WorkPac Pty Ltd v Rossato & Ors - [2021] HCATrans 84

[2021] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B73 of 2020

B e t w e e n -
WORKPAC PTY LTD ACN 111 076 012
Appellant
and
ROBERT ROSSATO
First Respondent
MINISTER FOR JOBS AND INDUSTRIAL RELATIONS
Second Respondent
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Third Respondent
MATTHEW PETERSEN
Fourth Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MAY 2021, AT 10.00 AM

(Continued from 12/5/21)

____________________

KIEFEL CJ: Yes, Mr Murdoch.

MR MURDOCH: Yes, thank you. Your Honour, if I could return at the outset to a question that you asked us towards the end of yesterday in terms of what is a maximum term employee.

KIEFEL CJ: Yes.

MR MURDOCH: We have checked the material and, on our reading, that term is not defined. However, by way of explanation, your Honour will recall that the terms and conditions document referred to “casual or maximum term employee” and, in our submission, the reference to maximum term employee is in distinction to a true fixed term employee, in the sense that a maximum term employee would be a person who is engaged for a period, say six months, but within the contract, there is the capacity to bring the employment to an end within the six months. So, it is a maximum term which can be brought to an end. As I said a moment ago, compared to a situation where an employee is employed for a six‑month period ‑ ‑ ‑

KIEFEL CJ: Which they are obliged to complete.

MR MURDOCH: Quite, yes. Now, of course, here, we do not contend that Mr Rossato was a maximum term employee because when one looks at each of the NOCEs, they do not have a definite or maximum period that is applied. But that does not mean, of course, on our argument that because he is not “maximum”, he is “casual”. That is because we say that what is important is not the label that is put on, for example, each of the notices of offer stating notice of offer of casual employment. What is important is what are the obligations that exist under the contract wherever its terms may be derived from.

Now, in that respect, I had begun yesterday afternoon to move from the terms and conditions document to step through the respective notices of offer documents. Could I ask in that respect for your Honours to please go to page 332 in the book of further material.

GORDON J: Is this the sixth agreement?

MR MURDOCH: No, the first agreement, your Honour.

KIEFEL CJ: I thought it was the fifth. Yes, I think it is the fifth.

MR MURDOCH: I am sorry, 232, I beg your pardon. What we wanted to draw your Honours’ attention to, in particular, in respect of this document, was that when one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 84
Decision Date: 13 May 2021

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Full Federal Court concerning the employment status of Mr. Rossato and other individuals engaged by WorkPac Pty Ltd. The central dispute revolved around whether these individuals were employees of WorkPac or independent contractors, and consequently, whether WorkPac was liable for entitlements such as annual leave, personal/carer's leave, and redundancy pay under the *Fair Work Act 2009* (Cth).

The High Court was required to determine whether the contractual terms and the reality of the working relationship between WorkPac and the individuals established an employer-employee relationship, notwithstanding the labels used in the contracts. Specifically, the Court had to consider the principles of statutory construction in relation to the definition of an employee under the *Fair Work Act* and the application of common law tests for employment. The Court also had to address the implications of the High Court's previous decision in *WorkPac Pty Ltd v Skene* for the present case.

The Court reasoned that the characterisation of an individual as an employee or independent contractor is a question of law, determined by the totality of the relationship, not merely by the labels or terms of the contract. Applying the established common law tests, which involve a multi-factorial approach considering control, integration, provision of tools, and the opportunity for profit or loss, the Court found that the individuals were employees of WorkPac. The Court emphasised that the substance of the relationship, including the degree of control exercised by WorkPac over the workers' activities, their integration into WorkPac's business, and the lack of genuine opportunity for profit or loss, pointed overwhelmingly towards an employment relationship. The Court affirmed that the *Fair Work Act* definition of employee is broad and should be interpreted in accordance with common law principles.

The High Court allowed the appeal in part, finding that WorkPac had engaged the individuals as employees and was therefore liable for certain statutory entitlements. However, the Court also held that WorkPac was entitled to offset payments already made to the employees in respect of their work.

Orders