The High Court of Australia has recently affirmed that casual workers are not entitled to receive payments for annual, sick, or other forms of leave, and that if a worker is receiving these benefits and being promised ongoing employment, that worker may not legally be considered casually employed under the Fair work Act 2009 (Cth) (‘Fair Work Act’).
The decision in Workpac v Rossato
The High Court’s decision was made after allowing the appeal of Workpac in their case against casual mine worker Robert Rossato. The courts had investigated Mr Rossato’s alleged status as a ‘long-term employee’ for the labour- hire company and found that he was actually only employed in the capacity of a designated ‘casual-worker’.
Mr Rossato was employed by Workpac for four years. During the time, he received a total of six employment contracts which described his role as a ‘casual employee’. Mr Rossato claimed that by working on a fixed weekly roster – sometimes over several consecutive months – he was more than just a ‘casual-worker’ and that there was a discrepancy between his title and the actual nature of his work. At first instance in the Federal Court it was found that Mr Rossato was not a casual employee upon this basis. However, upon appeal, the High Court found that Mr Rossato was a casual employee under the Fair Work Act.
The Court made this decision on the basis that although Mr Rossato had been given rosters several months in advance, this did not constitute a ‘firm advance commitment’ of work, as the shifts could have been changed or taken away from him at any time. Additionally, the Court concluded that Mr Rossato was employed on an ‘assignment-by-assignment’ basis, as he was entitled to accept or reject any offer of assignment, and Workpac had no obligation to offer additional assignments.
Mr Rossato was not receiving any paid annual or sick leave and he was receiving casual loading. The Court held that these were “compelling indicators” of a casual employee.
Fair Work Act 2009
The Fair Work Act is an essential Commonwealth statutes that governs employment by setting out terms, conditions, rights and responsibilities in the relationship between employers and employees. It regulates the rights of both employers and employees to request flexible working arrangements, and also deals with things such as termination and the general protection of workers’ rights.
The Federal Court’s initial decision in Workpac v Rossato necessitated a change to the definition of a casual employee under s 15A of the Fair Work Act. The new definition states casual work involves an employment relationship in which ‘employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”.
How Etheringtons Solicitors can help
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