High Court Overturns Casual Ruling
On 4 August 2021 the High Court of Australia unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia in which a worker was found not to be a casual and therefore entitled to paid leave entitlements.
The worker, Mr Rossato, an experienced production worker in the open-cut black coal mining industry, was employed by labour-hire provider WorkPac between 2014 and 2018 and worked on Glencore mines at Newlands and Collinsville. At all times, WorkPac treated Mr Rossato as a casual employee, and he did not receive paid leave or public holiday entitlements. He was employed under a series of six contracts, or “assignments.”
In August 2018, the Full Court of the Federal Court of Australia handed down a judgment involving WorkPac and another worker, Mr Skene, where the Full Court held that Mr Skene was not a casual employee under the Fair Work Act or the enterprise agreement that applied to his employment. Following the judgment in Skene, Mr Rossato wrote to WorkPac claiming he had not worked for it as a casual employee and that he was therefore entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken during his employment. As we discussed here, the Full Court subsequently agreed with Mr Rossato and made declarations he was entitled to the payments he had claimed.
WorkPac appealed to the High Court, arguing that the Full Court ought to have held that Mr Rossato was a casual employee for the purposes of the Fair Work Act and the enterprise agreement that covered the work.
As the case was not affected by changes made to the Fair Work Act earlier this year (which included the insertion of a definition of “casual employee”), the High Court considered the provisions in the Act at section 65 which deal with requests for changes in working arrangements and refer to a “long term casual employee” and “a reasonable expectation of continuing employment…on a regular and systematic basis”. The High Court held the Act contemplates an employee may be a casual employee even though the employee is a “long term casual employee”. Further, the Act does not regard the existence of “a reasonable expectation of continuing employment … on a regular and systematic basis” to be inconsistent with the nature of casual employment:
Rather, such an expectation is entirely consistent with an employee’s status as a casual. It can therefore be seen that, so far as the Act is concerned, such an expectation, however reasonable, remains an expectation only and falls short of a “firm … commitment”. A reasonable expectation of continuing employment is simply not the kind of firm advance commitment to continuing employment the absence of which typifies casual employment.
While Mr Rossato was provided with rosters which fixed his working hours up to a year in advance, the High Court found that what was missing was a firm advance commitment to continuing work beyond the end of a particular assignment. The High Court held that while Mr Rossato might have had a reasonable expectation of continuing employment on a regular and systematic basis, that was not a firm advance commitment to continuing employment beyond the particular assignment.
The High Court unanimously allowed the appeal holding that a casual employee is one who has no firm advance commitment from the employer as to the duration of the employment or the days or hours the employee will work, and provides no reciprocal commitment to the employer.