Respondent's Nature of Employment Disputed by Appellant
WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021)
The first respondent employed by the appellant labour-hire-company. The first respondent was treated as a casual employee and was not paid entitlements owed by employers to non‑casual employees. Conversely, the appellant asserts that the respondent worked as a casual employee. The Court, in making its order, relied on the Fair Work Act.
Facts:
The appellant is a labour-hire company whose business includes the provision of the services of its employees to firms engaged in the mining of black coal. Glencore Australia Pty Ltd, operates the Collinsville and Newlands mines in Queensland. Glencore's workforce comprised both its own employees and workers sourced through labour-hire companies such as WorkPac. Mr Rossato, the first respondent, was employed by WorkPac between 28 July 2014 and 9 April 2018, when he retired. WorkPac treated Mr Rossato as a casual employee. Mr Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment.
WorkPac denied Mr Rossato's claims, and promptly filed an originating application in the Federal Court of Australia seeking declarations that throughout his employment Mr Rossato had been a casual employee for the purposes of the Fair Work Act and the Enterprise Agreement. The Full Court of the Federal Court of Australia (Bromberg, White and Wheelahan JJ) concluded that Mr Rossato was not a casual employee for the purposes of the Act and the Enterprise Agreement. The Full Court made declarations that Mr Rossato was entitled to the payments he claimed. The Full Court rejected WorkPac's set off and restitution claims, holding that Mr Rossato's entitlements were not to be reduced by taking into account the amounts paid to Mr Rossato in excess of his entitlements to remuneration as a non‑casual employee.
Issues:
I. Whether or not there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work.
II. Whether first respondent employed as casual employee.
Applicable law:
Fair Work Act 2009 (Cth) s 65(2)(b)(i) - contemplates that an employee may be a casual employee even though the employee is a "long term casual employee", which is a term defined to mean a casual employee who "has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months."
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth) - provided that an award of compensation for permanent employee entitlements payable to an employee mistakenly treated as a casual must be reduced by the amount of any identifiable casual loading paid to the employee.
Doyle v Sydney Steel Co Ltd [1936] HCA 66 - authority for the proposition that the question of who is a casual worker depends on all the circumstances.
Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at 182 [16] - it was stated that the history of the employment relationship is considerably longer than the history of the employment contract.
Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21 at 33 [24] - concerned with whether a person was an employee or an independent contractor of another. On one view, the resolution of that question may depend upon the extent to which it can be shown that one party acts in the business of, and under the control and direction of, the other.
Analysis:
WorkPac submitted that the characterisation of an employee as "casual" depends entirely on the express or implied terms of the employment contract and (in the case of wholly written employment contracts) without reference to post-contractual conduct. Mr Rossato submitted that Glencore's workforce organisation meant the work he was employed to perform was ongoing and indefinite, and WorkPac's need for him to perform this work was stable and predictable.
The Act did not, at material times, define the term "casual employment." However, the view that there must exist a "firm advance commitment" to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability, in order for employment to be other than casual conforms with several provisions of the Act.
Conclusion:
The Court made orders allowing the appeal. The orders made by the Full Court of the Federal Court of Australia on 29 May 2020 are set aside. The Court declared that Mr Rossato was a casual employee for the purposes of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) in respect of each of the six assignments with WorkPac Pty Ltd between 28 July 2014 and 9 April 2018; and a "Casual Field Team Member" for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012.
