Industry welcomes High Court overturning controversial WorkPac v Rossato casual employment decision

“Today, the High Court unanimously overturned the controversial decision of the Full Court of the Federal Court in the Workpac v Rossato case and in doing so identified that the reasoning in the Federal Court’s earlier decision in WorkPac v Skene was erroneous. These Federal Court decisions created $39 billion in cost risks for employers from potential ‘double dipping’ claims for permanent employment entitlements by employees engaged and paid as casuals. The decisions were also a major risk to the work patterns of the many Australian workers who prefer to work on a casual basis. These risks were comprehensively addressed through changes to the Fair Work Act that came into operation in March this year but the decision of the High Court is still very important,” Innes Willox, Chief Executive of the national employer association Ai Group said today.

“The High Court has determined that at all times during his employment Mr Rossato was a casual employee for the purposes of the Fair Work Act and the enterprise agreement under which he was employed by WorkPac.

“The High Court’s decision clarifies the common law meaning of a ‘casual employee’, which aligns closely with the definition of a ‘casual employee’ that was inserted in the Fair Work Act in March.

“The decision also clarifies that where an employer and an employee ‘have committed the terms of the employment relationship to a written contract and thereafter adhered to those terms… is to those terms that one must look to determine the character of the employment relationship’. In this case, Mr Rosatto entered into a contract of employment as a casual employee and throughout his employment he was paid as a casual.

“Given the High Court’s decisive unanimous judgment, it is time for all political parties to move on and to support the sensible reforms that have already been legislated for, rather than proposing changes to the definition of a ‘casual employee’ in the Fair Work Act. It also time for plaintiff law firms, supported by litigation funders, to withdraw the class action claims against employers over casual employment matters. The past few years have been exceptionally disruptive for employers and the focus now needs to be on encouraging employment and investment,” said Mr Willox.

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