Casual Employee – some new guidance

The High Court of Australia in a case called Workpac Pty Ltd v Rossato and Ors. (“Rosso”) has recently clarified what is a “casual employee”.    

Mr Rossato was employed as a production worker by the labour-hire company (“WorkPac”) under a series of six contracts, or “assignments”, to perform work for one of WorkPac’s clients. At all relevant times, WorkPac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave and public holiday entitlements owed by employers to non-casual employees pursuant to the Fair Work Act 2009 (Cth) and the enterprise agreement which governed his employment.

The High Court held, that a “casual employee” is:

  • an employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work, and; provides no reciprocal commitment to the employer.
  • where parties commit the terms of their employment relationship to a written contract, the required firm advance commitment (of ongoing regular work) must be found in the binding contractual obligations of the parties; a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Act.

In this case Mr Rossato’s employment was expressly on an “assignment- by-assignment basis“. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment WorkPac was under no obligation to offer further assignments.

That Mr Rossato was to work in accordance with an established shift structure fixed long in advance by rosters did not establish a commitment to an ongoing employment relationship beyond the completion of each assignment.

Now, it is important to note that the Fair Work Act has also been amended to give some clarity to what is a casual and the Fair Work Ombudsman has some guidance here: www.fairwork.gov.au/starting-employment/types-of-employees/casual-employees#:~:text=Specifically%2C%20under%20the%20Fair%20Work%20Act%2C%20a%20person,no%20firm%20advance%20commitment%20and%20become%20an%20employee.

Employers should check any employment contracts to make sure they are up to date, and more importantly do not accidently change the status of an employment relationship.

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