High Court Decides on Workpac v Rossato
April 19, 2023
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On 4 August 2021, the High Court unanimously overturned the Full Court of the Federal Court of Australia’s decision in Workpac Pty Ltd v Rossato [2020] FCAFC 84 and the precedent set in the Full Federal Court judgment of Skene v WorkPac Pty Ltd (2018) 264 FCR 536, being cases which dealt with the nature of casual employment.
In WorkPac v Rossato & Ors
[2021] HCA 23 (‘WorkPac v Rossato’), the High Court found that Mr Rossato was a casual employee for the purposes of WorkPac’s Enterprise Agreement and the Fair Work Act 2009
(Cth), thus excluding Mr Rossato from entitlements, such as paid annual leave, that apply to permanent employees.
To read more about the Federal Court decision, you can view our article here.
Background
Mr Rossato was employed by WorkPac, a labour hire company, on a series of separate casual employment contracts between 2014 and 2018 and was recognised (and paid) as a casual employee under WorkPac’s 2012 Mining (Coal) Industry Enterprise Agreement.
After his last engagement with WorkPac had ended, Mr Rossato claimed he was a permanent employee rather than a casual and was therefore entitled to receive annual leave and personal leave entitlements. In particular, Mr Rossato claimed:
- He had regular and ongoing employment, due to receiving a set roster a year in advance in addition to regular shift patterns;
- His shift hours were standard and rarely deviated from his roster; and
- WorkPac expected Mr Rossato would attend every shift.
Overall, the core issues before the High Court were whether Mr Rossato had a ‘firm advanced commitment’ that was an enforceable term of his contract, and whether the express terms of Mr Rossato’s written contracts of employment had primacy.
High Court Decision
The majority of the High Court rejected the notion that the employment relationship between the parties was to be established by analysing ‘the real substance, practical reality and true nature of that relationship’. In considering whether Mr Rossato had any ‘firm advance commitment as to the duration of his employment’ the Court identified that the appropriate method to assess this question was to look to the employee’s several written employment contracts.
In particular, the Court noted the express terms of Mr Rossato’s contracts, including:
- Mr Rossato was engaged on several separate contracts for specified periods of time;
- Mr Rossato could accept or reject any offer of work;
- the contract could be terminated on one hour’s notice;
- Mr Rossato did receive a casual loading; and
- the specification of daily working hours could be varied.
Additionally, the High Court gave limited weight to two other factors which the Full Court of the Federal Court had deemed relevant:
- WorkPac’s ability to terminate or vary Mr Rossato’s shifts and roster on one hour’s notice; and
- Mr Rossato’s work obligations being consistent and organised well in advance in accordance with WorkPac’s rosters.
The Court ultimately concluded that the express contractual terms agreed between Mr Rossato and WorkPac did not evidence a ‘firm advance commitment’ which Mr Rossato was able to enforce. Whilst the Court said that Mr Rossato may have had a reasonable expectation of continuing employment, this did not amount to an advance firm commitment to ongoing employment and was not an enforceable term of his contracts.
Key Takeaways
The High Court’s decision reinforces the need for employers to have carefully constructed and drafted employment contracts. The Court gave primacy to the express terms of Mr Rossato’s written contracts and dispelled notions of “expectations” as enforceable contractual terms.
We recommend that employers review their employment contracts and seek advice in relation to the engagement of casual employees in particular.
To view the full decision please click here.
If you need assistance with your employment contracts, or seek further information in relation to your legal rights and responsibilities, please contact us on (08) 9321 5451 or by email at phil@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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