The High Court has overturned a decision that would have given long-term casuals access to paid leave entitlements.

In 2021, WorkPac successfully challenged a finding that coal mineworker Robert Rossato was entitled to paid leave while engaged as a casual on consecutive contracts for almost four years.

The Full Court of the Federal Court had previously ruled that Mr Rossato was not a casual employee for the purposes of the Fair Work Act and WorkPac’s enterprise agreement.

The Federal Court found that a casual employee is one who has “no firm advance commitment” from their employer on the duration of their employment or the days or hours they are to work and provides no reciprocal commitment.

A key aspect of Mr Rossato’s case was that there was a commitment in the written contract for hours of work and their duration. However, the court found that this made a binding “contractual obligation” on the parties.

WorkPac engaged Mr Rossato expressly on an “assignment-by-assignment basis”, that he could accept or reject assignments, and after each assignment, WorkPac had no obligation to offer another one.

This ruling overturns that decision.

The High Court found Mr Rossato’s work pattern did not establish a commitment to a continuing employment relationship when each assignment ended. The contractual arrangements between WorkPac and Mr Rossato “did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment”. Meaning that the expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Fair Work Act, the court found.

The court found that a casual employee is one who has “no firm advance commitment” from their employer on the duration of their employment or the days or hours they are to work and provides no reciprocal commitment.

The court held that when he carried out each assignment, Mr Rossato worked as a casual employee under the terms of the Fair Work Act and WorkPac’s enterprise agreement.

What this means for employers

The effect of the decision and the legislative changes by the Government have confirmed that:

• casuals are not entitled to simply assume their work is regular and systematic and
• the need for employers to ensure that they have clear written employment contracts in place and that they accurately reflect the situation of each employee.

The Skene and Rossato cases, both involving WorkPac, prompted the Federal Government to make legislative changes that define a casual worker on the basis of their job offer, rather than subsequent conduct, and also enable employers to set-off any casual loadings paid to workers who pursue claims that they are permanent employees.

Master Electricians have unlimited access to the Employer Advice Team. For support around employment contracts, wages, or Award information contact the Employment Advice Team on 1300 889 198.