On the 4th of August 2021, the High Court of Australia delivered a significant unanimous decision in Workpac Pty Ltd v Rossato  HCA 23. On one hand the decision provides a “stable” definition of what casual employment is; and on the other hand, an opportunity for rogue employers to exploit another potential loophole.
The nature of casual employment and the quest for a clear definition has been an intense battleground for not only the courts but federal and state parliaments also. Indeed, the Workpac case is a culmination of years of disputation.
Mr Rossato was employed by the labour-hire company Workpac from 2014 to 2018. Workpac sent Mr Rossato to the Collinsville mine operated by Glecore for six different projects throughout his employment. Workpac during that period treated Mr Rossato as a casual employee. The issue was whether or not Mr Rossato was entitled to unpaid annual leave, public holidays, and periods of personal and compassionate leave. Workpac swiftly sought clarity from the Federal Court, but the matter found its way to the High Court of Australia.
The decision was reached by scrutinising the General Conditions, the Enterprise Agreement, and six separate assignment contracts. Crucially, it was decided that after signing an employment contract, the conduct of both parties does not matter. The High Court has held that the amendments to the Fair Work Act 2009, by the inclusion of the ‘firm advance commitment’ into the definition of casual employee, has displaced all legal precedents which previously concerned the conduct of the parties after the contract was entered into. Such conduct is now irrelevant. It matters no longer. This is all out the window.
To be more than a casual employee, an individual must prove that there has been a firm advance commitment agreed to by the employer when the contract was entered into. However, the employment contract and any enterprise agreement will also demonstrate what the conditions of a person’s employment are.
In an era where certainty of rights in the employment sector is desired almost as much as water for every human being, the High Court has permitted an interpretation which permits the law to be curved. ‘Firm advance commitment’ is a phrase that may or may not be exploited. The benefits, or damage, of such a vague definition are yet to be seen.
Written by Connor Davey, Solicitor, Commercial Law Division