20 Aug WHAT IS CASUAL EMPLOYMENT? – THE PENDULUM HAS SWUNG AGAIN
On 4 August 2021, the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the nature of casual employment.
THE FACTS
Mr Rossato was employed as a production worker by the labour-hire company WorkPac under a series of six contracts, or “assignments”, to perform work for one of WorkPac’s clients. At all relevant times, WorkPac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave and public holiday entitlements owed by employers to non-casual employees pursuant to the Fair Work Act 2009 (Cth) (“the Act”) and the enterprise agreement which governed his employment.
THE LITIGATION
On 16 August 2018, a judgment was delivered in the Federal Court. In
that decision, it was found that Mr Skene, who had been employed by WorkPac in circumstances
similar to those of Mr Rossato, was not a casual employee. In reliance on that decision, Mr Rossato
claimed that he was likewise not a casual employee, and was therefore entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken during his employment.
The Full Federal Court also concluded that Mr Rossato was not a casual employee for the purposes of the Act and the enterprise agreement, and declared that Mr Rossato was entitled to the payments he claimed. WorkPac appealed to the High Court.
The High Court decided on 4 August 2021 that a “casual employee” is an employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work, and provides no reciprocal commitment to the employer. Where parties commit the terms of their employment relationship to a written contract and thereafter adhere to those terms, the requisite firm advance commitment must be found in the binding contractual obligations of the parties; a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Act.
Mr Rossato’s employment was expressly on an “assignment- by-assignment basis”. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment WorkPac was under no obligation to offer further assignments. That Mr Rossato was to work in accordance with an established shift structure fixed long in advance by rosters did not establish a commitment to an ongoing employment relationship beyond the completion of each assignment. In carrying out each assignment, Mr Rossato worked as a casual employee for the purposes of the Act and the enterprise agreement. On that footing, it was unnecessary to consider WorkPac’s set off and restitution claims.
The Commercial Team at Belperio Clark will be happy to discuss these issues when assisting our clients with their businesses. Please contact us on 8212 1322
Prepared by Eugene Reinboth
