WorkPac v Rossato Article Series (Part 1): Background
Welcome to the first instalment of Certex’s new article series exploring the WorkPac v Rossato decision (following on from the WorkPac v Skene case).
Keep an eye on our newsletter and website where we will be releasing these articles delving into the issues and conclusions that resulted from this major case.
This first instalment will explore the background of the case and why it is such a significant development.
The decision delivered by the Full Bench of the Federal Court in the case of WorkPac v Rossato has sent ripples through the Australian labour hire industry. It confirmed that casual workers employed under arrangements that resemble a permanent’s worker’s have a right to the entitlements of a permanent worker (such as paid annual leave).
Why is this case so significant?
Simply put, the implications are far reaching and cannot be ignored.
Roughly 20% of the entire Australian workforce is employed on a casual basis. As of 2010, the ABS reported that, compared to employees generally, labour hire workers were more likely to be without holiday or sick leave entitlements (79% versus 23%). These entitlements, or lack thereof, is often used to indicate casual employment.
The Labour Hire industry has tended to absolve themselves of the complexity of this issue with a safety in numbers approach. However, the WorkPac case heralds the end to such days and indicates significant changes in the risk in this area.
Background
The case of WorkPac involved a ‘casual’ mine worker who was deemed to be entitled to receive permanent worker entitlements.
This worker was engaged in six contracts of employment and his shifts followed a roster that accounted for up to a year in advance.
The first three of these contracts specified the length of the assignment and specified that the worker would follow the rosters. The final three contracts on the other hand did not specify a length of assignment but made it clear that the worker would be employed on a casual basis and could refuse or cancel his shifts.
The distinction between these two types of arrangements is one issue that will become central to the discussion of this case.
Issues raised in the case
In the absence of a clear definition in the Fair Work Act, what qualifies as casual worker?
How did the court rule regarding retrospective payment of entitlements and restitution for entitlements?
How does this change employer liability?
Look forward to the next article where these issues, along with many others, and their implications for businesses will be discussed!