High Court Overturns Rossato Casual Decision

The High Court has today unanimously overturned the Full Federal Court’s decision in WorkPac Pty Ltd v Rossato, by holding that Mr Rossato was a casual employee for the purposes of the Fair Work Act 2009 (the Act).

In May 2020, the Full Federal Court observed in Rossato that casual employment is characterised by irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability, and held that a casual employee did not have a firm advance commitment to work. The Full Federal Court subsequently decided that Mr Rossato held a firm advance commitment to work and as a consequence was a permanent employee entitled to paid leave.

The High Court, however, noted that the Act provides for casual employees to be engaged on a regular and systematic basis without reference to the indicia provided by the Full Federal Court.  The High Court held that long term casuals may, under the Act, have an expectation of continuing employment, with no guarantee as to the hours or days of work to be performed. The Court went on to note that an employee’s expectation of future work did not give rise to permanency.

The High Court clarified that a firm advance commitment to work must be an enforceable commitment found either in the employment contract or the conduct of the parties. The Court noted that Mr Rossato had no enforceable right to future hours or days of work arising from his employment contract or from the subsequent conduct of the parties.  The High Court noted that work was offered to him on an assignment by assignment basis, and that he was free to refuse work offered to him.  The High Court ultimately concluded on that basis that Mr Rossato was a casual employee of WorkPac and was not entitled to paid leave.

The decision will be welcomed by employers for its clarification of what constitutes a firm advance commitment to work and consequentially who is a casual employee.

If you would like to discuss the implications of the decision for your business, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.

You can read our initial article & former decision on Rossato’s case here.