The Lessons From Workpac

On 20 May 2020 the Full Court of the Federal Court gave judgment in WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

In contemporary times few decisions on employment conditions have excited as much media attention and commentary as WorkPac did.

The reaction to it was predictable. Employer groups criticised it as undermining the basis for casual employment and the ACTU welcomed it for the same reason.

The tension between treating employees as casuals to allow for flexibility and mobility and essentially to avoid the payment of entitlements, such as annual leave, personal leave and compassionate leave – available to permanent employees – was laid bare.

Now That the Dust Has Settled Here Is What I Think Should Be Learnt From Workpac:

1. An employment contract is more than just the document that embodies or sets it out. An analysis has to be made of what the employer and employees do under the aegis of the contract so that an assessment can be made between what the employment contract is and what the employment contract means.
2. A firm advance commitment of work made by an employer to an employee probably results in the employee being characterised under the Fair Work Act 2009 as “other than a casual employee”. The Full Court of the Federal Court in WorkPac v Skene [2018] FCAFC 131 had previously decided that casual employees have no firm advance commitment from their employer to continuing and indefinite work according to an agreed pattern of work.
3. “Casual employee” has gained a general legal meaning that is not rigid but responds to the various circumstances in which it might be applicable. Put another way, in one context employment might truly be casual but in another “other than casual”.
4. The indicia of casual employment are irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.
5. If casual employment involves the absence of a firm advance commitment of work by an employer it also involves an absence of reciprocal commitment by an employee to the employer.
6. Payment of a casual loading to an employee is not an answer if the employee is “other than a casual” and has an entitlement to paid annual leave, personal leave or compassionate leave, which the employer has not paid.
7. In the wake of WorkPac it is important for employers to ensure that casual employees are in truth “casual”.

If the indicia of casual employment are not present insofar as work patterns are regular, certain, continuous, constant and predictable employers may well face the type of claim that Mr Rossato made when his employment with WorkPac ended.

For further advice on the implications of WorkPac and other aspects of workplace relations law please contact our experienced workplace relations team on (03) 9614 7111.