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CASUAL WORKERS: How The Australian Federal Court Shake Up Of The Labor Law Tree May Affect You

This article aims to shed some light on the very recent labor law case decided by the Federal Court in relation to casual employees. It is a major development with far implications for both employers and employees. As casual employees, you need to get this right. We suggest that you contact us to see if […]

CASUAL WORKERS: How The Australian Federal Court Shake Up Of The Labor Law Tree May Affect You

CASUAL WORKERS: How The Australian Federal Court Shake Up Of The Labor Law Tree May Affect You

By Aylward Game - May 28, 2020 Courts, Employment Law

This article aims to shed some light on the very recent labor law case decided by the Federal Court in relation to casual employees. It is a major development with far implications for both employers and employees. As casual employees, you need to get this right. We suggest that you contact us to see if you have an arguable case to claim your rights. 

CASUAL WORKER How The Australian Federal Court Shake Up Of The Labor Law Tree May Affect YouWhat happened?

The Full Court of the Federal Court in the landmark case of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (20 May 2020) said that Mr Rossato who was a casual mine worker was entitled to be paid annual leave, paid personal/carer’s leave, paid compassionate leave as well as payment for public holidays. The ruling found that Mr Rossato under each of his six contracts was other than a casual employee for the purposes of the Fair Work Act 2009 (Cth) (the FW Act) and not a casual Field Team Member under the 2012 EA.

Workplace argued that Mr Rossato could not make claims with respect to paid annual leave, personal/carer’s leave and compassionate leave entitlements under the National Employment Standards because he was a casual employee within the meaning of ss 86, 95 and 106 of The FW Act or, as a casual employee, claim payment for public holidays under s 116 of that Act. The Court disagreed.

The Federal Court further found that WorkPac was not entitled to bring into account the casual loading payments as part of the remuneration that it had made to Mr Rossato on the basis that he was a casual employee. That is because the purposes of the payments of remuneration did not have a close correlation to the entitlements that Mr Rossato seeks.

Does this ruling impact the definition of casual workers in Australia?

We are of the view that it does. 

The simple translation of the ruling is that— an employer cannot assume that a casual employee as defined in the employment agreement can remain as casual, while at the same time be committed to a set of repeating roasters set in advance for a year, yet being deprived of the entitlements that Mr Rossato is now being able to enjoy. 

How do I know if the decision can benefit my casual employment status?

To answer this question, we need to examine your employment contract. Then we need to further examine whether you fall within the following criteria bearing in mind that the list is not exhaustive–

  • Whether your employment is for an indefinite duration;
  • Whether your employment is regular, predictable such that it would anticipate a firm commitment from you in advance;

As part of my casual employment contract, I am being rewarded in accordance with my casual loading, can I still benefit from the ruling? 

Yes, you may—providing you qualify as a casual employee as defined by the Court ruling.  

If I get to benefit from the ruling, do I have to pay back the casual loading wages?

No–this is because as part of the ruling, the employer is not entitled to the restitution of the casual loading which may have been included in your hourly rate and paid to you before. 

If I am eligible for the ruling, can my employer set off against what they now have to pay as a casual worker? 

No—providing that your employment contract falls within the ambit of the ruling.

What is an estimate of the casual workforce in Australia?

It is estimated that there are about 2.6 million casual employees in Australia out of which 1.6 million work as casual employees on a regular and ongoing basis.

MORE INFO (External) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC//2020/84.html