Thinking | 1 December 2020
Update: keeping it casual? High Court grants leave for appeal of Rossato decision
Employers for many months have been struggling to understand and ensure compliance with a decision of the Full Federal Court in May. The Court found that an employee of labour hire business WorkPac Pty Ltd who was engaged and paid as a casual was in fact ‘other than a casual employee’ for the purposes of certain sections of the Fair Work Act 2009 (Cth). This entitled the employee to annual leave, compassionate leave and personal leave as well as payment for public holidays.
Hall & Wilcox examined the decision and its implications at the time.
Employers across a variety of industries waited to see what would happen next, as multiple class actions were filed on behalf of employees.
This could all be reversed, however, as the High Court has now granted WorkPac special leave to appeal the decision.
The application for leave to appeal was supported by the Federal Government due to concerns about the significant cost and burden of the decision on businesses. Employer industry advocates such as Australian Industry Group (Ai Group) have also welcomed the High Court accepting the appeal. Ai Group estimated the cost to businesses could be up to $39 billion.
The appeal is expected to be heard next year.
This grant of leave will be one of the final decisions of Justices Virginia Bell and Geoffrey Nettle, as both are retiring from the High Court this year.
Hall & Wilcox will monitor the appeal as it progress and provide regular updates.
This article was written with the assistance of Andrew Banks, Law Graduate.
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On 20 May 2020, the Full Federal Court handed down its long-awaited decision in WorkPac Pty Ltd v Rossato  FCAFC 84. The Court found that an employee of labour hire business WorkPac Pty Ltd (WorkPac) engaged and paid as a casual was in fact ‘other than a casual employee’ for the purposes of sections 86, 95 and 106 of the Fair Work Act 2009 (Cth) (FW Act).
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