Federal Court decision in the matter of WorkPac v Rossato questions the ‘permanent casual’ work model commonplace in mining and other parts of the economy.
A casual job should be genuinely irregular and intermittent and not just a permanent job without security or entitlements.
In WorkPac v Rossato the court upheld key principles of the August 2018 WorkPac v Skene decision, namely that work which is regular, on-going and permanent in nature is not genuinely ‘casual’ and therefore attracts entitlements such as paid annual leave.
CFMEU National President Tony Maher said employers should now start employing people according to the objective nature of their work rather than their preferred label.
This is a fantastic decision that puts an end to the ‘permanent casual’ rort that has become a scourge in the coal mining industry and across the workforce,” said Mr Maher.
It’s a decision that passes the pub test on what it means to be a casual and is consistent with community expectations that casual work is irregular and intermittent.
Employers must now stop with the nonsense that calling a worker a casual makes them so.
When a job is full-time, regular and on-going, it is permanent and deserves the security and entitlements that come with permanent work.
Our Union has worked hard to clarify the law with this decision and we will now be fighting to restore rights and lost pay for casual labour hire workers across the coal mining industry who have been illegally ripped off.”
Former casual coal miner Paul Skene, a CFMEU member who previously took on WorkPac and won back-paid annual leave on the basis he wasn’t a genuine casual, said he was delighted the substance of his case had been upheld.
I’m delighted with this decision,” he said. “It clearly shows how casuals have been ripped off and treated like second class citizens. I’m very pleased that the law is now clear and that my case has made a difference.”
Background & Comment
WorkPac v Rossato was a case brought by labour hire giant WorkPac designed to wind back the Federal Court’s prior decision in the matter of casual coal miner and CFMEU member Paul Skene.
It goes to the principle that the objective reality of the employment relationship should determine if a worker is casual or permanent, not just the description preferred by the employer. That is, a casual job should be genuinely irregular and intermittent and not just a permanent job without security or entitlements.
WorkPac v Skene was run over four years by the CFMEU Mining and Energy Division.
Paul Skene was a fly in fly out haul truck driver on two large coal mines in central Queensland, working a seven days-on, seven days-off roster, set 12 months in advance. He was employed as a casual by labour hire company WorkPac but directly supervised by Rio Tinto and performing the same work as direct Rio Tinto employees.
His argument was that his work arrangement did not fit the legal definition of a ‘casual’ and was therefore owed annual leave entitlements under the National Employment Standards.
In an August 2018 decision, a full bench of the Federal Court agreed, undermining the long-term ‘permanent casual’ arrangement in the coal mining industry. The Union estimates that some 40% of coal miners are now employed as labour hire casuals, performing the same work as permanents but with no job security or entitlements and earning about one-third less.
The decision paved the way for casual mineworkers in regular and continuous employment to claim unpaid leave entitlements as their work arrangements were in practice permanent and on-going.
Unusually, WorkPac did not appeal the Skene judgment to the High Court but rather initiated a new case in the Federal Court known as WorkPac v Rossato, in the hope of undermining the Skene decision’s definition of casual as intermittent and irregular. The WorkPac v Rossato case also sought to obtain a favourable judgment on the issue of ‘set-off’ to reduce their potential financial liability for backpay claims.
WorkPac was unsuccessful.
WorkPac has had the vocal support of employer groups including the Australian Industry Group, who have made claims about a potential outbreak of ‘double-dipping’ by casual employees.
We note that there is no capacity for employees to ‘double dip’ on casual loading and leave entitlements if they are correctly classified, also that in many other industries the use of casuals is closer to the legal definition and community expectation – that is, intermittent and irregular.
Despite employer rhetoric about the Skene decision affecting small business, it is most relevant to mining multinationals. WorkPac supplies labour to global mining giants like BHP, Glencore and AngloAmerican.
Today’s decision upholds the principles in Skene and bolsters efforts to restore entitlements and security to jobs which have traditionally been permanent jobs. It also facilitates backpay claims for workers previously misclassified as casuals, including the Union’s own class action against WorkPac.