A landmark Federal Court decision was made today on the long-awaited WorkPac vs Rossato case, a case which sought to resolve the casual employee ‘double dipping’ decision of Skene vs WorkPac. This decision has redefined what constitutes a ‘casual’ worker who is paid a remuneration with 25% loading and confirmed that ‘casual’ workers may be owed further permanent entitlements if they continually performed regular, ongoing and predictable work.
This ruling comes at a time when the current economy is already struggling with unemployment and underemployment during the COVID-19 crisis, however it highlights a need for urgent legislative reforms to provide certainty to businesses and their casual employees.
Until legal clarity occurs and the Fair Work Act is amended to clarify that a casual employee is someone “engaged and paid as such”, employers should make all attempts to protect themselves by:
· Ensuring that EA contracts have clear rates of pay and effective off-set clauses, and casual loading amounts are identifiable in contracts and payslips.
· Regularly review and identify patterns of work for all casual engagements within the business to obtain advice on employment arrangements.
· Understand when and how a casual employee may become a permanent employee to manage the nature of the employment arrangements.
This decision has huge implications for both employers and their casual employees, especially for industries like hospitality. In order to continue to provide certainty and predictability in employment of casuals, ensuring that the decision is accepted, and providing clarity in contracts and patterns of work will manage the risk around employing casual workers.
A copy of the Federal Court decision is available here.