A recent decision handed down by the Federal Court of Australia has revised the entitlements that ‘casual’ workers are eligible to.
In the matter of WorkPac Pty Ltd v Rossato  FCAFC 84, the Federal Court considered the characterisation of an employee as a ‘casual’ worker, and whether this prevented them from accessing certain employee entitlements as set out in the National Employment Standards (NES).
Mr Rossato was an employee of WorkPac, a labour hire company, for three and a half years. Throughout this time, six consecutive employment contracts had been made between Mr Rossato and WorkPac. Under each contract, Mr Rossato was treated as a ‘casual’ employee.
In April 2019, Mr Rossato brought proceedings against WorkPac claiming that he had not received any paid annual leave, paid personal/carer’s leave, paid compassionate leave and public holiday pay that he was entitled to under the Fair Work Act 2009 (Cth) (Fair Work Act) and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (EA).
The Court focused on the characterisation of the employee as a ‘casual worker’ and noted that, the status of Mr Rossato’s employment was not wholly dependent upon express written terms (such as using the term ‘casual) in the contract, as asserted by WorkPac. The facts of the employment such as the nature of work and period of employment are just as important to consider in the characterisation of a worker’s employment.
The defining characteristic of a casual worker was the absence of a ‘firm advance commitment’. These include factors such as regular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.
For the purposes of WorkPac’s EA and given the nature of his employment, the Court found that Mr Rossato was a permanent employee, even if named a ‘casual’ in his contracts. His employment was stable, regular and predictable, reflective of a firm advance commitment in each of his six contracts.
Thus, Mr Rossato was entitled to the employee entitlements that he claimed under the Fair Work Act and the EA with respect to paid annual leave, paid personal/carer’s leave, paid compassionate leave and payment for public holidays.
Given that casuals make up 20% of the Australian workforce, this decision has the potential to entitle thousands of casual workers to employee entitlements. Even with the higher pay rates received as a casual, employees may be entitled to ‘double dip’ to receive paid leave entitlements. The decision also has the potential to have significant implications on employers and their payment obligations to their employees.