Statutory entitlements for casual employees: another WorkPac decision

• Published date: 10 June 2020
• Author: Mr Michael Byrnes and Emily Capener
• Subject Matter: Employment and HR, Contract of Employment, Employee Benefits & Compensation
• Law Firm: Swaab

The Full Court of the Federal Court recently handed down a decision confirming that employees categorised and paid as "casuals" with regular and systematic working patterns might be entitled to receive the paid leave entitlements of a permanent employee.

This decision, WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato), closely follows the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Skene) where similar facts and issues were raised, and about which we wrote the article 'Casual Employment: the new rules of engagement' (here). If Skene was a movie, Rossato would be the less surprising and dramatic sequel.

Both Rossato and Skene highlight the real prospect that many employees, who have a firm advance commitment from their employer for continuing and indefinite work, are currently being miscategorised as causal employees. As a consequence, those employees may have valid claims to receive the same entitlements as permanent employees.

Further, Rossato shows that an employer may not be able to claim back the casual loading rates paid to a miscategorised casual employee. The employee might be able to "double dip". This is in spite of the regulation intended post-Skene to address this very issue.

Background

In Rossato, Mr Rossato was employed by labour hire company WorkPac Pty Ltd (WorkPac) between 28 July 2014 and 9 April 2018 to work as a production employee at two Queensland coal mines operated by the Glencore group (Glencore).

During this employment, Mr Rossato was engaged under six consecutive contracts which, although containing minor differences, all purported to provide a casual employment arrangement.

Pursuant to each contract, Mr Rossato was to be paid a casual loading of 25% in accordance with the applicable enterprise agreement. The casual loading was in lieu of the entitlements provided to permanent employees, such as annual leave, personal leave, redundancy pay and notice of termination.

During his employment, Mr Rossato worked alongside a number of permanent Glencore employees. Mr Rossato worked full time hours (as well as additional hours) and did not take any day or part-day off due to personal illness or injury. He worked every shift that he was rostered on (save for Christmas shutdown periods, periods of inclement weather when his labour was not required, an occasion where he was approved to take rest and recreation, and one occasion when he left work to support his wife who had been taken to hospital).

Three of the employment contracts required Ms Rossato to work in accordance...