Workplace Employment Contracts – casual or permanent? Primacy given to the written, agreed employment contract

In WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021) the High Court allowed the appeal from the Full Court of the Federal Court of Australia (see Australis Chambers Digital News - 26 August 2018).

It declared that Mr Rossato was a casual employee for the purposes of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) in respect of each of the six assignments with WorkPac between 2014 and 2018 and was a "Casual Field Team Member" for the purposes of the Enterprise Agreement.

The plurality (Kiefel CJ, Keane, Gordon, Eldelman, Steward and Gleeson JJ) held that:

Ø the contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment;

Ø the provisions expressly provided that Mr Rossato's employment was on an "assignment-by-assignment basis", with Mr Rossato entitled to accept or reject an offer of an assignment and WorkPac under no obligation to offer any further assignments;

Ø on their plain and ordinary meaning, the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed;

Ø the analysis in Hollis v Vabu (concerning the question whether a person was an employee or independent contractor of another) was held to provide “no assistance, even by analogy, in the resolution of a question as to the character of an employment relationship, where there is no reason to doubt that the terms of that relationship are committed comprehensively to the written agreements by which the parties have agreed to be bound”;

Ø whilst the performance of Mr Rossato's obligations was organised in accordance with Glencore's rosters and thereby exhibited features of regularity and consistency, this did not establish a commitment between the parties to an ongoing working relationship after each assignment was completed; and

Ø “The search for the existence or otherwise of a "firm advance commitment" must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement.”

Gageler J concurred with the plurality that the terms of each contract of employment contained nothing to oblige WorkPac to continue each contract of employment beyond completion of the assignment to which each contract related. His Honour held that that feature of the relationship of the employment relationship was enough in the circumstances to negative the existence of any firm advance commitment on the part of WorkPac to the indefinite continuation of Mr Rossato's employment.

No order as to costs was sought.

As the plurality noted, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery Act) 2021 (Cth), which came into effect in March 2021, inserted a definition of "casual employee" into the Act and provided also that an award of compensation for permanent employee entitlements payable to an employee mistakenly treated as a casual must be reduced by the amount of any identifiable casual loading paid to the employee. These amendments did not apply to employees like Mr Rossato (in respect of whom a court has made a binding decision before commencement that the employee is not a casual employee) but do apply retrospectively to other employees, subject only to limited exceptions. The amendments have the stated intention of introducing a statutory definition of casual employment as well as "a statutory offset mechanism so that employers will not have to pay twice for the same entitlements".