The High Court of Australia has granted labour-hire company WorkPac Pty Ltd special leave to appeal the controversial decision in WorkPac v Rossato in an attempt more clearly define casual employment in Australia.
The labour-hire company has been granted the leave in order to appeal the controversial decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato, which represents the legal position on the definition of casual employment in Australia.
The decision against labour-hire firm WorkPac was seen as a big victory for unions, as it said casuals who worked regular and predictable shifts were owed permanent employee entitlements, such as annual leave, and their 25 per cent loading could not offset this liability.
Further, WorkPac submits that the Rossato decision has the capacity to apply to more than a million employees, in many sectors of the Australian economy, and in doing so alters the legal classification of their employment from casual to permanent, at a $14 billion cost to the Australian economy.
WorkPac will seek to argue before the High Court that Mr Rossato was a genuine casual employee, under the Fair Work Act.
WorkPac seeks an order preventing ‘double-dipping’ by casual employees, allowing the Court to ‘set off’ any leave entitlements owed against the remuneration received which includes casual loadings.
The outcome is not expected to be delivered until mid-2021.
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James Pearson, the Australian Chamber of Commerce and Industry chief executive said the decision to grant leave to appeal was a relief for businesses “in the fight against double-dipping claims”.
“The Federal Court’s decision exposed many businesses to the possibility of having to pay casuals twice for leave, placing both the jobs of more than a million casual employees into doubt and exposing employers to more than $14 billion in backpay claims.”
While Innes Willox, Chief Executive of the Ai Group said the decision to hear an appeal next year was “very welcome”, he said the country’s economic recovery depends on action being taken by the Government and Parliament to restore certainty.
“Certainty needs to be restored without delay to encourage employers to employ the hundreds of thousands of casuals who have lost their jobs since the onset of COVID-19”.
“What is needed is a clear definition of a ‘casual employee’ in the Fair Work Act – one that can be ready [sic] understood and applied by employers and employees. Just as importantly, legislation is needed to prevent people who have been engaged and paid as a casual from pursuing claims for entitlements which the 25% casual loading has been paid in lieu of. Allowing ‘double-dipping’ is obviously unfair.”