Hello, and welcome back to Article Six of Let’s Get Legal! We apologise for the extended break, but we’re looking forward to getting back into discussing important and relevant cases within Australia’s legal system! We hope you enjoy today’s article, and you can find a link to the entire series at the bottom of this post!
Workplace law in Australia has evolved significantly over the past few decades. The nationalisation of workplace legislation was initially witnessed through the passing of the Workplace Relations Act 1996, which provided 20 conditions for ‘allowable award matters’ and introduced Australian Workplace Agreements.
For those unsure, an award is a standard set of wages and working conditions for employees within a particular industry. Whereas an enterprise agreement is a legally binding agreement between the employees of a corporation, setting the terms and conditions of the employment relationship.
This 1996 law was reformed in 2006 through the Workplace Relations Amendment (Work Choices) Act. This legislation significantly favoured employers by greatly restricting trade union activity, limiting the possibility of unfair dismissal claims and decreasing various conditions at work for low-income earners and small business employees. The significant criticism and backlash from this amendment led to the creation of our current workplace legislation.
The Fair Work Act 2009 shifted the focus from employers to employees, incorporating a range of new advantages such as providing employees with a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, Modern Awards and National Minimum Wage orders.
The law has changed and adapted to either favour employers or employees, usually depending on which side of politics is in power at the time. With many employees suffering during the pandemic, the importance of upholding employees rights has been given a spotlight in the mainstream media. However, the recent High Court decision hasn’t reflected this notion, with a unanimous decision favouring employers.
The Case: WorkPac Pty Ltd v Rossato  HCA 23
– Date of Hearing: 12 and 13 May 2021
– Date of Order (Decision): 4 August 2021
– This case was an appeal from WorkPac Pty Ltd aiming to overturn a decision in the Federal Court which stated that some ‘casual’ workers were actually entitled to paid leave if they worked regular and predictable shifts with a firm advance commitment to work
– A casual mine worker, Robert Rossato, brought the case against labour-hire firm WorkPace in the Federal Court law year
– Mr Rossato worked for WorkPac on several contracts for three and a half years at Glencore coal mines in Queensland
– He did full-time hours based on rosters sometimes set a year in advance, which the Federal Court said made him a permanent worker with rights to backpay even though his contract described him as a casual
– WorkPac disputed this decision and appealed to the High Court
The appeal concerns the interpretation of section 86 of the Fair Work Act 2009.
Section 86 provides that Division 6 of the Act applies to employees, other than casual employees.
Section 87 creates an entitlement to paid annual leave, and provides that this entitlement shall accrue progressively during a year of service and shall accumulate from year to year.
So, the determination is whether the Enterprise Agreement explicitly references that Mr Rossato was a casual employee. If so, he would be unable to gain the entitlements requested.
Both courts agreed that the expression ‘causal employee’ in the Act refers to an employee who has ‘no firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work.’
Therefore, the critical decision was whether such as firm advance commitment existed in respect to Mr Rossato.
The High Court relied upon WorkPac Pty Ltd v Skene (2018), where the Full Court noted that the law excluded casual employees from certain leave entitlements. Casual employees could make their own arrangements for rest and recreation and did not need to be guaranteed leave in the same way as other employees.
This was elaborated upon by the court interpreting section 65 of the Fair Work Act by finding that the existence of a reasonable expectation of continuing employment on a regular and systematic basis is not inconsistent with the nature of casual employment.
Furthermore, the contractual agreements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship after completing each assignment. Although the work rosters were regularly produced, Mr Rossato still worked as a casual employee by carrying out each individual assignment.
The appeal was allowed, and Mr Rossato was declared a casual employee for the purposes of section 86 of the Fair Work Act.
This decision is a huge win for employers as it effectively shut down a pathway for long-term casuals to claim they were part-time or full-time workers with rights such as paid leave.
The federal government estimated that if the case had gone the other way, it would have cost businesses over $40 billion nationally in back pay, which would be ultimately unachievable during the current pandemic.
Although this case does seem to deny employees rights to which they should be entitled, I think it’s still the correct decision that now must be accompanied by appropriate law reform. The ruling provides businesses certainty regarding the nature of their long-term casual staff, but the government must now prioritise new law that lets some casuals doing regular shifts convert to permanent status after a year of employment.
Encouraging and providing permanent work needs to be a priority of the government to address some of the concerns of this case. The casualisation of the workforce and the rising gig economy is putting employees at risk not just financially but also mentally and physically. This new wave of employment is only increasing, and without proper protections in place, millions of Australian workers will suffer.
This case has cleared confusion but demonstrated that more work is to be done to protect Australian employees. What do you think can be done to protect Australian employees from the rapid casualisation of the workforce?
Let’s Get Legal Series: https://thelevinelowdown.com/lets-get-legal-2/