LONG TERM CASUAL ISSUE
LEAVE GIVEN FOR HIGH COURT SPECIAL APPEAL
Back in early June 2020, we gave you the low-down on the recent Federal Court case (WorkPac Pty Ltd v Rossato) causing waves nationwide in regards to long-term casuals.
Unlike some HR specialists, we cautioned a sensible approach without putting your head in the sand – anticipating an appeal, supported by major players on both sides of the argument. A request for special appeal was lodged 18th June 2020, and approval granted on 15th July 2020 to hear this appeal in the High Court.
See our previous News here for the short article, or a quick summary is listed below.
Summary – WorkPac v Rossato casual case
Mr Rossato, a casual employee of WorkPac Pty Ltd for almost four years, had six consecutive contracts. He received casual loading rather than accruing leave entitlements.
In May, the High Court found Mr Rossato was not a casual employee, and whilst he had already received the casual loading, they found he was also eligible for paid leave entitlements – effectively double-dipping.
We are pleased such an appeal has been granted given the importance of the outcome and the raft of issues it will create for industries that have for many years worked with a culture of long-term casualisation and paid a casual loading for it.
Notwithstanding this, as mentioned in our previous News, the federal legislation set out within The Fair Work Act is an important piece in this puzzle to deal with the issue of casualisation. Some industries are prone towards this employment structure. In other industries, it is either ignorance of how and why an employer should move employees to permanent employment (full-time or part-time), or driven by an employee’s wish to remain on a higher casual rate of pay.
The Players
Large interest groups will come to play in this High Court Special Appeal as long-term casualisation and “double-dipping” has a massive ripple effect on both sides of the outcome.
The ACTU (Australian Council of Trade Unions) will no doubt play a solid part in defending the outcome of the case on behalf of Rossato, and the AIG (Australian Industry Group) will heavily weigh in from a WorkPac / employer perspective. The Federal and State Governments will also be closely following this case.
Again, manage your risk
Look at what you may be able to do now for your business, within your particular industry to manage your risk. It is important to assess your company’s risk profile and determine, on the basis of the points below:
Consider whether your casuals have:
Long-term (12+ months) of employment that is stable, regular and predictive;
Check that you have offered casual conversion if it was appropriate (and have it in writing if it has been rejected by the employee). Most Awards (and Enterprise Agreements) have requirements to do this at 12 months – reach out to us for assistance with this;
Re-word and re-issue employment contracts to spell out that if an employee is found to be permanent in nature, then the casual loading is restitution for any leave entitlements.
We have been disappointed by some of the rhetoric and fearmongering by some HR professionals and consultancy businesses, trying to make a quick buck. Some advice has been completely out-of-kilter, while other advice actually increases risk to a business!
Contact HR Unplugged for sound, practical and measured advice – the next steps will depend upon your business structure, your industry as well as the outcome of this special appeal by WorkPac
Informed decisions on employment structures within your businesses are critical.