By Ioanna Moliviatis, Law Clerk
In the most recent High Court hearing WorkPac pursued an appeal to have the orders of the Federal Court set aside to establish that Mr Rossato was a casual employee as per the Fair Work Act 2009 (Cth)[1] and the Enterprise agreement he worked under.[2] It was found in this most recent decision that Mr Rossato was a casual employee and not entitled to the benefits in which he was seeking.
Rossato was an employee of the labour hire company WorkPac. Rossato when employed had signed an Employee Terms and Conditions declaration and a contract. The work undertaken by Rossato was set by a weekly roster and all rosters were set well in advance with stable and consistent shifts.[3] Throughout Mr Rossato’s employment he had been engaged by 6 Notices of casual employment for 6 different work contracts with Work Pac which would terminate after the job was finalised.[4] This case gave rise to the question of casual employment under the act and the idea of ‘firm advance commitment’ which was earlier established in Skene v WorkPac.[5] Mr Rossato brought forth a case of ‘firm advanced commitment to establish that he was entitled to any entitlements that permanent job types are awarded with. Although Work Pac had an agreement with Rossato[6] by way of the employment contract established regular set hours, this was not an intention to set ‘firm advanced commitment’. Although there may have been an understanding of this Rossato relied on the non-contractual aspects of his employment with WorkPac, like his rosters, to establish otherwise.[7]
The High Court found on appeal that Mr Rossato was in fact a casual employee. In which the following areas were addressed in the appeal.
- This appeal established that any obligations contractual in nature between Work Pac or Rossato was the key determining factor. As express terms of the contract need to be given effect. Whilst also being in line with legislation.
- The contract that Rossato signed with WorkPac did not suggest that the work would be ongoing after each job which was evident in each of the 6 notices of casual employment which he signed.
- Furthermore, any reliance Mr Rossato had to argue his position of ‘firm advanced commitment’ outside the scope of his contract, like his rosters and regular ongoing shifts did not hold any weight.
- Rossato was essentially found to be a casual employee based on provisions in his contract. He was paid a casual loading in Lieu of any entitlements and Rossato had the capacity to choose whether he accepted each job and the hours he was rostered. [8]
Therefore, on the above findings the court rejected that in order to establish an employment relationship that the entirety of the relationship outside the scope of a contract should also be considered.[9] Thus, indicating that any matters not agreed upon at the time the employment relationship was formed holds little significance.
The decision from the High Court establishes the focus on agreements made in employment contracts. This combined with the most recent amendments in the Fair Work Act 2009 (Cth) establishes that what an employee and an employer agree upon at the time of the offer is what stands.
[1] Fair Work Act 2009 (Cth).
[2] WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012.
[3] WorkPac Pty Ltd v Rossato [2020] FCAFC 84.
[4] WorkPac Pty Ltd v Rossato [2020] FCAFC 84.
[5] WorkPac Pty Ltd v Skene [2018] FCAFC 131.
[6] WorkPac Pty Ltd v Rossato [2020] FCAFC 84.
[7] WorkPac Pty Ltd v Rossato [2021] HCA 23.
[8] Ibid.
[9] Ben Motro, Andrew Stewart, ‘The Implications of WorkPac v Rossato – Not Just a Casual Issue’ (August 2021) < https://piperalderman.com.au/insight/the-implications-of-workpac-v-rossato-not-just-a-casual-issue/>.
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