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Issue #1917      June 1, 2020



Two weeks ago, a full bench of the Federal Court ruled on the significant WorkPac Pty Ltd v Rossato case with far-reaching implications for workplace relations. The ruling was a huge win for workers.

In short, the important aspect of the case centred around the definition of “casual” work. According to the summary provided by the Federal Court, the applicant, WorkPac, submitted to the court that Mr Rossato (the respondent) couldn’t “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 Fair Work Act 2009.” The reason behind their claim was that there was no “firm advance commitment as to the duration of the employee’s employment or the days/ hours the employee will work.” However, the court disagreed with WorkPac’s reasoning and found that “Mr Rossato was not a casual employee for the purposes of the FW Act and for the purposes of the 2012 EA [Enterprise Agreement – Ed]” and “found that the parties had agreed on employment of indefinite duration which was stable, regular and predictable such that the postulated firm advance commitment was evident in each of his six contracts.”

According to the Australian Financial Review, “Justices Mordy Bromberg, Richard White and Michael Wheelahan, unanimously held that Mr Rossato was not a casual based on his pattern of work, ‘even taking WorkPac’s case at its highest.’ ”

Many will argue that the ruling is unfair as casuals receive up to twenty-five per cent loading in place of entitlements. This statement would be true if casuals were working within a casual capacity. However, they aren’t.

Understanding the ruling being based on the pattern of work is crucial in understanding how employers rort employees. According to the chief executive of the Australian Industry Group (AIG), Innes Willox, casuals make up twenty per cent of our workforce. A closer look at that number shows starker statistics. According to AIG’s own report, Casual work and part-time work in Australia in 2018, the top three industries with casualisation are accommodation and food services (55.1 per cent), arts and recreation services (34.6 per cent), and retail trade (34.3 per cent). These industries offer some of the lowest wages in our country. According to the ABS’ report that same year, in major occupation groups “sales workers had the lowest average weekly total cash earnings ($735.90),” when it came to industry “the lowest average weekly total cash earnings was for employees in the Accommodation and food services industry ($616.20).” This information, including how many hours casuals work, was omitted from AIG’s report.

With these kinds of statistics, we know businesses aren’t hiring casuals in a causal capacity. Many work part-time or full-time hours and have worked at a business for prolonged periods. This is also evident in the aftermath of the COVID-19 restrictions where, in a matter of days, massive layoffs occurred, with zero repercussions for the businesses in question.

Employers are able to save millions by regulating their workforce with casual positions. They don’t have to pay paid annual leave, paid personal/carer’s leave and paid compassionate leave. They also have a flexible workforce which means they can fire and hire at will. This is particularly handy if someone raises an issue with the conditions of a workplace, or if someone attempts to unionise a workplace for better pay and conditions. Casualisation places the power of workplace relations squarely in the hands of the employer, leaving employees in a precarious situation.

The ruling upheld a precedent set by the court in the WorkPac Pty Ltd v Skene and should be seen as a bright spot in what has been a terrible time for workers around this country. Members of the Morrison government have already voiced their disapproval of the ruling. Industrial Relations Minister Christian Porter even opined about government intervention: “There is of course potential for an appeal in the matter and if that were to occur, the government would closely consider the merits of intervening.”

This is not surprising given that this is a government that attempted to ram through parliament its Ensuring Integrity bill. We must watch closely and be militant. We cannot let the government and its backers, big business, destroy our workers’ rights!


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