WorkPac Pty Ltd v Rossato [2020] FCAFC 84

Between 28 July 2014 and 9 April 2018, WorkPac Pty Ltd (“WorkPac“) employed Mr Rossato and supplied his labour to companies within the Glencore Group. Mr Rossato was employed under 6 consecutive contracts during this period.
In the Federal Court, WorkPac sought declarations that Mr Rossato could not make claims with respect to paid annual leave, personal/carer’s leave, and compassionate leave entitlements under the National Employment Standards because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (“the Act”) or, as a casual employee, claim payment for public holidays under s 116 of the Act.
WorkPac also sought declarations that Mr Rossato could not claim corresponding entitlements under the applicable enterprise agreement (the 2012 EA) because he was a “Casual Field Team Member”.

The Court found that the presence or absence of the “firm advance commitment” may be assessed by regard to the employment contract as a whole, including by considering whether it provided for the employment to be regular or intermittent, whether it permitted the employer to elect whether to offer employment on a particular day, whether it permitted the employee to elect whether to work, and the duration of the employment.
It also held that the description given by the parties as to the nature of their relationship is a relevant, but not a conclusive consideration. Simply labelling an employee as a “casual” does not necessarily make them so.

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