IS DOUBLE-DIPPING THE NEW NORM?
CASUAL VERSUS PERMANENT EMPLOYMENT.

The landmark ruling of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 is set to change hiring patterns as the Federal Court of Australia has again confirmed that an employee engaged as a casual can still be considered a permanent employee despite there being a contract of employment stating otherwise.

WorkPac v Rossato Facts

For approximately four years, Mr Rossato was employed by WorkPac under six consecutive contracts of employment which labelled his employment as casual. Relying on the the WorkPac v Skene decision, the court found that:

  • the contracts provided for continuing work to be performed to an agreed pattern of full-time hours;
  • despite some variability to the actual hours of work allocated, it was nevertheless pre-programmed long in advance and fixed by a roster; and
  • it was implied that Rossato was required to perform the work as allocated to him on the roster and was unable to elect whether to work a shift or not.

Casual versus Permanent

The Federal Court determined that staff with regular shifts should not be considered ‘casual’ workers, even if their contracts define them as casual staff. In this case, despite the plaintiff being labelled as a ‘casual’ employee by his employer, because he worked ‘regular, certain, continuing, constant and predictable shifts set in advance for four years’, he was characterised by the Court as a permanent employee entitled to annual leave.

Furthermore, casual employees can still be considered permanent despite there being a contract of employment stating otherwise. Rossato’s employment contract stipulated that he was hired on a casual basis and received a casual loading ‘in lieu’ of leave entitlements.

Therefore, if it is found that a casual employee:

  • is employed for an indefinite duration with set rosters well in advance;
  • is employed on a ‘stable, regular and predictable’ basis; and
  • is subject to an employment contract that does not specify the nature of their role, the amount of casual loading received and a set-off clause,
  • the court may characterise them as a permanent employee with access to leave entitlements.

What does this mean for employers?

This Decision cements the emerging view of the courts that long-term casual employees who work regular and systematic hours are likely to be considered permanent employees rather than casual.

To mitigate against the risk of exposure to claims for unpaid legal entitlements from existing and former long-term casual employees, we recommend that employers:

  • undertake a review of their employees engaged as casuals and determine the level of risk associated with them being considered as a permanent employee;
  • review the roster cycles of casual employees and determine the feasibility of implementing a roster to deter casuals from working regular and systematic hours; and
  • update its casual employment contracts to include a set-off clause as well as a clause permitting the employer to reclaim casual loading payments in circumstances where the employee is considered permanent.

Given the major uncertainties caused by this Decision, the team at Antunes Lawyers are here to address any questions in relation to mitigating exposure to claims from casual employees and how to best engage casual employees in future.

Author: Tim Arvanitis

Contact our Employment and Workplace Relations team today at enquiries@antunes.com.au or phone us today on 02 9964 0499 to arrange a video conference.

The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.