FEDERAL COURT OF AUSTRALIA

WorkPac Pty Ltd v Rossato [2020] FCAFC 84

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.

Between 28 July 2014 and 9 April 2018, the applicant (WorkPac) employed the respondent (Mr Rossato) and supplied his labour to companies within the Glencore Group. Mr Rossato was employed under six consecutive contracts during this period.

In these proceedings, WorkPac sought declarations that Mr Rossato could not make claims with respect to paid annual leave, personal/carer’s leave, and compassionate leave entitlements under the National Employment Standards because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (the FW Act) or, as a casual employee, claim payment for public holidays under s 116 of that Act. It also sought declarations that Mr Rossato could not claim corresponding entitlements under the applicable enterprise agreement (the 2012 EA) because he was a “Casual Field Team Member” (casual FTM).

In the event that the Court found, contrary to WorkPac’s submissions, that Mr Rossato was not a casual employee and not a casual FTM, WorkPac sought declarations that it was entitled to restitution of the casual loading which it claimed was included in the hourly rate it had paid to Mr Rossato. It sought that restitution on the basis of mistake and/or partial failure of consideration.

In the further alternative, WorkPac claimed that in assessing the entitlements that Mr Rossato claimed, it was entitled to bring into account the payments of remuneration that it had made to Mr Rossato on the basis that he was a casual employee.

The proceedings had a number of unusual features which are identified in the reasons of White J at [276].

The Court had, less than three months before WorkPac commenced its application, delivered judgment with respect to the claim of an employee of WorkPac, Mr Skene, employed in circumstances which were similar to, but not identical with, those of Mr Rossato: WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 (Skene). Mr Skene had been found not to be a casual employee within the meaning of s 85 of the FW Act or a casual FTM under the enterprise agreement which preceded the 2012 EA. WorkPac submitted that aspects of the decision in Skene were in error.

WorkPac advanced its claim that Mr Rossato was a casual employee on the basis that a person is a casual when there is an absence of a “firm advance commitment as to the duration of the employee’s employment or the days/ hours the employee will work.” It argued that the presence or absence of such a commitment was to be determined by reference to the terms of the parties’ written contract of employment and without reference to other materials, including evidence of the way in which the contract was performed in practice. Some of its submissions were to the effect that the commitment had to be found expressly in the contract.

The Court has found that the presence or absence of the “firm advance commitment” may be assessed by regard to the employment contract as a whole, including by considering whether it provided for the employment to be regular or intermittent, whether it permitted the employer to elect whether to offer employment on a particular day, whether it permitted the employee to elect whether to work, and the duration of the employment. It has also found that the description given by the parties as to the nature of their relationship is relevant, but not a conclusive consideration.

All members of the Court have found that, even taking WorkPac’s case at its highest, Mr Rossato was not a casual employee for the purposes of the FW Act and for the purposes of the 2012 EA. The Court has found that the parties had agreed on 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.

All members of the Court have also found that Mr Rossato was not a casual FTM under the 2012 EA, noting that the circumstances of his employment could not be distinguished in a material way from those of Skene.

All members of the Court have found that WorkPac is not entitled to restitution of the casual loading which it claimed was included in the hourly rate it had paid to Mr Rossato. The members of the Court have found that there was no relevant mistake, and no failure of consideration such as would support restitutionary relief.

All members of the Court have found that WorkPac is not entitled to bring into account the payments of remuneration that it had made to Mr Rossato on the basis that he was a casual employee. That is because the purposes of the payments of remuneration did not have a close correlation to the entitlements that Mr Rossato seeks. All members of the Court have found that WorkPac’s reliance on reg 2.03A of the Fair Work Regulations 2009 (Cth) was misplaced. By subregulation (d), the regulation can apply only when the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. That is not this case as Mr Rossato seeks payment of the NES entitlements, not payments in lieu.

In summary the Court has concluded that:

a)     in his employment under each of the contracts, Mr Rossato was other than a casual employee for the purposes of the FW Act and not a casual FTM under the 2012 EA;

b)    Mr Rossato is entitled to the entitlements that he claimed under the FW Act and the 2012 EA with respect to paid annual leave, paid personal/carer’s leave paid compassionate leave and payment for public holidays; and

c)    WorkPac is not entitled to either restitution or to “set off” against its liabilities any of the payments made under the six contracts of employment.

JUSTICES BROMBERG, WHITE AND WHEELAHAN

20 MAY 2020