On the 4th of August, the High Court overturned the Full Federal Court’s decision in the matter of Workpac v Rossato, unanimously determining that Mr Rossato was a casual employee for the purpose of the Fair Work Act 2009 (FW Act) and Workpac’s Enterprise Agreement. This is a landmark decision and changes the current understanding on how to determine employment status. That is, it is the contract that determines employee status, and not how the parties behave.   

The High Court’s decision has overturned the earlier first instance decision of the Full Court of the Federal Court of Australia in Workpac Pty Ltd v Rossato (2020) and the precedent set in the Full Federal Court in the earlier 2018 judgment of Skene v WorkPac Pty Ltd (2018) on the nature of casual employment. In this instance, Mr Rossato, and before him Mr Skene, were considered by the courts not to be a casual employee, despite having employment contracts stating they were employed as a casual. This would mean he would therefore be entitled to be paid for annual and personal/carer’s leave entitlements he had not received during his employment. The Full Federal Court also determined that this entitlement could not be offset against the casual loading Mr Rossato had received.   

However, the High Court stated that a mere expectation of continuing employment on a regular and systematic basis is not sufficient to establish that a casual employee is in fact a permanent employee for the purposes of the Fair Work Act 2009 (Cth) (Act). The High Court’s decision clarified that: 

• a ‘casual employee’ is one who has ‘no firm advance commitment’ from their employer regarding the duration of their employment or the days (or hours) the employee is to work, and provides no reciprocal commitment to the employer; and
• where parties commit to employment terms in a written contract, the “firm advance commitment” will be found in the binding contractual obligations of the parties.

Furthermore, the court said to “insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences”.

The High Court have told every court that it only matters what parties have formally agreed to in a contract, and if the parties adhere to the contract, then the contract should be given effect.



It also noted that firm advance commitment is different to a reasonable expectation of continuing employment. This expectation is not inconsistent with casual employment, as is shown by the ability for a casual employee to request flexible working arrangements and to pursue an unfair dismissal claim.

The High Court did not deal with the various set off arguments, popularly also referred to as ‘double dipping’, considering its finding that Mr Rossato was a casual employee and that no paid leave entitlements were present.

Take away message for employers

This decision will alleviate many of the concerns held by employers in respect to the risks associated with engaging casual employees on a regular and systematic basis who may later assert that they are in fact permanent employees and therefore claim for paid leave entitlements. The High Court determined that to be a casual employee, one does not have a firm advance commitment to continuing work and the casual employee does not provide a reciprocal commitment to undertake the work. Furthermore:

• Where there is a written contract and the parties adhere to those terms, the necessary “firm advance commitment” needs to be found within the contract. Firm advance commitment is an enforceable promise, not an “expectation” of ongoing employment.
• The High Court expressly recognised that casual employment can be for a long-term duration, with a casual employee working regularly and systematically.
• The decision highlights the need for employers to ensure their employment contracts reflect a true casual engagement with no firm advance commitment, and that the terms are consistent with the new definition of “casual employee” in the Fair Work Act.

If you want to ensure your organisation’s employment contracts follow best practice and that you are meeting your obligations regarding casual employees, contact Bayside Group’s Workplace Relations specialists today.