High Court fixes casual employment uncertainty

The High Court provided welcome clarification in the casual employment debate on Wednesday 4 August. It has overturned the Full Court of the Federal Court’s findings that Mr Rossato was not a casual employee and was due permanent employment entitlements. The Full Court of the Federal Court’s decision had been a cause of significant concern and uncertainty amongst employers of casual employees.

In the decision in WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23, the High Court emphasised the central importance of the written terms of a contract of employment in determining whether an employment relationship is casual or permanent.

The High Court decided that the Full Court of the Federal Court was wrong in both its Skene and Rossato decisions to look behind the written terms of the contract of employment (which did not include a ‘firm advance commitment’ to ongoing work beyond each individual work assignment) to non-contractual issues, such as the conduct of the parties and the nature of the relationship such as systematic nature of the work performed under the roster worked by the employee.

Interestingly, the High Court found that, while the rosters worked by Rossato were regular and systematic during the period of each assignment, those qualities are entirely compatible with the notion of “casual employment” in the Fair Work Act if there is no firm advance commitment to ongoing work beyond the completion of the assignment in the relevant contract.

While the Federal Government had, earlier this year, gone some way to alleviating the uncertainty resulting from the Full Court of the Federal Court’s decisions by defining casual employment in the Fair Work Act, the High Court’s decision should provide much comfort for employers that they will be able to rely upon properly drafted casual employment contracts to protect themselves from claims for permanent employment entitlements (such as paid annual leave).

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.