WorkPac Pty Ltd v Rossato

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Gordon,Edelman,Steward,Gleeson JJ,Gageler J
• Judgment Date: 04 August 2021
• Neutral Citation: [2021] HCA 23
• Docket Number: B73/2020

WorkPac Pty Ltd

Appellant

and

Robert Rossato & Ors

Respondents

[2021] HCA 23

JUDGE: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward And Gleeson JJ

B73/2020

HIGH COURT OF AUSTRALIA

Industrial law (Cth) – Contract of employment – Nature of casual employment – Where first respondent employed by appellant labour-hire company under series of six employment contracts or “assignments” – Where first respondent treated as casual employee – Where first respondent not paid entitlements owed by employers to non-casual employees – Where first respondent claimed to have been other than a casual employee – Where first respondent's work pattern followed established shift structure fixed long in advance by roster – Where employment contract provided that employment was on “assignment-by-assignment basis” – Where employment contract provided that appellant under no obligation to offer first respondent further assignments – Whether there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work – Whether first respondent employed as casual employee.

Words and phrases – “annual leave”, “assignment-by-assignment basis”, “binding contractual terms”, “casual employee”, “compassionate leave”, “employment contract wholly in writing”, “enterprise agreement”, “firm advance commitment”, “label”, “mere expectation of continuing employment”, “National Employment Standards”, “nature of the employment relationship”, “payment for public holidays”, “personal/carer's leave”, “post-contractual conduct”, “regular and systematic basis”, “roster”.

Fair Work Act 2009 (Cth), Pt 2–2.

Representation

B W Walker SC with I M Neil SC, D W M Chin SC and C Parkin for the appellant (instructed by Ashurst)

C J Murdoch QC with C G C Curtis for the first respondent (instructed by Franklin Athanasellis Cullen)

J D McKenna QC with B J O'Brien for the second respondent (instructed by MinterEllison)

S Crawshaw SC with R E Reed for the third respondent (instructed by Slater and Gordon Lawyers)

K P Hanscombe QC with J Fetter for the fourth respondent (instructed by Adero Law)

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders made by the Full Court of the Federal Court of Australia on 29 May 2020 and, in their place, declare that:

  • (a) Mr Rossato was a casual employee for the purposes of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) in respect of each of the six assignments with WorkPac Pty Ltd between 28 July 2014 and 9 April 2018; and

  • (b) Mr Rossato was a “Casual Field Team Member” for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012.

1 Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ. The appellant (“WorkPac”) is a labour-hire company whose business includes the provision of the services of its employees to firms engaged in the mining of black coal. Among WorkPac's customers is Glencore Australia Pty Ltd and its related entities (“Glencore”), which operate the Collinsville and Newlands mines in Queensland. At all relevant times, Glencore's workforce comprised both its own employees and workers sourced through labour-hire companies such as WorkPac 1.

2 The first respondent (“Mr Rossato”) was an experienced production worker in the open-cut black coal mining industry. He was employed by WorkPac between 28 July 2014 and 9 April 2018, when he retired. During that time, WorkPac provided his services to Glencore at one or other of the Collinsville and Newlands mines 2. At all relevant times, WorkPac treated Mr Rossato as a casual employee 3.

3 On 16 August 2018, the Full Court of the Federal Court of Australia delivered judgment in WorkPac Pty Ltd v Skene 4 (“ Skene”). The Full Court held that Mr Skene, who was employed by WorkPac in circumstances similar to those of Mr Rossato and who was likewise treated by WorkPac as a casual employee, was not a casual employee for the purposes of s 86 of the Fair Work Act 2009 (Cth) (“the Act”) and the enterprise agreement applicable to Mr Skene 5.

4 On 2 October 2018, in reliance on the decision in Skene, Mr Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment. These entitlements were said to be due under the Act and the

WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (“the Enterprise Agreement”), which governed Mr Rossato's employment 6

5 WorkPac denied Mr Rossato's claims, and promptly filed an originating application in the Federal Court of Australia seeking declarations that throughout his employment Mr Rossato had been a casual employee for the purposes of the Act and the Enterprise Agreement. WorkPac also sought declarations that, by reason of that status, Mr Rossato was not entitled to paid annual, personal/carer's or compassionate leave or to payment for public holidays; and that he had been paid at a rate which incorporated a 25 per cent casual loading in lieu of those entitlements. In the alternative, if Mr Rossato were found to have been other than a casual employee, WorkPac sought declarations that it was entitled to set off, against the entitlements claimed by Mr Rossato, payments it had made to Mr Rossato in compensation for, or in lieu of, those entitlements; or that it was entitled to restitution in respect of the amounts it had paid to Mr Rossato in excess of his entitlement to remuneration as a permanent employee 7.

6 On 21 December 2018, Allsop CJ directed, pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth), that the matter be heard by a Full Court. Allsop CJ also granted leave to intervene in the proceedings to the second respondent (“the Minister”) and the third respondent (“the CFMMEU”) 8. On 26 March 2019, Bromberg J granted leave to intervene in the proceedings to the fourth respondent (“Mr Petersen”), who is the applicant in a class action brought against WorkPac on behalf of employees who are said to have been employed in similar circumstances to Mr Skene 9.

7 WorkPac, as the moving party, sought only declaratory relief. Mr Rossato did not cross-claim for payment of his entitlements, and the Full Court was not asked to quantify those entitlements. Instead, WorkPac agreed that if Mr Rossato

were successful, it would pay him amounts which had been agreed between the parties. WorkPac also agreed to pay Mr Rossato's costs 10

8 The Full Court of the Federal Court of Australia (Bromberg, White and Wheelahan JJ) concluded that Mr Rossato was not a casual employee for the purposes of the Act and the Enterprise Agreement. The Full Court made declarations that Mr Rossato was entitled to the payments he claimed. The Full Court rejected WorkPac's set off and restitution claims, holding that Mr Rossato's entitlements were not to be reduced by taking into account the amounts paid to Mr Rossato in excess of his entitlements to remuneration as a non-casual employee 11.

9 WorkPac now appeals to this Court, arguing that the Full Court ought to have held that Mr Rossato was a casual employee for the purposes of the Act and the Enterprise Agreement. Alternatively, WorkPac argues that the Full Court erroneously rejected its claims in relation to set off and restitution. For the reasons that follow, WorkPac's appeal should be allowed on the basis that Mr Rossato was a casual employee of WorkPac. On that footing, it is unnecessary to consider WorkPac's alternative ground of appeal.

10 Before moving to a discussion of matters germane to the present appeal, it may be noted that the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Cth), which came into effect after the filing of this appeal but before the appeal was heard, inserted a definition of “casual employee” into the Act 12. It also provided that an award of compensation for permanent employee entitlements payable to an employee mistakenly treated as a casual must be reduced by the amount of any identifiable casual loading paid to the employee 13. These amendments do not apply to employees like Mr Rossato in respect of whom a court has made a binding decision before commencement that the employee is

not a casual employee 14. However, the amendments apply retrospectively to other employees, subject only to limited exceptions 15. The amendments had the stated intention of introducing a statutory definition of casual employment that “incorporates key aspects of the common law as expressed in … Skene and Rossato”, as well as “a statutory offset mechanism so that employers will not have to pay twice for the same entitlements” 16. WorkPac did not seek to argue that the amendments provided any support for its arguments in relation to the proper construction of the term “casual employee” in the Act 17

Mr Rossato's employment with WorkPac

11 It is useful at the outset to summarise in broad terms the history of Mr Rossato's employment with WorkPac to assist an understanding of the reasons of the Full Court and the arguments agitated by the parties in this Court.

12 Mr Rossato first applied for employment with WorkPac on 21 December 2013, using an online registration form. Two days later, he attended WorkPac's office in Mackay, where he spoke to a recruitment coordinator and signed a single-page document entitled “Casual or Maximum Term Employee Terms & Conditions of Employment – Employee Declaration”. By signing that document, Mr Rossato acknowledged that he had read, understood and agreed to the content

of a document entitled “Casual or Maximum Term Employee – Terms and Conditions of Employment” (“the General Conditions”) 18

13 Mr Rossato commenced working with WorkPac on 28 July 2014 as a product operator at Glencore's Collinsville mine. He...