WorkPac v Rossato Article Series (Part 2): Decision

Welcome back to the second instalment of Certex’s new article series exploring the WorkPac v Rossato case.

Keep an eye on our newsletter and website where we will be releasing articles in a series that delve into the issues and conclusions that resulted from this major case.

This second instalment will explore some of the principles that emerged from this case.

You can read part 1 and part 3 here.

Decision

The Full Federal Court found that Mr. Rossato was indeed a permanent worker during the relevant period of employment.

The Court also confirmed the principle that emerged in WorkPac v Skene that a ‘casual’ worker whose working arrangement mirrors that of a permanent worker is likewise entitled to the same entitlements (paid annual leave and compassionate leave etc).

Areas of Concern

Casual worker

In determining that Mr Rossato was in fact a permanent worker, the Court drew particular emphasis on the ‘firm advance commitment’ evident in Mr Rossato’s working arrangement.

’firm advance commitment’ was used by the court to describe the clear, pre-determined nature of the working arrangement.

It was also recognised by the Court that even though the contract of employment made multiple references to ‘casual’ employment, this alone could not be conclusive. Rather, the Court indicated that the ‘totality of the relationship’ needed to be examined.

‘totality of the relationship’ means the Court looked at the entire relationship between employee and employer to determine the working arrangement (rather than just the contract itself).

A major factor that played into the Court’s conclusion was the pre-determined roster hours (often decided up to 12-months in advance and spanning long periods). There was little disruption between periods of work and the hours would generally remain regular (much like those of a permanent worker). Additionally, Mr Rossato’s employment arrangement indicated his employment would continue indefinitely which was subject only to termination (with notice).

The Court’s reasoning for reaching their decision provides clearer guidance to employers as to what factors to look out for to avoid getting caught up in a similar (and costly) position.  

Restitution

WorkPac also submitted the argument that, as per the worker’s enterprise agreement, his ‘casual’ employment and corresponding wage included a 25% loading. This loading was stipulated as being in lieu of permanent employee entitlements. Therefore, WorkPac argued that this loading should mean they could obtain a ‘set off’ against the entitlements they were being ordered to pay.

The Court unanimously rejected this argument.

End of the story?

Hardly! WorkPac v Rossato confirms the earlier case of WorkPac v Skene and further expands on distinguishing ‘casual’ working arrangements from permanent. However, ambiguities nevertheless remain. Whilst the Court did unanimously reject WorkPac’s argument for restitution, the judges differed in their reasoning. This could indicate there may be room for exceptions.

More broadly, WorkPac has sought special leave to appeal the decision to the High Court. There is still the likelihood of reform to the legislation governing this area in response to this case. In fact, there have already been calls for a clearer definition of ‘casual employee’ to be inserted into the Fair Work Act to help further clear things up.

Look forward to our next article, the third and final one in this series, where the penalties and implications for employers will be explored!