You might say they are casual, but they might not be!

We have previously advised of the WorkPac v Skene [2018] FCAFC 131 decision where it was concluded that section 86 of the Fair Work Act applied to a casual employee who was, amongst other things, employed on a regular, systematic and ongoing basis, was entitled to annual leave.  (See Is your casual employee actually a casual employee?).   Instead of WorkPac appealing the decision to the High Court they instead opted to seek declarations in a further case– WorkPac v Rossato where it was hoped that this decision would overturn or further clarify the decision in Skene and what that means for casuals.

We recommended at that time to reduce the risk of claims by casuals for annual leave and other entitlements, employers should ensure written confirmation of casual status without offering or committing to ongoing or regular work.   The confirmation should specify the casual loading paid and why the loading is paid (ie: in lieu of annual leave, personal leave, notice of termination and other entitlements for full time and part time employees).

The decision of the Full Federal Court in this case, WorkPac Pty Ltd v Rossato [2020] FCAFC 84, has confirmed that casual employees working regular and systematic hours with ‘predictable periods of working time’ and a ‘firm, advance commitment to ongoing work’ are likely to be considered permanent employees, regardless of what their contract says and regardless of the payment of a casual loading.   With 2 million casual employees in Australia, this represents a big risk for employers.

In this case, Rossato was engaged by WorkPac under 6 casual contracts at various locations over 3 ½ years.  The contracts identified that he was casual and a number of contracts referred to the payment of casual loading incorporated.  In fact, one contract specified the 25% loading and what it was for.    Rossato was engaged under rosters, often operating on a 7 days on / 7 days off basis.   The case endorsed the principles previously found in WorkPac v Skene, that:

• Engagement as a casual in a written contract is not conclusive, all features of the relationship must be looked at;
• A casual employee has no firm advance commitment from the employer to continuing and indefinite work, and
• Casual employment is distinguished by ‘irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.’

Rossato was owed unpaid annual leave, personal leave, compassionate leave and public holidays entitlements, regardless of that fact that he was a paid a casual loading in lieu of such entitlements.  However, it is likely it will be appealed in the High Court.

In the meantime, we continue to recommend a review of casual arrangements and contracts.

And, we don’t think we’ve heard the last of casual employment.  The Commonwealth Attorney-General had indicated the Commonwealth will intervene in the appeal.  Outside the appeal, the Attorney-General has committed to an urgent review of the legislation.