High Court rules on who is a Casual employee
August 2021 | Article | Peter Wilson
On 4 August 2021 the High Court of Australia issued a decision in Workpac P/L v Rossato (2021) HCA 23 (Decision) on casual employment. The Decision overturned previous Federal Court decisions that had decided that certain mineworkers working fulltime hours on rosters were not casuals and so had paid leave and other entitlements of ongoing employees. The Decision reinstates the orthodox legal view that when interpreting a written employment contract, courts will give primacy to the terms of the contract and not the conduct of the parties during the employment (after the contract is signed).
The Decision held that the key characteristic of casual employment is that there is no firm advance commitment to continuing work and this is to be determined by the terms of the written employment contract (where the contract is wholly in writing). The Decision also recognised that casual employment can last for long periods with a person working regularly and systematically.
The impact of the Decision has been altered by the March 2021 changes to the Fair Work Act (Act), that created a new statutory definition of casual employee and a new process for casual employees to elect to be converted to ongoing employment (see April 21 article). Employers (with 15+ employees) should note that they need to decide which of their casual employees will be offered conversion (to fulltime or part time ongoing employment) and which will be notified that the employer is not making a conversion offer (i.e. because the employer has reasonable grounds to not make such an offer), as these offers/notifications need to be made before 27 September 2021.
As a result of the Decision and the recent legislative changes, all employers should review their engagement processes and employment contracts for casual employees to ensure legal compliance.
If you require assistance in ensuring that you are compliant with these new casual employment rules, please contact Peter Wilson at firstname.lastname@example.org.