"All members of the Court have also found that Mr Rossato was not a casual FTM under the 2012 EA, noting that the circumstances of his employment could not be distinguished in a material way from those of Skene. All members of the Court have found that WorkPac is not entitled to restitution of the casual loading which it claimed was included in the hourly rate it had paid to Mr Rossato. The members of the Court have found that there was no relevant mistake, and no failure of consideration such as would support restitutionary relief. All members of the Court have found that WorkPac is not entitled to bring into account the payments of remuneration that it had made to Mr Rossato on the basis that he was a casual employee. That is because the purposes of the payments of remuneration did not have a close correlation to the entitlements that Mr Rossato seeks. All members of the Court have found that WorkPac’s reliance on reg 2.03A of the Fair Work Regulations 2009 (Cth) was misplaced. By subregulation (d), the regulation can apply only when the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. That is not this case as Mr Rossato seeks payment of the NES entitlements, not payments in lieu." [Workpac v Rossato, May 2020]
Yahoo!
Finance,
21 May 2020:
Casual
employees working full-time hours will be entitled to paid leave,
setting back employers around $8 billion in back-pay claims, after a
landmark ruling by the Federal Court on Wednesday.
The
decision means regular, ongoing casuals will be able to access paid
annual leave, paid personal/carer’s leave and paid compassionate
leave, and employers cannot claim that 25 per cent pay loadings
offset those entitlements.
The
ruling in Workpac v Rossato has effectively pulled the pin on the
‘permanent casual’ work model, and means any regular work that is
permanent in nature is not genuinely casual, and therefore attracts
the same entitlements as permanent staff.
“This
is a fantastic decision that puts an end to the ‘permanent casual’
rort that has become a scourge in the coal mining industry and across
the workforce,” the Construction, Forestry, Maritime, Mining and
Energy Union national president Tony Maher said.
“It’s
a decision that passes the pub test on what it means to be a casual
and is consistent with community expectations that casual work is
irregular and intermittent.”
Maher
called on employers to “stop the nonsense”, and start treating
casual employees on permanent hours as if they were permanent.
“When
a job is full-time, regular and on-going, it is permanent and
deserves the security and entitlements that come with permanent
work,” Maher said.
“Our
union has worked hard to clarify the law with this decision and we
will now be fighting to restore rights and lost pay for casual labour
hire workers across the coal mining industry who have been illegally
ripped off.”…….
Industrial
relations minister Christian Porter said the decision would have
“immediate practical implications for the bottom line of many
Australians businesses at a time when so many have taken a huge hit
from the Covid-19 pandemic”.
In
fact, employers estimate between 1.6 and 2.2 million casuals will be
affected, with a back-pay bill of around $8 billion looming.
Porter
also flagged a potential appeal….
"Given
the potential for this decision to further weaken the economy at a
time when so many Australians have lost their jobs, it may also be
necessary to consider legislative options."
See Summary of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (20 May 2020) for further details.
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