- The High Court has adopted a ‘back to basics’ legal analysis of employment law in WorkPac Pty Ltd v Rossato  HCA 23.
- The classification of an employee’s employment is determined by the terms of the employee’s contract.
- Certainty of contract trumps expectations and hopes, even in employment.
In the much anticipated decision of WorkPac Pty Ltd v Rossato  HCA 23, the High Court has found that a casual employee is one who does not have a firm advance commitment to ongoing work. The Court focused on the terms of the employee’s contract to ascertain whether there was a firm advance commitment to ongoing work, not to the subsequent conduct of the parties. By adopting this approach, the Court has further entrenched the primacy of contract law in characterising work relationships, underpinned by enforceable promises rather than expectations or hopes.
The High Court’s consideration of the issue followed legal manoeuvring around two decisions of the Full Court of the Federal Court. The first was the decision of WorkPac Pty Ltd v Skene  FCAFC 131 (‘Skene’), which at the time was met with considerable publicity, and business angst.
In Skene the Full Court of the Federal Court found that a determination of whether or not an employee was a casual, required an assessment of the substance of the relationship, including post contractual conduct. Ultimately, despite the terms of the enterprise agreement and employment contracts, other factors were given greater weight and the relationship was held not to be casual employment. The effect was the characterisation of a type of employment which could change over time.
WorkPac Pty Ltd v Rossato  FCAFC 84 (‘Rossato’) was a vehicle that tested the Skene case. A differently constituted Full Federal Court essentially upheld the principles in Skene. It is that decision that has now been overturned by the High Court.
The facts in Rossato
WorkPac Pty Ltd is a labour hire company which, amongst other things, supplies labour to mining companies in Queensland. Mr Robert Rossato was an experienced coal mine worker who had been engaged at various coal mine sites for a nearly unbroken period from July 2014 until his retirement in April 2018. He was a ‘drive in, drive out’ employee who stayed in accommodation provided by the mine operator whilst on site. Mr Rossato worked principally on a seven days on/seven days off roster which was set by the mine operator in January of each year, and notified to Mr Rossato at that time. He was employed under the terms of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (‘2012 EA’). Relevantly, this Agreement provided for a 25% casual loading that was stated to be in lieu of all leave entitlements (other than long service leave). Unusually for such agreements, it specifically provided attributed components of the leave loading to entitlements foregone by virtue of casual employment (e.g. 11% of the leave loading was in lieu of annual leave and leave loading entitlements).