WorkPac v Rossato Article Series (Part 3): Implications
Welcome back to the third and final instalment of Certex’s new article series exploring the WorkPac v Rossato case.
This third instalment will explore the implications from the case and what it means for employers.
Outcome
As we explored in the last article in this series, the Full Federal Court in WorkPac v Rossato concluded that Mr. Rossato was indeed a permanent employee during the relevant period of his employment with WorkPac.
As a result, the Court ruled that he was entitled to the leave entitlements that a permanent employee would be. The Court also rejected WorkPac’s argument of ‘restitution’ (coming from the casual loading Mr. Rossato was paid under the ‘casual’ arrangement). Therefore, it was ruled that WorkPac was obliged under the legislation and statutory frameworks to pay Mr. Rossato for any leave and public holiday entitlements he was owed (as per the Fair Work Act and relevant Enterprise Agreement).
This case clearly demonstrates that there are significant (and costly) consequences in getting it wrong with regards to proper employee remuneration.
What does this mean?
Even if there is room for appeal (WorkPac has already applied for special leave to appeal the decision to the High Court) or alternatively, legislative reform, the risks exposed by WorkPac v Rossato (as it stands) remain too costly to ignore.
There can be no clearer signal to employers that they should review employment arrangements and consider what types of arrangements they actually reflect in practice. This applies especially those which may have been deemed ‘casual’.
After all, the Court in WorkPac v Rossato made clear that just because the language ‘casual employment’ was used to describe an arrangement, would not conclusively indicate a casual arrangement.
The factors the Court used to reach their decision (and discussed in Part 2 of the article series) may also assist employers to properly assess employee arrangements.
For businesses, this may mean huge liabilities if they have been employing casuals that do not meet this refined definition of a ‘casual worker’. It’s important to understand the full extent of the problem and risk as well as ensure that moving forwards, proper employee remuneration structures have been established.
One way to achieve this is by completing an employment practices check which assesses the compliance gap between the way you engage workers and what the law states. Armed with this knowledge, you can build and improve on your employment arrangements to ensure you’re mitigating the risks.
Certex’s iEngage employment check assessments are delivered but industry professionals who spent a half-day in your business to check your compliance.