Workpac Pty Ltd v Rossato

Case [2021] HCA 23

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

WORKPAC PTY LTD  APPELLANT

AND

ROBERT ROSSATO & ORS  RESPONDENTS

WorkPac Pty Ltd v Rossato

[2021] HCA 23

Date of Hearing: 12 & 13 May 2021
Date of Judgment: 4 August 2021

B73/2020

ORDER

1.Appeal allowed.

2.Set aside the orders made by the Full Court of the Federal Court of Australia on 29 May 2020 and, in their place, declare that:

(a)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 Pty Ltd between 28 July 2014 and 9 April 2018; and

(b)Mr Rossato was a "Casual Field Team Member" for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with I M Neil SC, D W M Chin SC and C Parkin for the appellant (instructed by Ashurst)

C J Murdoch QC with C G C Curtis for the first respondent (instructed by Franklin Athanasellis Cullen)

J D McKenna QC with B J O'Brien for the second respondent (instructed by MinterEllison)

S Crawshaw SC with R E Reed for the third respondent (instructed by Slater and Gordon Lawyers)

K P Hanscombe QC with J Fetter for the fourth respondent (instructed by Adero Law)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

WorkPac Pty Ltd v Rossato

Industrial law (Cth) – Contract of employment – Nature of casual employment – Where first respondent employed by appellant labour-hire company under series of six employment contracts or "assignments" – Where first respondent treated as casual employee – Where first respondent not paid entitlements owed by employers to non‑casual employees – Where first respondent claimed to have been other than a casual employee – Where first respondent's work pattern followed established shift structure fixed long in advance by roster – Where employment contract provided that employment was on "assignment-by-assignment basis" – Where employment contract provided that appellant under no obligation to offer first respondent further assignments – Whether there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work – Whether first respondent employed as casual employee.

Words and phrases – "annual leave", "assignment-by-assignment basis", "binding contractual terms", "casual employee", "compassionate leave", "employment contract wholly in writing", "enterprise agreement", "firm advance commitment", "label", "mere expectation of continuing employment", "National Employment Standards", "nature of the employment relationship", "payment for public holidays", "personal/carer's leave", "post-contractual conduct", "regular and systematic basis", "roster".

Fair Work Act 2009 (Cth), Pt 2-2.

  1. KIEFEL CJ, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ.   The appellant ("WorkPac") is a labour-hire company whose business includes the provision of the services of its employees to firms engaged in the mining of black…

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AGLC
WorkPac Pty Ltd v Rossato [2021] HCA 23
Case
[2021] HCA 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by WorkPac Pty Ltd against a decision concerning the employment status of Mr Rossato. The dispute centred on whether Mr Rossato, engaged by WorkPac under a series of contracts for specific assignments, was a casual employee or another form of employee entitled to statutory entitlements such as annual leave and personal/carer's leave. Mr Rossato had been paid a casual loading but argued that the nature of his work, which followed a fixed roster and involved a regular pattern of shifts, meant he was not genuinely a casual employee.

The central legal issue before the High Court was to determine the meaning of "casual employee" under the Fair Work Act 2009 (Cth) as it stood at the time of the dispute, in the absence of a statutory definition. Specifically, the Court had to ascertain whether there was a "firm advance commitment" to an ongoing working relationship between WorkPac and Mr Rossato, or a commitment to a particular duration of employment or specific working days and hours, which would indicate he was not a casual employee. The Court also considered whether the terms of the employment contracts and the applicable enterprise agreement categorised Mr Rossato as a casual employee.

The High Court allowed the appeal, reasoning that the express terms of the contracts between WorkPac and Mr Rossato were inconsistent with a mutual commitment to an ongoing working relationship after the completion of each assignment. While Mr Rossato's work exhibited regularity and consistency due to the employer's rosters, this did not establish a commitment to an ongoing relationship between the parties beyond each individual assignment. The Court concluded that, based on the contractual arrangements, Mr Rossato was engaged as a casual employee for each assignment. Consequently, the High Court set aside the orders of the Federal Court and declared that Mr Rossato was a casual employee for the purposes of the Fair Work Act and a "Casual Field Team Member" under the relevant enterprise agreement.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by the Full Court of the Federal Court of Australia on 29 May 2020 and, in their place, declare that:

(a) 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 Pty Ltd between 28 July 2014 and 9 April 2018; and

(b) Mr Rossato was a "Casual Field Team Member" for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ GAGELER J
In these observations of Dixon J can be seen the basis for the view that has come to prevail.Conclusion 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. The express terms of the relationship between WorkPac and Mr Rossato were distinctly inconsistent with any such commitment. Mr Rossato's entitlement to remuneration was agreed on that basis. That the performance of Mr Rossato's obligations was organised in accordance with Glencore's rosters and thereby exhibited features of regularity and consistency did not establish a commitment between the parties to an ongoing working relationship after each assignment was completed. In carrying out each assignment, Mr Rossato worked as a casual employee.Orders The appeal should be allowed and the orders of the Full Court set aside. In their place, it should be declared that Mr Rossato was a casual employee for the purposes of ss 86, 95 and 106 of the Act in respect of each of the six assignments with WorkPac between 28 July 2014 and 9 April 2018. It should also be declared that Mr Rossato was a "Casual Field Team Member" for the purposes of the Enterprise Agreement. No order as to costs was sought. The central question in this appeal is as to the meaning of undefined references to "casual employee" in the Fair Work Act 2009 (Cth) ("the Act"), which defines "employee" by reference to the ordinary meaning of that term[123]. The question was of national importance at the time of the grant of special leave to appeal.[123]Section 12 of the Act (definitions of "employee" and "national system employee") and ss 13-15 of the Act. The importance of the question diminished with the subsequent insertion into the Act of a definition of "casual employee"[124]. The definition operates comprehensively for the future. The definition also operates for the past subject to the narrowest of exceptions[125]. A relevant exception is in relation to a person previously determined by a court not to be a casual employee[126]. [124]Section 15A of the Act as inserted by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth).[125]Clause 46 of Pt 10 of Sch 1 to the Act as inserted by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act.[126]Clause 46(2)(a) of Pt 10 of Sch 1 to the Act. This Court is restricted by the nature of the appeal to determining the meaning and application of the Act as the Act stood at the time of the decision under appeal[127]. That restricted temporal focus does not, however, require it to ignore the circumstance that the new definition has stripped the decision under appeal[128] and the earlier decision on which the decision under appeal was based[129] of precedential effect and that its own decision on the appeal will have significance for few other than the parties. The legislatively confined consequences of the appeal provide justification and incentive for determining the appeal by a process of reasoning that is no more expansive than is strictly necessary to determine the rights of the parties that are in issue. That is the approach I prefer to adopt.[127]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106-111; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 556 [31].[128]WorkPac Pty Ltd v Rossato (2020) 278 FCR 179.[129]WorkPac Pty Ltd v Skene (2018) 264 FCR 536.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ, GAGELER J

The Schedule 2 referred to in each of the first three NOCEs contained a breakdown of the "casual loading" in the following terms:"Schedule 2 – Configuration of Casual LoadingYour ordinary rate of pay is your hourly rate less your performance incentive bonus where applicable. Refer to the appropriate Agreement contained in Schedule 1[[99]] to determine your casual loading. Where your casual loading is 25%, it is made up of the following components:a.11% of your loading is paid in lieu of Annual Leave and Leave Loading entitlements;b.5% of your loading is paid in lieu of Personal Leave entitlement;c.4% of your loading is paid in lieu of Notice of Termination requirements;d.2.5% of your loading is paid in recognition of the itinerant nature of casual work;e.2.5% of your loading is paid in lieu of Redundancy entitlements.If your casual loading is less than 25% as prescribed in your Agreement, the above breakdown applies to your casual loading on a pro rata basis."[99]Schedule 1 was titled "Where do I find my Agreement?" and listed 21 workplace or enterprise agreements, including the Enterprise Agreement applicable to Mr Rossato.The Enterprise Agreement The provisions of the Enterprise Agreement, insofar as they regulated Mr Rossato's entitlements to leave, have been set out above. The Enterprise Agreement also contained terms which regulated Mr Rossato's employment and which are relevant to the assessment of whether there existed a firm advance commitment to ongoing work. Pursuant to cl 6 of the Enterprise Agreement, all FTMs were required to perform work within their skill, competence and training as required by WorkPac[100] and follow all reasonable and lawful directions[101]. Refusal to comply with any reasonable and lawful direction could result in disciplinary action, including termination[102]. All new FTMs were engaged on a six-month "qualifying period", after which their employment status would be confirmed[103].[100]Enterprise Agreement, cl 6.3.1.[101]Enterprise Agreement, cl 6.2.1.[102]Enterprise Agreement, cl 6.2.2.[103]Enterprise Agreement, cl 6.1. Clause 6.4 was entitled "Status of Employment". Clause 6.4.7 provided that FTMs would, at the time of their engagement, be informed by WorkPac "of the status and terms of their engagement". As foreshadowed above, cl 6.4.1 purported to categorise FTMs in the following way:"FTMs under this Agreement will be employed in one or more of the following categories:(a)full-time FTMs; or(b)part-time FTMs; or(c)casual FTMs; or(d)limited term or assignment FTMs; or(e) FTMs employed for a specific project/site or workplace related task." Clauses 6.4.2 to 6.4.4 further categorised FTMs into "base rate FTMs" and "flat rate FTMs" depending on whether they were engaged on the basis of, and paid, a base rate of pay or a flat rate of pay. It was not in dispute that Mr Rossato was a "flat rate FTM"; the only question was whether his employment was casual or otherwise. Clauses 6.4.5 and 6.4.6 contained further terms relating to "casual FTMs", including terms relating to "casual loading":"6.4.5Casual FTMs will be for a minimum of four (4) hours:(a)A person engaged as a base rate casual, as defined in clause 9.1.1, will be paid a casual loading of 25% on the rates prescribed herein. The casual loading is in lieu of all paid leave entitlements (with the exception of long service leave).(b)A person engaged as a flat rate casual, as defined in clause 9.1.1, will not be paid an additional amount as the casual loading has been incorporated into the flat rate of pay.6.4.6As your casual loading is 25%, it is made up of the following components:(a)11% of your loading is paid in lieu of Annual Leave and Leave Loading entitlements;(b)5% of your loading is paid in lieu of Personal Leave entitlement;(c)4% of your loading is paid in lieu of Notice of Termination requirements;(d)2.5% of your loading is paid in recognition of the itinerant nature of casual work;(e)2.5% of your loading is paid in lieu of Redundancy entitlements."