WorkPac Pty Ltd v Rossato  HCA 23
On 4 August 2021 the High Court handed down their landmark decision in WorkPac Pty Ltd v Rossato, stating that the main consideration in determining how to characterise whether an employee is casual or not, should be by considering the plain and ordinary meaning of the employment contract. The High Court overruled the decision made by the Full Court of the Federal Court, stating that it is not the role of the courts to ‘’strain legal concepts and language’’ to moderate a perceived unfairness.
WorkPac is a labour-hire company whose business includes providing employee services to clients in the coal mining industry. Mr Rossato was an employee of WorkPac from 28 July 2014 up until his retirement on 9 April 2018, and was treated as a casual employee for the duration of his employment.
Mr Rossato’s matter arose when he wrote to WorkPac claiming he was owed money upon his retirement for annual leave, paid public holidays and personal and compassionate leave, under WorkPac’s Enterprise Agreement. Mr Rossato’s claim was made on the basis of the Full Court of the Federal Court’s 2018 decision of WorkPac Pty Ltd v Skene (Skene). In this matter, the Court held that Mr Skene, who was employed in circumstances similar to Mr Rossato, was not a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth) and the Enterprise Agreement which governed his employment, and was therefore entitled to the associated benefits.
Trial Judgment (Full Court of the Federal Court)
In Mr Rossato’s matter, the Full Court of the Federal Court rejected WorkPac’s argument that Mr Rossato’s entitlements should be reduced, as he was paid more as a casual than he would have been as a non-casual employee, upholding the precedent set in Skene.
High Court Judgment
The High Court of Australia went on to unanimously overturn the Full Court of the Federal Court’s decision.
The High Court’s judgment turned on whether a ‘firm advance commitment’ existed, unqualified by uncertainty, discontinuity, intermittency and other ‘indicia of irregularity.’ The existence of such a commitment was judged necessary for work to be other than casual under the Fair Work Act 2009 (Cth) as a matter of statutory interpretation, and the High Court’s test of casual employment was upheld in this matter.
The message emerging from the judgment is a simple one. A ’firm advance commitment’ must be enforceable and binding. An ‘amorphous, innominate hope or expectation’ of future employment is not sufficient to deprive casual work of that character. It is not the role of the courts to ’strain legal concepts and language’ to moderate a perceived unfairness.
The High Court rejected the original decision that work rosters formed part of the contractual suite of documents in any way, noting that the Full Court placed inordinate emphasis on Mr Rossato’s working hours being fixed by rosters. Taking the relevant provisions of the agreement by their plain and ordinary meaning, demonstrated that Mr Rossato was a casual employee. There was never any guarantee that upon completion of one assignment Mr Rossato would be engaged upon another. Indeed, the existence of such a guarantee would have contradicted the express terms governing their relationship.
Ultimately, the Court concluded that the Full Court had erred in finding that there existed a ‘firm advance commitment.’ To the extent that Mr Rossato’s work had the qualities of regular and systematic organisation, such qualities were entirely consistent with him being characterised as a casual worker. Whilst over the course of his relationship with WorkPac Mr Rossato may be said to have developed a reasonable expectation of continuing employment, this never constituted a ‘firm advance commitment’ beyond a particular assignment and as such, he was deemed a casual worker.
  HCA 23.
 (2018) 264 FCR 536.