The Rossato Decision: Casual Employees Entitled to Annual Leave and Personal/Carers' Leave

The Rossato Decision: Casual Employees Entitled to Annual Leave and Personal/Carers' Leave

Do you have casual employees? Have they been employed on regular and systematic hours? Read on as your business may need to review the type of employment arrangements that are in place.

In the recent case of WorkPac Pty Ltd v Rossato [2020] FCAFC 84, the full bench of the Federal Court made a decision that a casual employee was in fact a permanent employee and, therefore, entitled to paid annual leave, personal/carers’ leave and compassionate leave. The full bench made this determination based on the actual working arrangements the employee was undertaking and not because of the type of employment detailed in the employment contract.

In this case, Mr. Rossato was engaged on six separate contracts of casual employment and each differed slightly, including different casual rates of pay over the period of 28 July 2014 - 9 April 2018. The facts of the case were:

  • Mr. Rossato was employed by WorkPac on a labour-hire arrangement to work with Glencore Australia Pty Ltd.
  • Through his work with Glencore, Mr. Rossato worked alongside Glencore permanent employees and other labour-hire employees with limited time off during his engagements.
  • Mr. Rossato was required to work in accordance with Glencore’s roster, which was for a period of up to 12 months in advance.
  • He worked on a drive-in, drive-out basis and was provided with full accommodation by Glencore during each block of rostered shifts.
  • The first three contracts outlined a length of service up to six months in duration and provided a six-month qualifying period (i.e. probation period)
  • The last three contracts did not include a ‘length of assignment’ clause and stated Mr. Rossato was engaged on a casual assignment and could refuse and cancel shifts.

The court considered whether Mr. Rossato was engaged as a casual employee and all three members of the court ruled that he was not a casual employee and, therefore, entitled to leave provisions.

Some of the considerations by the three members were:

  1. The employment engagements included a ‘firm advance commitment’, particularly in the first three contracts, where the ‘length of assignment’ was highlighted and a ‘qualifying period’ outlined.
  2. As Glencore provided free accommodation during Mr. Rossato’s block of rostered shifts, it was unlikely that Mr. Rossato could then legitimately accept or reject the shifts as he saw fit.
  3. For WorkPac to be able to demonstrate a genuine casual employment engagement of Mr. Rossato, WorkPac would have had to demonstrate ‘irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work’, to which WorkPac could not.

A casual employee is not clearly defined within legislative provisions (such as Awards or the Fair Work Act 2009); therefore, case law assists in making a definition. This is the second case involving WorkPac and casual employees, and in the first case of WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Full Court outlined that a ‘casual employee’ has acquired a legal meaning, including:

  • No firm commitment to the other party;
  • Irregular work patterns
  • A lack of continuity;
  • Unpredictability; and
  • Uncertainty as to the period of employment.

Based on the above legal meaning, an example of a casual employee could be someone who works three days this week, has no work next week, five days the following week, and one day the week after – all on differing days and for different hours of engagement.

Further, under the Plumbing and Fire Sprinklers Award 2010, clause 14.3 details:

A casual employee (other than an irregular casual, as detailed in the example above) who has been engaged by a particular employer for a sequence of periods of employment…during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment (depending on the regular nature of the hours worked) if the employment is to continue beyond the conversion process."

Additionally, under the Clerks-Private Sector Award 2010, clause 12.5 permits:

"A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis, which without significant adjustment the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

This case has highlighted, and further by the provisions of the main Awards for our industry, that employers really need to be reviewing how an employee is engaged and working on a practical basis and not just what was detailed in the employment contract at the commencement of employment. Employers should:

  1. Review employment contracts on a regular basis against the actual work practices, to ensure the work practices are reflected in the type of employment
  2. Review rostering practices and amend them if required as casual employees are characterised by their irregular and intermittent work patterns, not the words detailed in the employment contract
  3. Consider offering part-time or full-time contracts to those who work regular hours in accordance with the casual conversion clauses as detailed above, or in accordance with the relevant award
  4. Review employment contracts to ensure the casual loading is clearly identified in a dollar value to potentially permit casual loadings may be able to be set off against annual leave entitlements if a claim is made against the business.

If you would like more information or assistance with this, please contact Kym Campbell or Emma Ross from the MPAQ Workplace Relations team on 07 3273 0800.

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