Working same time, same place, day after day? You could well be a casual

by | Aug 12, 2021 | Workplace & Employment

After much anticipation, the High Court has decided in WorkPac Pty Ltd v Rossato [2021] HCA 23 (High Court’s Decision), that Mr Rossato was a casual employee and not entitled to the benefits of a permanent employment even though he had an expectation of regular and systematic work.

This was following the High Court of Australia granting labour hire company, WorkPac, special leave to appeal the Full Court decision of WorkPac Pty Ltd v Rossato [2020] FCAFC 84. You can read about this history of the case here:

Important findings from the High Court’s decision were:

  • Parties are to determine the employment relationship from the terms expressed in a contract, and not subsequent conduct.
  • Glencore’s rosters did not form “a contractual promise that Mr Rossato would be entitled or required to work all the shifts listed”.
  • Further, the fixing of rosters so far in advance did not indicate a firm advance commitment to ongoing work on the part of WorkPac after each assignment. This was because the Fair Work Act contemplates casual employees working regularly and systematically.
  • Ultimately, whilst the assignments gave Mr Rossato an expectation of regular and systematic work, they fell short of affording a firm advance commitment of continuing work in the absence of that specific promise after the end of each assignment.
  • The terms of the relationship stipulated that work was to be on an assignment-by-assignment basis, with each party having no obligation to offer, or accept future work. The Court determined that this characterisation meant the parties “deliberately avoided a firm advance commitment to ongoing work” after the completion of an assignment.
  • Mr Rossato’s remuneration reflected the absence of a commitment to ongoing work. In particular, WorkPac paid a loading to Mr Rossato in lieu of entitlements.
  • That the decision of Hollis v Vabu did not assist the Court in determining the matter, as the Court had no reason to doubt the terms of the contract between WorkPac and Mr Rossato.

For both employers and employees, the decision demonstrates the importance of the content of employment contracts in determining whether employees are casuals or not.

Having said this, the decision has been somewhat superseded by the recent amendments to the Fair Work Act, which now define what constitutes casual employment.

If you have any questions or queries in relation to the categorisation of your staff, and the possible legal and financial consequences thereof, please make sure you contact our office to enable you to mitigate against such risks on 03 9614 7111 or email melbourne@nevettford.com.au.