A full Federal Court has ruled against labour hire company, WorkPac, finding that a ‘casual’ black coal mining employee was not a casual employee and therefore entitled to be paid for leave taken during his employment. The decision follows a similar case (Skene) of 2018, also involving WorkPac, which caused significant concerns among employers.
The employee in the matter, Mr Rossato, was a production employee in the black coal mining industry. He was employed by WorkPac between July 2014 and 9 April 2018 under six consecutive contracts.
Following the decision in Skene, Mr Rossato wrote to WorkPac to assert that, contrary to WorkPac’s treatment of him, he had not been a casual employee. He claimed entitlements to paid annual leave, paid personal/carer’s leave and paid compassionate leave and public holiday entitlements under the Fair Work Act 2009 (the Act) and WorkPac’s enterprise agreement that should have fallen due to him during his employment.
In response, WorkPac commenced proceedings in the Federal Court, seeking declarations that Mr Rossato could not make his claims because he was a casual employee under the Act and the enterprise agreement. In the event the Court found against those arguments, WorkPac sought declarations that it was entitled to restitution of the casual loading which it said was included in Mr Rossato’s hourly rate. It also asserted that it was entitled to bring into account the payments it had made to Mr Rossato on the basis he was a casual employee.
The Court found that Mr Rossato was not a casual employee under the Act or the enterprise agreement. The Court found that WorkPac and Mr Rossato had agreed on employment of an indefinite duration which was stable, regular and predictable. This meant a “firm advance commitment” was evident in each of Mr Rossato’s six contracts. The Court went on to find that WorkPac is not entitled to restitution of the casual loading which it argued was included in the hourly rate paid to Mr Rossato. The Court found that Mr Rossato is entitled to the entitlements that he claimed under the Act and the enterprise agreement with respect to paid annual leave, paid personal/carer’s leave paid compassionate leave and payment for public holidays.
The issues in Mr Rossato’s case are very similar to those addressed in the Skene decision of 2018. As such, our original analysis following Skene is equally relevant here – review our thoughts on Skene here.