Background facts

Robert Rossato (Mr Rossato) was an employee of WorkPac Pty Ltd (WorkPac) from 28 July 2014 until 9 April 2018. Over that period, six consecutive contracts of employment were executed between Mr Rossato and WorkPac.

WorkPac treated each employment as a casual employment and Mr Rossato as a casual employee. However, Mr Rossato claimed that he had not been a casual employee.

Determination of the Court as to whether Mr Rossato was a casual employee

Bromberg, White and Wheelahan JJ each determined that Mr Rossato was not a casual employee for the purposes of the Fair Work Act 2009 (Cth) (the FWA). Overall, their reasons were twofold.

Firstly, the Court agreed with the judgement in WorkPac Pty Ltd v Skene (Skene). In Skene, the Court determined that ‘a casual employee is an employee who has no firm advance commitment from her or his employer to continuing and indefinite work according to an agreed pattern of work (Firm Advance Commitment)’.

The Court determined that, generally, a Firm Advance Commitment is evident where:

  • There is continuing/ongoing employment;
  • There is a pre-programmed/pre-allocated roster; and/or
  • There is a maximum number of continuous shifts/hours that can be worked.

On the other hand, the Court also determined that, generally, there is no firm advance commitment where:

  • Shifts and hours are given to an employee on an irregular, intermittent and/or uncertain basis;
  • There is discontinuity in the pattern of work;
  • The pattern of work is unpredictable;
  • The employee has the ability to refuse shifts, and a mechanism for doing so;
  • The work given to the employee fluctuates to reflect demand periods;
  • There is a short notice period for termination; and/or
  • The employee is given short, minimum length shifts.

These indicia were not held by the Court to be absolute. Instead, the Court referred to them as reference points to consider the overall nature and effect of the employment contract in question.

The Court’s second reason for determining that Mr Rossato was not a casual employee comes out of the judgement of White J. White J emphasised the importance of a correct interpretation of the statutory expression ‘casual employee’ within the FWA. On this basis, His Honour determined that the FWA contemplates that casual employment is ‘irregular, intermittent or uncertain’ and that Mr Rossato’s employment was none of these things.

His Honour also specified that the existence of a Firm Advance Commitment is not ‘a statement of a hard and fast criterion’ for the existence of a casual employment, but should instead be treated as a statement about the general nature of casual employment.

Conclusion

To determine whether Mr Rossato was a casual employee, the Court considered the objective understanding of the employment agreement between the parties. It determined that an express characterisation of employment as ‘casual’ within a contract does not define the nature of the employment where it contradicts the objective understanding of the agreement between the parties.

The Court’s two reasons for determining that Mr Rossato was not a casual employee (firm advance commitment and an interpretation of the FWA) relied upon similar indicia of casual/non-casual employment. Where these indicia are present, they are relevant to the assessment of whether an employee is casual, even where the contract expressly categorises the employee as a casual employee.