Last week the High Court of Australia unanimously overturned the controversial decision of the Full Court of the Federal Court in the Workpac v Rossato decision, in which it found that Workpac’s former employee, Mr Rossato, was not a casual employee for the purposes of the Fair Work Act or relevant enterprise agreement.
The High Court held that a “casual employee” is an employee who has no firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work and provides no reciprocal commitment to the employer.
The meaning of ‘casual employee’ is now defined in Fair Work Act as a result of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amending Legislation) which came into effect in March 2021, the decision still has implications for businesses.
Employers should review their casual contracts of employment now to ensure that the conditions are consistent with the new definition of “casual employee” in the Fair Work Act and are drafted in a way that means that even if a claim of permanency is successful, employers can utilise the casual loading to offset any underpayments.
A copy of the full decision is available here and a summary here.
Contact the South Australian Business Chamber’s Business Advice Hotline today on (08) 8300 0000 if you need to have your employee Contracts reviewed by a the South Australian Business Chamber Consultant.
