WorkPac Pty Ltd v Rossato

WorkPac Pty Ltd sought a declaration that Mr Rossato, an employee, was not entitled to certain leave entitlements as a casual employee under the Fair Work Act 2009 (Cth) (FW Act) and an enterprise agreement. The court examined the character of Mr Rossato’s employment to determine if he was a casual employee under the FW Act and a “Casual Field Team Member” under the enterprise agreement. The court found that Mr Rossato was not a casual employee or a casual FTM. Therefore, he was entitled to paid annual leave, personal/carer’s leave, compassionate leave, and payments for public holidays under the FW Act and the enterprise agreement. The court also ruled that WorkPac could not claim restitution of a casual loading it paid to Mr Rossato or set off any part of the remuneration it paid against Mr Rossato’s entitlements.

The court considered whether WorkPac could claim restitution of the casual loading it paid Mr Rossato and whether it could set off the remuneration it paid against Mr Rossato’s entitlements. The court found that WorkPac was not entitled to restitution as the employee was not unjustly enriched. The court also found that WorkPac’s payments of remuneration to Mr Rossato were not for the purpose of discharging its statutory obligations to him, and therefore, WorkPac was not entitled to set off any part of the remuneration it paid against Mr Rossato’s entitlements.

The court concluded that Mr Rossato was not a casual employee or a casual FTM under the FW Act and the enterprise agreement, and therefore, he was entitled to paid annual leave, personal/carer’s leave, compassionate leave, and payments for public holidays. WorkPac was not entitled to restitution of the casual loading it paid to Mr Rossato or to set off any part of the remuneration it paid against Mr Rossato’s entitlements. The court ordered the parties to confer to agree on the terms of the declarations and orders appropriate to give effect to the court’s judgment. If the parties could not agree, the court would determine the terms of the declarations and orders and any application for costs on the papers.