The High Court recently handed down its decision on WorkPac's appeal  regarding how you define and classify casual employees. The decision to uphold Workpac's appeal, coupled with the recent amendments this year to the Fair Work Act 2009, provides more confidence for employers on how casual employees are defined under Australian law.Christine Maibom, Elizabeth Reed & Grace Turner-Mobbs, Maddocks Lawyers
The statutory definition of 'casual employee' was recently introduced into the Fair Work Act (Act). This decision pre-dates that statutory inclusion. The statutory definition now prevails. However the case may provide employers with some guidance regarding how that 'casual employee' definition will be applied.
When assessing whether an employee is a casual, the High Court emphasised the importance of what is agreed between an employer and employee at the time the employment contract was entered into. Consistent with the new statutory definition, the High Court considered that the assessment of the nature of Rossato's employment did not involve reviewing the way the employment unfolded after he agreed to his employment contract.
Key takeaways in respect of casual employees:
Employers should also remember that there are other relevant factors:
Mr Rossato was a production worker employed by WorkPac under a series of six casual contracts to perform work for one of WorkPac's clients. Mr Rossato claimed that he was not a casual employee because he performed regular, constant and predictable work under six assignments. He claimed that he was a permanent employee and therefore was entitled to have untaken annual leave, public holidays and periods of leave during his employment.
At trial, the Full Federal Court held that:
The Federal Court's decision was particularly controversial because not only was Mr Rossato found to have been a permanent employee despite his contracts stating that he was a casual, but also because Workpac was prevented from setting off the casual loading paid, Mr Rossato was essentially able to 'double dip' on his entitlements.
On appeal, the High Court's decision unanimously overturned the earlier Full Federal Court's decision, finding that Mr Rossato was a casual employee and that his employment was on an 'assignment-by-assignment basis'.
In determining whether an employee is casual, the High Court considered:
In summary, the High Court found that Workpac and Rossato had not agreed that the employment would be on an ongoing basis. In particular, because the written terms and conditions of Mr Rossato's employment expressly provided that the employment was on an 'assignment-by-assignment basis', Mr Rossato could accept or reject an offer of an assignment and WorkPac was under no obligation to offer further assignments.
While the Rossato decision reflects a legal position on casual employment that many employers have hoped for, the new statutory definition of 'casual employee' limits the practical impact of the decision.
It is important that employers remember to look at the statutory definition of 'casual employee' in section 15A of the Act to ascertain whether it is engaging casuals in a manner that is consistent with the Act.
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Employment team.
You can read earlier ClearLaw articles on Employment or HR topics here.
 Workpac v Rossato & Ors  HCA 23
Julian Smith is a partner in the Maddocks Commercial team.
Julian advises extensively in the following areas:
Julian advises clients ranging from public companies servicing the wholesale financial services market to high net worth individuals and their advisers.
Julian has been with Maddocks since undertaking articles in 2001.
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For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.