The High Court today, has overturned the longstanding view provided in the Skene and Rossato cases that long term casuals who work regular and systematic hours are likely to be considered permanent employees, who in turn may be able to make a claim for entitlements normally reserved for only full time and part-time employees.”
The High court found that a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Fair Work Act.
Furthermore, work pattern such as established shift structures fixed long in advance by rosters, did not establish a commitment to a continuing employment relationship when each assignment ended.
In 2016, the Federal Court in the case of WorkPac v Skene, ruled that Mr. Skene, who was a labour hire casual was an employee entitled to annual leave payments because he worked regular, predictable hours that were continuous and was not subject to significant fluctuation. As such, he was deemed a permanent employee and not a casual employee at law and therefore was owed entitlements such as annual leave
As a result, many employers feared that their casual employees who worked in a regular and systematic basis could potentially be entitled to annual leave payments. To address this, the government introduced a regulation in 2018 to enable employers to offset any future obligation to pay leave entitlements against payments already made to their casual employees such as the payment of a casual loading.
Around this time, and to test the application of the new regulation WorkPac sought a declaration from the Federal Court that another casual employee, Mr. Rossato, was not entitled to paid leave under the Fair Work Act given his engagement as a casual employee, and that if he was so entitled, WorkPac should be entitled to set off any payments (including casual loading) already made to Mr Rossato against any leave entitlements that may be held to be payable to him (WorkPac v Rossato).
Up until this point, these two cases had cemented the view that engaging casual employees and paying them a casual loading will not be enough alone for them to be considered a true casual at law. The courts in both Skene and Rossato have confirmed that long term casuals who work regular and systematic hours are likely to be considered permanent employees, who in turn may be able to make a claim for entitlements normally reserved for only full time and part-time employees. The High Court has overturned this view today.
In an effort to bring clarity to the definition of a casual employee, the Federal government in 2021 amended the Fair Work Act to define casual employment so as to avoid the double dipping issue which the Regulations did not properly remedied.
The decision by the High Court today aligns with the definition of a casual employee under the Fair Work Act.