WorkPac Pty Ltd v Rossato & Ors - [2021] HCATrans 83

[2021] HCATrans 083

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 WEDNESDAY, 12 MAY 2021, AT 10.05 AM

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR I.M. NEIL, SC, MR D.W.M. CHIN, SC and MR C. PARKIN, for the appellant. (instructed by Ashurst)

MR C.J. MURDOCH, QC: May it please the Court, I appear with my learned friend, MR C.G.C. CURTIS, for the first respondent. (instructed by Franklin Athanasellis Cullen)

MR J.D. McKENNA, QC: May it please the Court, I appear with my learned friend, MS B.J. O’BRIEN, for the second respondent. (instructed by MinterEllison)

MR S. CRAWSHAW, SC: If the Court pleases, I appear with my learned friend, MR R.E. REED, for the third respondent. (instructed by Slater and Gordon Lawyers)

MS K.P. HANSCOMBE, QC: Your Honours, in these proceedings I appear with MR J. FETTER for the fourth respondent. (instructed by Adero Law)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please your Honours. At the heart of the case and, as your Honours have seen from our outline, the issue with which we start, is a question of characterisation of the nature of the undoubted employment of Mr Rossato by our client.

KIEFEL CJ: Mr Walker, could I interrupt you at an early point just to enquire, since the grant of special leave there have been statutory amendments.

MR WALKER: Yes.

KIEFEL CJ: The relevance and utility of this, the orders that might be made in these proceedings is then somewhat more limited than was the case at the grant of special leave.

MR WALKER: The matter has changed but perhaps more by way of a shift than a limit. As your Honours are aware, the amendment under the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 in question includes what I will call a definition of casual employment but it is in terms which bears very close relation on comparison with the arguments of principle that we advanced below and would seek to advance here. So that the consideration by this Court of those arguments will not be of historical irrelevance to a regime in which that definition operates, to the contrary. So, it has shifted it rather than confined it is the way we put it.

GORDON J: Is it the position that that definition applies retrospectively, except to those whose employees have had their rights determined ‑ ‑ ‑

MR WALKER: Such as this case,…

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 83
Decision Date

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