Federal Court Decision of WorkPac v Rossato Affirms Skene Decision

On 20 May 2020, the Full Federal Court handed down the long-awaited decision in WorkPac Pty Ltd v Rossato, a case which sought to resolve the casual employee ‘double dipping’ decision of Skene v WorkPac.

In a unanimous decision of the three judges, the full court found that Mr Rossato was ‘other than a casual’ under the Fair Work Act and, therefore, entitled to annual leave, personal leave, compassionate leave and public holiday payments for the three and a half years of continuous employment. In effect, this decision affirmed the decision of Skene v WorkPac of 2018.

The court also rejected all arguments that WorkPac could ‘set off’ the accrued entitlement on the basis that Mr Rossato had already been paid the leave via a casual loading.

Whilst concerning, especially at this time, it was heartening to have it affirmed that ‘continuity of service is not a defining characteristic of non-casual employment’, which means that continuous employment, of itself, for an extended period of time does not mean a casual employee is entitled to leave under the NES.

Furthermore, it is important that there were a number of unique facts in this decision, including the construction of the employment contracts. In addition the underpinning award to the enterprise agreement was an award that did not provide for casual employment. That said, it is still a concerning decision.

A copy of the decision is available here

Our peak body, the RCSA, have been lobbying the government hard for many months to amend the Fair Work Act and the government have said they wanted to wait for this decision before acting. Now the government will be forced to act.

Australia’s Minister for Industrial Relations, Christian Porter, promised to consider legislation following the decision.

“Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options,” Porter said.

He noted the possibility of an appeal, and said the government would consider intervening in the case.

Article Source: RCSA