July 2020 | Jonathan Harris
The Full Court of the Federal Court in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato) has again confirmed that a ‘casual’ employee who works systematic and regular hours is entitled to the same paid leave entitlements as permanent employees.
Facts
Between 28 July 2014 and 9 April 2018 Mr. Rossato was a mine-worker employed by recruitment agency WorkPac for companies within the Glencore Group. Between these dates Mr. Rossato was employed under six consecutive employment contracts. All six contracts described the nature of his employment as casual. Additionally, Mr Rossato’s remuneration included a casual loading of 25% paid in lieu of entitlements payable to all permanent employees under the Fair Work Act 2009 (Cth)
Whilst an employee of WorkPac, Mr Rossato:
- worked every shift that he was rostered;
- worked on a ‘7 days on/7 days off’ schedule; and
- worked on rosters that were scheduled sometimes as much as 12 months in advance.
On 2 October 2018, Mr Rossato sent correspondence to WorkPac seeking payment for entitlements on the basis that he was, throughout his time at WorkPac, a permanent employee.
In response, WorkPac commenced proceedings in the Federal Court seeking either a declaration that Mr. Rossato was a casual employee or a judgment entitling WorkPac to ‘set off’ any amount owed in entitlements to Mr. Rossato on the basis that he was paid a casual loading of 25% throughout the course of his employment.
Decision
The Full Court of the Federal Court held that Mr. Rossato was a permanent employee because his employment was “regular, continuing and predictable”. As a result, Mr. Rossato was entitled to the leave entitlements afforded to all permanent employees.
Additionally, the Court held that WorkPac was not entitled to ‘set off’ any amount paid to Mr. Rossato in casual loading against the permanent employee entitlements he was claiming.
The implications of this decision are significant because casual employees are entitled to ‘double dip’ by receiving both casual loading and leave entitlements.
What now for employers?
As always, we recommend you seek legal advice before drafting any employment contract. However, here are some points to keep in mind:
- continuously monitor and review casual roster arrangements to ensure the nature of the employment remains irregular and uncertain;
- consider converting any casual employee who have been given a ‘firm advance commitment’ of continuing and indefinite work, to permanent employment;
- ensure casual employment termination is available at short or no notice; and
- ensure ‘casual loading’ is separately identified in existing and future employment contracts.
For enquiries about casuals and employment contracts, please contact Scott Freidman or Jonathan Harris on 9231 2466.
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