Federal Court Reinforces Need for Express Contractual Terms
April 19, 2023
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Recently, the Full Court of the Federal Court of Australia issued its decision in the matter of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato), a decision which sent shockwaves across businesses in Australia in relation to the engagement of casual workers.
In Rossato, the Full Court made several key determinations:
- Firstly, that Mr Rossato was not a casual employee because both WorkPac and Rossato “had agreed on employment of indefinite duration which was stable, regular and predictable”;
- Secondly, Mr Rosatto was, as a consequence of being a full-time employee, entitled to benefits under the National Employment Standards (under the Fair Work Act 2009), including paid annual leave, paid personal leave, paid compassionate leave and payment for public holidays (the FWA Entitlements)
- Third, that WorkPac was not entitled to bring into account the payments it had made to Mr Rossato on the basis that he was a casual employee because “the purposes of those payments did not have a close correlation to the FWA Entitlements Rossato was seeking”.
The question of whether an employee is, according to law, a casual employee or a permanent employee called by a different label has plagued employers for decades. In many senses, the Full Court decision does not raise any new principles on this particular area of law.
Ultimately, the Courts will always look to the nature of the relationship as the deciding factor. Thus if you engage a person and call them a casual, but employ them indefinitely and on a regular, systematic and predictable manner, it is likely that a Court will determine that the employee is permanent and not a casual. In such circumstances the employee will then be entitled to the benefits associated with being a permanent employee.
In our view, the decision in Rossato reinforces the importance of considering the employer’s labour needs prior to the engagement of any additional staff, and also in ensuring that the engagement is reflected in a written contract of employment, which clearly and precisely sets out (amongst other things) the nature of the engagement, the expectations of the employer and the remuneration to be paid.
It is also important to ensure that where a casual loading is paid to a casual employee, the amount of the loading is stated in the contract and reference is made as to which entitlements the loading is being paid in lieu of.
Where additional staff are required but there is uncertainty as to the hours of work required or the duration of the engagement, employers should also consider whether it would be appropriate to engage the employee for a set period of time, for a particular task, or for a particular season, or a combination of these.
Finally, if you have engaged a “casual” employee and that person has had regular and systematic employment for a lengthy duration, and has an expectation that the employment will continue indefinitely, you should seriously consider whether that engagement should be converted to permanent employment.
If you need assistance with your employment contracts, or seek further information in relation to your legal rights and responsibilities, or assistance with COVID-19 related matters, please contact us on (08) 9321 5451 or by email at brian@bailiwicklegal.com.au.
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on this information.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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