How does the High Court’s decision impact your casual workforce?

11 OCT 2021


The recent High Court judgment in WorkPac Pty Ltd v Rossato [2021] HCA 23 (WorkPac) overruled the Federal Court’s landmark decision regarding the definition of a casual employee, again shifting the definition of a casual employee.

The High Court’s decision sets out a process for determining a casual employee, giving more weight to the terms of the employment contract, establishing that express terms of a casual employment contract may potentially defeat any claims to the contrary, so long as the terms are clear.

About the Court case

The case concerned a claim by Mr Rossato, who was regarded by his employer, WorkPac, as a casual employee. Upon ceasing employment, Mr Rossato claimed that his regular and ongoing employment meant that he was as a permanent employee. He sought payments for the benefits attributed to permanent employment, such as paid sick leave and annual leave. WorkPac denied his claim, and referred the matter to the Federal Court.

At first instance the Full Court of the Federal Court found that Mr Rossato was not a casual employee. WorkPac appealed this decision to the High Court, who rejected the decision of the Federal Court, finding that Mr Rossato was in fact a casual employee. 

In making their determination, the High Court considered the following factors: 

  • the test for ‘casualness’, being whether ‘there was a firm commitment as to the duration of the employee’s employment or the days / hours the employee will work’;
  • Mr Rossato’s employment was on an assignment-by-assignment basis and he had the ability to reject work;
  • there was no obligation on WorkPac to offer further assignments to Mr Rossato; and 
  • express terms of the contract must be given effect unless they are contrary to the law.

The new definition of ‘casual employment’

As of 27 March 2021, there is now a definition for casual employees within the Fair Work Act 2009 (Cth). This definition is in line with the decision of the High Court in WorkPac.

A person is a casual employee if they are:

  1. offered employment on the understanding that the employer gives ‘no firm advance commitment to continuing and indefinite work’;
  2. the person accepts this offer; and 
  3. the person is employed as a result of acceptance.

What this means for Employers?

Employers will benefit from the High Court’s ruling and the new definition contained in the Fair Work Act 2009 (Cth), as it brings certainty as to what ‘casual employment’ is. 

If a casual employment contract makes it clear that this is the basis for an individual’s employment, and that there is ‘no firm advance commitment to ongoing employment’, an employee will have difficulty in bringing a claim to the contrary. 

Employers should take care to ensure that their casual employment contract terms are clear and properly reflect the employment relationship with their staff. 

How can Marsdens help?

If you seek advice regarding your casual workforce or if you seek to have a casual employment contract prepared for your business, please contact Aaran Johnson or Simon Kumar (contact details below) to discuss how we can assist you.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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POSTED: 11 Feb 2019
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