By Jack de Flamingh and Chris Bell -
Snapshot
- In the recent, highly anticipated decision in Workpac Pty Ltd v Rossato, the Full Federal Court of Australia has confirmed the test for a casual employee is a ‘firm advance commitment’ as to the duration of employment or work.
- The employer in this case was unsuccessful in recovering the casual loading paid to the employee. In addition to the casual loading, the employer was also obliged to provide leave and public holiday entitlements that would ordinarily only be available to continuing employees.
- All eyes now turn to the application for special leave to appeal to the High Court, and the Government to provide a legislative fix.
In a decision with far reaching implications for many Australian businesses, the Full Court of the Federal Court in WorkPac Pty Limited v Rossato [2020] FCAFC 84 has determined that an employee (Mr Rossato) who had worked a regular roster for his employer (‘WorkPac‘) over a number of years was not a casual employee, despite the fact that he was formally characterised as such and had been paid a casual loading throughout the entire period of his employment.
The finding had the consequence that WorkPac was obliged to provide Mr Rossato with certain leave and public holiday entitlements that in the normal course would be available only to continuing employees.
Significantly, the Court also rejected WorkPac’s arguments that it should be permitted to apply the casual loading it paid to Mr Rossato against those entitlements.
In common parlance, the Court’s decision meant that Mr Rossato could ‘double dip’ by receiving the casual loading as well as the leave entitlements for which the casual loading was meant to compensate.
