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High Court settles period of casual employment confusion

Updated: Sep 1

Over the past couple of years, the definition of casual employee has become anything but ‘regular and systematic’.


However, the recent decision of the High Court in WorkPac Pty Ltd v Rossato has cleared up confusion regarding what makes a casual employee truly ‘casual’.


This decision also comes on the heels of amendments to the Fair Work Act 2009 (Cth) (the FW Act) regarding casual employees. For more information about these changes, please see our website article Changes to casual employment - What you need to know.


In this recent case, the High Court overturned a previous decision to find that an employee who was rostered on a regular and systematic basis across several fixed-term assignments was, in fact, a genuine casual employee.


In making its decision, the High Court noted:

  • a casual employee was an employee who had "firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work" consistent with new definition the FW Act;

  • whether or not an employee has a “firm advance commitment” to ongoing work needs to be considered in the context of the terms of the employment contract. The “mere expectation of continuing employment” without a contractual basis is not sufficient to distinguish a permanent employee from a casual employee; and,

  • paying the employee a casual loading in lieu of leave entitlements was a “compelling indication” that the employer and the employee intended to engage the employee on a casual basis.

What does this mean for me?


Employers

It is important for employers to review their template casual employment contracts to ensure that it is clear that the engagement of the employee is on a casual basis only, without a “firm advance commitment” from the employer to ongoing work.


In addition to defining the employee as a casual, employers should also include terms in the contract that support this engagement including payment of the casual loading in lieu of entitlements, notice periods for termination and whether the engagement is for a fixed term only (if applicable).


Employees


Employees should review their employment contract to confirm whether it is clear (or not) that they are engaged as a casual employee and remunerated accordingly.


If you require advice about your obligations as an employer or are seeking clarification about your entitlements as an employee, please do not hesitate to contact a member of our employment law team for advice.


John Sneddon, Partner (07) 3307 4504 jsneddon@shandtaylor.com.au


Ruby Nielsen, Associate (07) 3307 4551 rnielsen@shandtaylor.com.au


Charlie Hodgetts, Solicitor (07) 3307 4513 chodgetts@shandtaylor.com.au


Emma Lewis, Solicitor (07) 3307 4546 elewis@shandtaylor.com.au

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