High Court overturns casual employment ruling

High Court overturns casual employment ruling

On 4 August 2021 the High Court of Australia unanimously overturned the previous ruling in the WorkPac vs Rossato case handed down by the Federal Court in May 2020.

This is a significant decision for the Labour Hire industry and any employer that engages casual employees, with Australia’s highest court of appeal providing a final determination, finding that ‘casual employment’ is determined by express terms in written, legally sound employment contracts.

Under previous rulings, if a casual employee had a reasonable expectation of ongoing work and performed work according to a regular, systematic pattern of hours, they were able to be considered permanent employees even if their contracts stated otherwise and they had been paid casual loading in line with the NES and award conditions. The High Court of Australia has overturned this decision, ruling that a ‘firm advance commitment’ was determined by the fixed term nature of the contracts and the employee’s right to accept or decline these contract periods – not merely an expectation of ongoing work resulting from multiple consecutive fixed term contracts, nor a fixed, long term roster.

This decision also resolves the potential exposure to employers for ‘double-dipping’ claims where an employee has been paid a casual loading in place of permanent employment entitlements. 

In handing down its decision the High Court of Australia confirmed:

What does this mean for employers?

Review your casual employment contracts (and that of your Labour Hire suppliers) to ensure they are legally sound and include express terms regarding the nature of employment as casual and non-ongoing. If you ensure that you have written terms signed by both parties that reflect the agreement to casual terms, employers can be assured that the court will recognise those casual conditions in future court rulings. 

What does this mean for employees?

As a casual employee you are entitled to written, clear contract terms that provide certainty and confidence of how you are engaged. You should ensure you have in place appropriate contracts that state clearly the terms of each assignment; including duration and remuneration. As a casual employee you are also entitled to accept or decline any such offer of assignment, and you must be paid above the minimum amount in your award along with a minimum casual loading in place of any leave entitlements.

Speak with your employer if you are uncertain of your arrangements and ensure you have copies of any agreements in writing. 

For Dixon Appointments’ casuals, you will always be offered assignments verbally, after which will then be confirmed in writing in the form of an Assignment Schedule. Each Assignment Schedule forms a legal component of your Casual Employment Agreement with Dixon and must be formally accepted (or declined if the terms do not suit you) before you are able to be employed on any casual assignment. 

For further details or to obtain a copy of your Assignment Schedule/s please log in to your candidate portal or speak with your Recruiter.