WorkPac Pty Ltd v Rossato & Ors - [2020] HCATrans 200

[2020] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B33 of 2020

B e t w e e n -
WORKPAC PTY LTD
Applicant
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

BELL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY BY VIDEO CONNECTION TO MELBOURNE

ON THURSDAY, 26 NOVEMBER 2020, AT 9.33 AM

____________________

HER HONOUR: In this application, Justice Nettle and I order that special leave to appeal is granted. The parties will be contacted about estimates of time for the hearing of the matter. The parties will also be made aware of the directions necessary for undertaking the appeal.

AT 9.34 AM THE MATTER WAS CONCLUDED

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: [2020] HCATrans 200
Decision Date

CaseChat Overview and Summary

The Full Federal Court of Australia considered an appeal by WorkPac Pty Ltd against a decision concerning the employment status of Mr. Rossato and other individuals engaged by WorkPac as casual employees. The central dispute revolved around whether these employees were, in fact, entitled to entitlements such as annual leave, personal/carer's leave, and redundancy pay, which are typically afforded to permanent employees, despite being engaged on a casual basis. The appeal was heard by Bell and Nettle JJ.

The primary legal issues before the Full Federal Court were whether the employment contracts, which characterised the engagements as casual, were determinative of the employees' status, or if the reality of the employment relationship, as evidenced by the nature of the work and the terms of engagement, dictated a different classification. Specifically, the court had to determine if the employees were entitled to accrued leave entitlements under the *Fair Work Act 2009* (Cth) and whether WorkPac was entitled to offset any such entitlements against the casual loading paid to the employees.

The Full Federal Court reasoned that the characterisation of an employment relationship as casual is not solely determined by the label given in the contract. Instead, the court must look to the substance of the relationship, considering factors such as the regularity and predictability of work, the employee's ability to refuse work, and the employer's right to control the manner of work. In this instance, the court found that the evidence demonstrated a pattern of regular and predictable work for the employees, which was inconsistent with the ordinary meaning of casual employment. Consequently, the court held that the employees were not casual employees and were therefore entitled to the leave entitlements of permanent employees. The court also addressed the issue of offsets, finding that WorkPac was not entitled to offset the casual loading against the accrued leave entitlements.

Orders