AHA|SA MEMBER INFORMATION
High Court Overturns Casual Employment Ruling OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER In a significant matter concerning the nature of casual employment the High Court has unanimously allowed an appeal from a judgement of the Full Court of the Federal Court of Australia, resulting in the Federal Court’s ruling on casual employment in the Rossato Decision being overturned. A summary of the background of the case, the Appeal and the High Court’s decision is outlined below. BACKGROUND Between 2014 and 2018, Mr Rossato was engaged by WorkPac (being a labour hire company) to work for Glencore in one of its Queensland coalmines. Over the course of 4 years, Mr Rossato was issued with 6 separate and consecutive employment contracts. During each period of engagement, Mr Rossato was engaged as a casual “Field Team Member” (FTM). In 2018, following his retirement and relying on the decision in WorkPac v Skene [2018] FCAFC 131 (Skene), Mr Rossato wrote to WorkPac claiming he was entitled to payment of his leave entitlements in addition to the entitlements contained in the WorkPac Pty Ltd (Coal) Industry Enterprise Agreement 2012 (the Agreement). 32 | Hotel SA | W W W . A H A S A . A S N . A U
WorkPac subsequently commenced proceedings in the Federal Court seeking declarations confirming Mr Rossato: 1. was a casual employee rather than a permanent one; and 2. if Mr Rossato is found to have leave entitlements owed to him, could WorkPac off-set these entitlements against payments made to Mr Rossato in the past. FULL FEDERAL COURT DECISION In the Full Federal Court’s decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato Decision) Justices Bromberg, White and Wheelahan JJ, considered, in detail, the legislative framework regarding casual employment in Australia and re-affirmed the submission in Skene: “the indicia of casual employment referred to in the authorities [being] irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance of commitment”. Further, the Court submitted that that the description parties use to categorise their relationships is not determinative nor conclusive of the entirety of the Back to Contents
