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Last week the High Court granted labour hire company WorkPac special leave to appeal the full Federal Court’s decision in WorkPac Pty Ltd v Rossato concerning the meaning of casual employment.

 

Case recap; WorkPac Pty Ltd v Rossato [2020] FCAFC

As we reported in our earlier article, in the Rossato decision a mineworker engaged as a casual was found to be, in reality, a permanent employee and therefore entitled to be paid annual leave, personal/carer’s leave, compassionate leave, and also receive payment for public holidays which he did not work. This was despite the fact that he had agreed on commencement of employment that he would be a casual and despite the fact that he was paid a casual loading – usually understood to compensate casual employees for not having access to paid leave.

Controversially the original decision also found that the Government’s new “Double Dipping” legislation – aimed at preventing an employee from having the benefit of both a casual loading and paid leave – were not able to be relied upon by WorkPac. This cast doubt on whether the legislation would ever be able to come to the assistance of an employer.

In evidence given in support of WorkPac’s special leave to appeal application, it was estimated that the cost impact of the Federal Court’s decision to employers, if not overturned, would be over $14 billion (in paid entitlements they would have to provide to employees they had previously considered casuals).

 

What next?

We will of course let you know the outcome of the appeal as soon as it is made available. In the meantime, if you require any advice on the risks of engaging employees as casuals, and how best to reduce the likelihood that they will be found to be permanent employees, please contact EI Legal.

 

Other content that may interest you

Don’t panic. Casuals aren’t really entitled to paid leave

Casual entitlement changes – Lessons for employers

A Live Q&A with Employment Hero: What the recent Casual Entitlements ruling could mean for your business!

 

About EI Legal

EI Legal is a specialist firm of employment lawyers. We advise businesses of all shapes and sizes as well as employees and HR professionals. Please contact us if you require any assistance or wish to discuss whether an investigation is right for you and how we can help.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional legal advice. If you are unsure about how this information applies to your specific situation we recommend you contact EI Legal for advice.

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