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The High Court’s decision on 4 August 2021 in the case of WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23 regarding the nature of casual employment has set out new guidelines for employers to consider when drafting their employment contacts. The decision is consistent with the recent amendments to the definition of a casual employee under section 15A of the Fair Work Act 2009 (Cth).

WorkPac Pty Ltd v Rossato Background

Mr Rossato was employed by WorkPac Pty Ltd (WorkPac), a labour-hire company, from 28 July 2014 until 9 April 2018. During Rossato’s employment, he had six separate, consecutive casual contracts to perform work for WorkPac’s clients. Mr Rossato worked on a fixed weekly roster which was provided up to seven months in advance.

Mr Rossato’s employment contract was on an assignment-by-assignment basis in which he was entitled to reject work and there was no obligation on WorkPac to continue employment at completion of each assignment.

Rossato was categorised as a casual employee and was receiving casual loading in lieu. Under Rossato’s WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012, he was classified as a ‘Casual FTM’. Rossato claimed his regular and ongoing employment meant that he was a permanent employee. He claimed he was owed outstanding unpaid entitlements including annual leave, carer’s leave, compassionate leave and public holiday pay. However, the High Court – on appeal from the Federal Court – ruled that Rossato was a casual employee in accordance with the Fair Work Act 2009 (Cth).

WorkPac Pty Ltd v Rossato Decision

The High Court held that:

  1. A causal employee has no firm advance commitment from their employer concerning the duration of the employee’s employment or when the employee works. This is determined at the time the employment contract is entered into and the contract must be wholly in writing.
  2. The employee provides no reciprocal commitment to the employer
  3. Payment of casual loading in lieu of entitlements is a strong indicator of casual employment
  4. A fixed roster, set well in advance, will not provide a commitment to ongoing work where such a roster is still consistent with nature of the engagement.

What can I do?

We recommend employers review their casual employment contracts and specify the below factors, including:

  • Whether the employer can elect to offer work;
  • Whether the employee has the ability to accept or decline work;
  • Whether the employee will work only as required according to the employer’s needs;
  • Whether their employment is described as casual employment; and
  • Whether the employee is entitled to receive casual loading or a specific rate of pay

Next Steps

Does your employment contract sufficiently address the amended definition of casual employment? Contact the employment law team at Antunes Lawyers on (02) 9964 0499 to discuss your options today.

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