High Court Ruling on Casual Employees

The High Court has provided welcomed clarity on the definition of “casual employees” and their entitlements under the Fair Works Act 2009 (Cth). *The name of the case is Workpac Pty Ltd v Rossato & Ors [2021] HCA 23.

POSITION BEFORE THE HIGH COURT RULING

A Federal Court decision in 2020 found that a “casual” worker who undertook regular and predictable shifts with advanced commitments was not “casual”, regardless of how described in an employment contract. Consequently, employers would have to pay annual, sick and carer’s leave for employees they understood were casual in many situations. This was especially difficult for employers to accept having already paid such employees casual wage premiums.

POSITION AFTER THE HIGH COURT RULING

The ruling came from an appeal against the Federal Court decision. The High Court found that the employee in question was a casual employee and was consequently not entitled to the additional employee entitlements claimed. The High Court provided guidance on what to consider when assessing whether an employee is a casual employee. Some of these factors are summarised in the table below.

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