WorkPac Pty Ltd v Rossato

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 20 May 2020
• Neutral Citation: [2020] FCAFC 84
• Date: 20 May 2020

FEDERAL COURT OF AUSTRALIA

WorkPac Pty Ltd v Rossato [2020] FCAFC 84

File number:	QUD 724 of 2018
Judges:	BROMBERG, WHITE AND WHEELAHAN JJ
Date of judgment:	20 May 2020
Catchwords:	INDUSTRIAL LAW – application by an employer for declarations that an employee could not claim the National Employment Standards entitlements to paid annual leave, personal/carer’s leave and compassionate leave because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (the FW Act), and could not claim the corresponding entitlements under the applicable enterprise agreement because he was a “Casual Field Team Member” (casual FTM) – consideration of the character of the employee’s employment – consideration of the expression “firm advance commitment” used in some authorities in relation to casual employment – employee not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement. ; RESTITUTION – employer paid employee at a flat hourly rate in accordance with contracts of employment, which the employer claimed included an identifiable casual loading – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to restitution of the casual loading as the employee was unjustly enriched – employer sought restitution on the grounds of mistake and failure of consideration – restitution not available. ; INDUSTRIAL LAW – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to bring into account amounts it paid to him as remuneration against the entitlements he claimed – whether the employer was entitled to have some portion of its payments of remuneration to the employee brought into account in discharge of its obligations to pay the entitlements he claimed – consideration of when an employer’s payments made under contract to an employee may operate to discharge its statutory obligations to the employee – employer’s payments of wages were not for the purpose of discharging statutory obligations to give the employee paid leave entitlements – consideration of reg 2.03A of the Fair Work Regulations 2009 (Cth) – employer not entitled to bring amounts into account.
Legislation:	Acts Interpretation Act 1901 (Cth), s 15AA Evidence Act 1995 (Cth) s 91 Fair Work Act 2009 (Cth) ss 12, 20, 23, 40, 41, 44, 45, 50, 55, 56, 61, 62, 63, 65, 67, 86, 87, 88, 90, 92‑94, 95, 96, 97, 99‑101, 102, 104, 105, 106, 111, 114, 116, 117, 123, 139, 185, 284, 285,287, 294, 295, 323, 382, 384, 534, 535, 536, 570, 789 Federal Court of Australia Act 1976 (Cth) s 20(1A) Industrial Relations Act 1988 (Cth) ss 170CA, 170CB, 170CC Industrial Relations Amendment Act (No. 2) 1994 (Cth) Industrial Relations Reform Act 1993 (Cth) Legislation Act 2003 (Cth) ss 15J, 39 Workplace Relations Act 1996 (Cth) ss 170CC(1), 173, 185, 227, 235 Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) Fair Work Regulations 2009 (Cth) regs 2.03A, 3.33, 3.46, 7.03 Industrial Relations Regulations (Cth) reg 30B Workplace Relations Regulations 1996 (Cth) s 30B Workplace Relations Regulations (Amendment), No 307 of Statutory Rules in 1996 Annual Holidays Act 1944 (NSW) Industrial Arbitration Act 1940 (NSW) s 92 Public Sector Management Act 1992 (Vic) Workers’ Compensation Act 1926‑1929 (NSW)
Cases cited:	ACE Insurance Ltd v Trifunovski [2013] FCAFC 3, (2013) 209 FCR 146 Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102; (2014) 285 FLR 121 Airservices Australia v Ferrier (1996) 185 CLR 483 Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Australian and New Zealand Banking Group Limited v Finance Sector Union of Australia [2001] FCA 1785; (2001) 111 IR 227 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 Autoclenz Ltd v Belcher [2011] 4 All ER 745 Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344 Barclays Bank Ltd v W.J. Simms Son & Cooke (Southern) Ltd [1980] QB 677 Bell v Lever Bros Ltd [1932] AC 161 Bernardino v Abbott [2004] NSWSC 430 BH Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Byrne v Australian Airlines Limited (1995) 185 CLR 410 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 Caltabiano v Electoral Commission of Queensland (No 1) [2010] 1 Qd R 100 Canavan Building Pty Ltd [2014] FWCFB 3202 Carmichael v National Power Plc [1999] 1 WLR 2042 Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCAFC 100; (2015) 231 FCR 298 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Cetin v Ripon Pty Ltd t/as Parkview Hotel [2003] AIRC 1195 (PR938639) Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 Community and Public Sector Union v State of Victoria [2000] FCA 759; (2000) 99 IR 217 Concut Pty Ltd v Worrell (2000) 176 ALR 693 Connelly v Wells (1994) 55 IR 73 Construction, Forestry, Mining and Energy Union v CSRP Pty Ltd [2017] FWCFB 2101 Construction, Forestry, Mining and Energy Union v Jeld‑Wen Glass Australia Pty Ltd [2012] FCA 45; (2012) 213 FCR 549 Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca” [1897] AC 286 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49; [2007] 1 AC 558 Discount Lounge Centre v Wakefield [2007] SAIRC 15 Doyle v Sydney Steel Company Ltd (1936) 56 CLR 545 Ecob v Poletti (1989) 31 AILR 308 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034; (2018) 279 IR 162 Fair...