High Court overturns Workpac v Rossato following recent Fair Work Act changes
The High Court has overturned the Full Federal Court decision in Workpac v Rossato which was handed down in 2020 and had caused significant controversy around the engagement of casual workers.
Workpac v Rossato - Focus on the conduct of the parties
The Full Federal Court decision of Workpac v Rossato [2020] FCAFC 84 previously held that Mr Rossato was not a casual employee because he performed regular and predictable work under a series of assignments and therefore had an expectation of continuing employment on a regular and systematic basis. He was entitled to claim back unpaid permanent entitlements as result. Here, the Court had classified the casual employment based on the conduct of the parties and not the terms of the written employment contract.
The Court had not allowed WorkPac to “set off” those claimed entitlements by the 25% casual loading that Mr Rossato had been previously paid as a casual – which had a “double dipping” effect.
Now? – Written employment offer decisive in determining casual status
The High Court has now overturned that decision of the Full Federal Court and has instead confirmed that a casual is one who has “no firm advance commitment” from their employer as to the duration of their employment, or the days/hours they are to work – and who provides no commitment in return.
To determine whether there has been a “firm advance commitment” you must consider the terms of the written employment contract between the parties and not any subsequent conduct of the parties. A mere expectation of continuing employment on a regular and systematic basis is not sufficient.
Importantly, the High Court has held that putting a worker on a regular roster does not necessarily establish a “firm advance commitment”.
What about the recent changes to the FW Act?
The decision of the High Court is consistent with the new definition of casual employee within s 15A of the Fair Work Act (FW Act) which came into effect from 27 March.
The High Court decision is still very important as it clarifies the common law meaning of casual employee.
Although not considered by the High Court, the FW Act has also introduced a double dipping provision which requires the Court to set-off any casual loading paid to workers who pursue claims for permanent entitlements claiming they are permanent employees.
Where to from here?
Following the recent changes to the FW Act, employers have already been reviewing their casual employment contracts to comply with the new definition of a “casual” employee.
All employers should take steps to:
Review their casual employment contracts to ensure they align with the clarified meaning of casual employment and the requirements of the FW Act; and
Provide all casual employees with a copy of the new Casual Fair Work Information Statement.
Employers should also be reviewing all existing casual arrangements to determine eligibility for offering conversion to permanent employment under either the FW Act or any applicable modern award. Parliament has granted a grace period until 27 September 2021 for employers to comply with the new changes to the FW Act.
Contact one of our McKays employment lawyers to review your employment contracts and ensure your business is meeting its obligations in relation to your casual workforce.