High Court determines Rossato correctly classified as a casual employee

WorkPac v Rossato - Federal Court Case - Casual Employees.png

High Court determines Rossato correctly classified as casual employee

A Full Bench of the High Court has overturned earlier decisions, which determined that a casual employee of a labour-hire, working on several mine sites should be classified as a permanent employee, and therefore entitled to various leave provisions such as annual leave, carer’s leave, and payment for public holidays not worked.

To understand the reasoning behind the High Court’s decision, it is first prudent to detail aspects of the employee’s work arrangements. Mr Rossato (Rossato) was employed by Workpac, a labour-hire that provides workers to mining contractors in the black coal industry. Workpac had engaged Rossato to work as a production worker at Glencore mines at Collinsville and Newlands between 28 July 2014 and 9 April 2018, when he retired.

Rossato had been engaged as a casual employee working under an employment contract called an NOCE (Notice of Offer of Casual Employment). Under the provisions of each NOCE, it was expressly provided that employment was on an ‘assignment – by – assignment’ basis, with Rossato able to reject an offer of a further assignment, and Workpac was under no obligation to offer any further assignments.

During his employment, he completed six separate assignments.

In the decision of the Full Bench of the High Court, Rossato was found to be a casual employee largely on the basis that there was no firm advance commitment from Workpac for ongoing employment. Rossato was free to accept or reject rostered hours, and there was no obligation to offer him additional assignments.

There was no suggestion from either party that the contracts did not reflect the true nature of the employment relationship between Rossato and Workpac. As was noted in the majority decision, “there is no reason not to regard the NOCEs and associated contractual documents as true, reliable and realistic statements of the rights and obligations to which the parties agreed to bind themselves”.

As the judges noted in reference to the contract conditions Rossato was engaged under,

“the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed … the whole point of the arrangements under which the parties undertook one assignment at a time was that there should be no basis for any suggestion that either of them was providing a firm advance commitment to continuing work.”

As they also commented, “While Mr Rossato might fairly be said to have had, over time, 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”.

Unlike earlier court decisions, the High Court did not place great weight on the fact that Rossato was provided with an advance roster often containing twelve months of shifts.  Further, the High Court did not address the remote location and lack of alternative work as expected.

In determining Rossato to be a casual employee, the High Court noted that there was no requirement to consider Workpac’s alternative submission that they should be able to offset additional monies paid to him under casual loading against leave provisions. However, they did acknowledge the recent legislative amendment that has confirmed this ability, as per the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.

Workpac Pty Ltd and Robert Rossato & Ors [2021} HCA 4 August 2021

For questions about labour-hire, contractors and employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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