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The High Court has granted labour hire company Workpac special leave to challenge the full Federal Court’s momentous Rossato casual employment ruling.

Justices Virginia Bell and Geoffrey Nettle, who are set to retire from the court, granted the application.

The labour supplier is seeking to overturn the judgment that paved the way for casuals to claim leave entitlements.

Ai Group chief executive Innes Willox welcomed the development, saying that at least eight class actions are underway “pursuing claims against employers given the interpretation of the law adopted by the Federal Court”.

“In evidence given in support of WorkPac’s special leave application, Ai Group’s chief economist calculated that the potential cost impact of the Federal Court’s decision to employers, if not overturned, would be over $14 billion.”

“The Federal Government’s estimates of the potential cost impact are between $18 billion and $39 billion,” according to Willox.

In their May judgment, Federal Court justices Mordy Bromberg, Richard White and Michael Wheelahan found coal mineworker Robert Rossato, during his engagement on six consecutive employment contracts over almost four years to April 2018, to be a permanent Workpac employee entitled to be paid annual, personal/carers and compassionate leave, plus payment for public holidays during Christmas shutdowns.

Workpac launched the Rossato case after a full Federal Court upheld Federal Circuit Court Judge Michael Jarrett’s 2016 ruling that mine driver Paul Skene was an employee, despite Workpac engaging him as a casual.

Workpac said in the June that the ruling if upheld “would overturn the commonly accepted understanding of casual employment in Australia, where employees receive a higher rate of pay in lieu of leave entitlements”, while exposing “tens of thousands of Australian businesses to double dipping backpay claims for up to six years”.

Workpac v Rossato & Ors, B33/2020

WorkPac Pty Ltd v Rossato & Ors [2020] HCATrans 200 (26 November 2020)