High Court of Australia finds for labour hire firm in coalmining 'casuals' test case of WorkPac v Rossato

But the decision is likely to be applauded by employer bodies such as the Australian Industry Group, which had campaigned hard against various court wins in the coal industry which it feared would flow through to other industries such as hospitality and retail that also made substantial use of casual employment.

It is also likely to have ramifications for a string of class actions brought on by specialist law firms who signed up thousands of mine workers to cases that were aimed at winning them compensation for alleged underpayment during their time as casuals.

It could also have implications in Canberra, because as the Newcastle Herald has reported, the federal governnment, through the public service, is probably the largest employer of casual labour in Australia.

The coal industry's use of casual mine work was considered different to run-of-the-mill casual work because the casual miners were generally on "permanent" rosters set a year ahead, working on the same equipment, doing the same jobs as more traditionally employed full-time workers, but on much lower incomes.

Importantly, today's High Court decision found that although Mr Rossato worked "an established shift structure fixed long in advance did not establish a commitment to an ongoing relationship beyond the completion of each assignment".

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The mining union's general president Tony Maher said the WorkPac v Rossato appeal judgement wound back important wins for casuals established in the Skene and Rossato Federal Court decisions, including a common sense definition of casual based on the reality of the work arrangements and a pathway to compensation for exploited casuals.

Mr Maher said the decision was "deeply disappointing for coal miners who were desperate for change in their industry".

A summary of the decision published this morning by the High Court said the appeal from a judgement of the Full Court of the Federal Court of Australia was "unanimously allowed".

The summary said Mr Rossato was at all times treated as a casual by his employer, WorkPac, and was not paid the leave and public holiday entitlements owed to non-casuals under the Fair Work Act.

It referred to another, similar case from August 2018, WorkPac Pty Ltd v Skene, which held that mineworker Paul Skene, who was employed in "similar circumstances" to Mr Rossato, "was not a casual employee".

The High Court said the Full Federal Court concluded Mr Rossato was not a casual employee for the purposes of the Fair Work Act and declared he was entitled to the payments he claimed. The full court also rejected WorkPac's "set off and restitution claims". WorkPac then appealed to the High Court.

The court said it held that a casual employee was someone who had no firm advance commitment to the duration of their employment or for the hours of their work and who gave "no reciprocal commitment to the employer".

The court said Mr Rossato's employment was "expressly on an 'assignment by assignment basis' and he was entitled to accept or reject any work and WorkPac was not obliged to offer him further work after each assignment.

"That Mr Rossato was to work in accordance with an established shift structure fixed long in advance by rosters did not establish a commitment to an ongoing employment relationship beyond the completion of each assignment," the High Court summary said.

"In carrying out each assignment, Mr Rossato worked as a casual employee for the purposes of the Act and the enterprise agreement. On that footing, it was unnecessary to consider WorkPac's set off and restitution claims."

Mr Maher said the Morrison government's industrial relations legislation - passed in March with the help of One Nation - embedded what the union believed was an unfair definition of "casual" in the Fair Work Act, blocking pathways to compensation.

"We have fought long and hard through the courts to expose the 'permanent casual' rort in the mining industry and I know our members are proud of what we have achieved," Mr Maher said.

"The Federal Court has twice upheld the common sense principle that you can't be a so-called 'permanent casual'.

"However, the Morrison Government has been determined to do the bidding of big mining and labour hire companies and overturn sensible limits on casualisation through the IR Omnibus Bill and by supporting this appeal in the High Court.

"Thousands of casual coal miners had lost an avenue to claim entitlements and the hope of an end to the 'permanent casual' rort.

"The Morrison Government with the enthusiastic support of the Nationals and One Nation has made sure of this.

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"We encourage all coal miners to look carefully at any work contract they sign.

"Today's decision makes clear that the words in the contract matter more than the reality of your working conditions.

"Also look carefully at what your political representatives are offering.

"The real solution to the misuse of casual employment is a proper definition in the Fair Work Act based on the reality of the job - not just words in a contract - and a commitment to same job, same pay for labour hire workers.

"This result can only be brought about by a change in the Federal Government and we are going to campaign hard to make this a reality."

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