WorkPac Pty Ltd v Rossato [2020] FCAFC 84


On the 2nd of May 2020 a Full Court of the Federal Court handed down the decision on the case of WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

From 2014 to 2018, Mr Rossato was employed to work in mines by a labour hire company. However, was not an employee of the mine but of the labour hire company, WorkPac. During this period Mr Rossato had a number of employment contracts and was always paid the casual allowance indicating that his employment status was still a casual.  Mr Rossato however, considered that he was a permanent employee and took WorkPac to court to fight for his benefits. After viewing the relevant facts all three members of the Full Court of the Federal Court agreed with Mr Rossato and his legal representatives that he was not a casual employee.

The reasoning of the Full Court was that WorkPac was unable to show that there was no ‘firm advance commitment’ to continuing employment for Mr Rossato. To show that would have required that there be ‘irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work’. These elements were not present in Mr Rossato’s case. Indeed on all five counts, the opposite was the case. 

The Full Court ordered that Mr Rossato’s employer back pay Mr Rossato all accrued entitlements such as annual leave and personal carers leave that he would have earned as a permanent employee. Further the Full Court ordered that WorkPac could not pursue an overpayment claim for the casual allowance paid to Mr Rossato whilst in their employ.

Presently WorkPac is seeking leave to appeal the decision to the High Court.  If permission is granted the High Court will then hear the matter and decide whether uphold or overturn the ruling of the Full Court of the Federal Court. The Federal Government has stated that it will support WorkPac before the High Court if leave to appeal is granted. The Federal Attorney General has also mentioned the possibility of legislative amendments to the Fair Work Act to address the matter.

AMIC will keep you up to date as we receive advice on the appeal.