The recent Federal Court Workpac v Rossato decision has confirmed the principles of the Workpac v Skene decision in 2018. Both decisions confirmed that casual employees engaged in a predictable pattern of work over a lengthy or indefinite period had been misclassified. Consequently, the employees were considered eligible for paid leave under the terms of the National Employment Standards (NES).    

In its decision in Workpac v Rossato the Federal Court noted that:

• Classifying an employee a casual and paying a casual loading are not sufficient reasons for an employee to be deemed a casual for the purpose of entitlements under the NES, although they may be relevant factors.
• As in the Workpac v Skene decision, for the purposes of the NES, a casual is an employee who does not have a “firm advance commitment as to the duration of the employee’s employment or the days/hours the employee will work”. In the recent case, Mr Rossato had “employment of indefinite duration which was stable, regular and predictable such that the postulated firm advance commitment was evident in each of his six contracts”.
• The new Regulation 2.03A of the Fair Work Act enacted following Workpac v Skene was not sufficient to enable the employer to simply offset the NES entitlements against the casual loading in the Workpac v Rossato case. 

The Workpac v Rossato case was dependent on specifics relating to the contracts used and the enterprise agreement that applied. The decision does not mean that every long-term casual has an entitlement to paid leave under the NES, however it does confirm that considerations arising from the Workpac v Skene decision are relevant.

Employer organisations have indicated they will approach the Government and request it legislate to ensure that the definition of a casual worker is clarified in the Fair Work Act so as to prevent any further similar cases. The Attorney General and Minister for Industrial Relations, Christian Porter, has already indicated that the government may consider legislative options.

NDS members should take note that that Regulation 2.03A is of limited effect. Long term casual workers who are rostered for regular and ongoing patterns of work may fall into a category similar to the Skene and Rossato decisions, but will always depend on the specifics of a case. The Workpac v Rossato decision serves as a reminder for employers to carefully consider engaging casual rather than permanent employees, if their employment is likely to be ongoing with regular patterns of work.

NDS is not an industrial advisory body and members are encouraged to engage the services of registered IR practitioners when seeking advice about the implications for employers of the Skene and Rossato decisions. NDS will continue to monitor any developments and repercussions arising from the Workpac v Rossato decision.