No casual affair: Double dipping and the Rossato decision

• Published date: 30 May 2020
• Author: Mr Jack de Flamingh and Paul Burns
• Subject Matter: Employment and HR, Contract of Employment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Corrs Chambers Westgarth

The decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 throws into sharp focus some of the potential pitfalls associated with engaging employees on what purport to be casual arrangements but which subsequently turn out to be permanent employment. As such it has important financial, legal and industrial implications for many Australian businesses.

The facts

Between July 2014 and April 2018 Mr Robert Rossato was engaged by WorkPac Pty Ltd to work at two coal mines in Queensland.

Over that period he was engaged under a series of six separate employment contracts. Some of these contracts differed as to matters of detail but all purported to create a relationship of casual employment. This was reflected in the fact that Mr Rossato was paid a 'casual loading' of 25% in accordance with the relevant industrial instruments.

The casual loading was expressed to be in lieu of Mr Rossato's entitlements in relation to annual leave, personal leave, notice of termination and redundancy pay. It also included a payment in recognition of the 'itinerant nature of casual work'.

Mr Rossato worked on the basis of rosters provided by his employer and utilised at the mine, worked on a 'drive-in-drive-out' basis and, whilst at the various mine sites, lived in free accommodation provided by the mine operator.

Mr Rossato retired from work in April 2018. Several months' later lawyers acting on his behalf wrote to WorkPac claiming payment in respect of annual leave which he had not taken over the period of his employment with the Company, together with periods of personal and compassionate leave that had been taken by him over...