High Court puts the brakes on
casuals double dipping
BY JENNY EDINGER SPECI AL COUNSEL & MORGAN BARNSBY L AW GRADUATE
From time to time, casual employees make claims for leave payments from employers, arguing that they are not a “true” casual but are in fact a permanent employee.
As a consequence, the Federal Court held that Mr Rossato was entitled to be paid annual leave as a permanent employee but also to keep the casual loadings paid to him.
Workpac v Rossato
However, the High Court on 4 August 2021, overturned the earlier Full Court decision.
This case concerned the employment of Mr Rossato by Workpac Pty Ltd (Workpac), a labour hire agency. Over several years, Mr Rossato was employed by Workpac as a ‘Casual Field Team Member’ to provide services to Glencore Australia Pty Ltd at several Queensland coal mines. At all relevant times, Workpac engaged and paid Mr Rossato as a casual employee and as such did not pay him any annual leave or other paid leave entitlements. When Mr Rossato retired, he then claimed that he was a permanent employee and sought payment for his leave entitlements. Workpac first sought a declaration from the Federal Court that Mr Rossato was not entitled to the claimed leave payments and that he was a casual employee. Workpac also claimed that if Mr Rossato’s employment had been mischaracterised, that the casual loadings paid to him should reduce the amount of any leave payable by a commensurate amount. The Federal Court held that Mr Rossato was a permanent employee and not a casual employee for various reasons, including that when the totality of his employment circumstances were considered, Mr Rossato had an expectation of continuing work according to an agreed pattern. Importantly, the Federal Court placed more emphasis on the regularity of Mr Rossato’s roster and less emphasis on his employment contract that stated he was employed on an “assignment by assignment” basis.
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EDITION 7 | 2021 Western Articulator
The High Court held that Mr Rossato was a casual employee because: • his contract of employment clearly stated he was a casual employee engaged on an assignment-byassignment basis; • his rosters did not establish a commitment to ongoing employment after each assignment finished; and • Mr Rossato worked as a casual employee on an assignment-by-assignment basis, consistent with his employment contract.
Implications for employers and their casual employees Firm advance commitment The High Court accepted the prevailing understanding of lawyers and employers alike, that casual employment is characterised by no firm advance commitment as to the duration of the employee’s employment or the days and hours the employee is expected to work. Importantly, the High Court held that Mr Rossato’s regular and systematic roster was not inconsistent with the definition of casual employment because his employment was time limited to the length of each assignment. However, employers should still be cautious about implementing regular work rosters for their casual employees because it is still a factor which may be considered by a court should a casual employee claim leave payments.
