High Court Ruling on Casual Workers

In Workpac v Rossato (2021), the High Court reversed on appeal a decision of the Full Federal Court that granted National Employment Standard (NES) paid leave entitlements to a worker classified and paid as a casual employee. 

The High Court ruled that Rossato was employed on an “assignment by assignment” basis, which did not include a mutual commitment to an ongoing working relationship; that there was no advance commitment; and that a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Fair Work Act (FW Act).

The decision did not affect the principle established by the Federal Court (and since adopted in the definition of casual employment in the FW Act), that a casual employee, for the purposes of the FW Act, is an employee who has no firm advance commitment as to the duration of the employment or the days (or hours) of work. The High Court simply took a different view based on the facts and circumstances of whether such a firm advance commitment had been given to Mr Rossato by the employer.

This is a timely reminder to all employers to ensure their employment contracts are carefully worded and aligned to the recent legislative definition of casual employment.

Disclaimer: This summary is a guide only and is not legal advice. For further information on casual employment, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.