engaged Mr Rossato as a casual employee and paid him casual loading. WorkPac did not afford Mr Rossato any paid leave entitlements. Mr Rossato was further classified as a casual employee under WorkPac’s enterprise agreement. 

What is a “casual” employee?

The High Court (the Court) appeal of Rossato was unanimously decided in WorkPac’s favour. The Court found that Mr Rossato was, in fact, a casual employee of WorkPac and provided their reasoning clarifying this point. 

It was found that based on the fact Mr Rossato:

  • worked with WorkPac on an “assignment by assignment basis”;
  • had his rosters fall short of being a contractual promise by WorkPac and was not required to work all shifts listed; 
  • was not obliged to complete further assignments from WorkPac;
  • able to accept or reject any offer of assignment made to his; and
  • could not establish a relationship of ongoing commitment between the parties.   

At [57] the Court stated:

“a court can determine the character of a legal relationship between parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a “firm advance commitment” must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement.”

The approach taken by the Federal Court was deemed to violate principles of freedom of contract and said to make it difficult for employers and casual employees to ascertain their rights and liabilities before they accrued.

The importance of Rossato

Realistically, the Rossato decision only strictly effects the nature of the employment relationship between Mr Rossato and WorkPac Pty Ltd. For the rest of us, the legislative amendments that came into effect earlier in 2021 should be used to discern the nature of the working relationship between people. 

Nevertheless, the observations of the Court provide some clarity on aspects pertinent to casual employment and are important to note. Importantly, though, the new statutory definition of a “casual employee” found in section 15A of the Fair Work Act 2009 (Cth) should be referred to for assistance in clarifying any questions that may surround the nature of an employee’s employment.  

Legal advice​

If you or your business are need assistance with employment, workplace, or industrial relations law, you should contact the Legal Kitz employment team today. Legal Kitz employment specialists can assist with ensuring that all of your legal obligations are met right from recruitment through trough termination to assist reduce disputes.  

Click here to book a FREE consultation with one of our highly experienced solicitors today or contact us at info@legalkitz.com.au or by calling 1300 988 954. 

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