Casual employees: High Court confirms that post-contractual conduct has no role to play in interpreting wholly written contracts of employment

In brief 3 min read

On 3 August 2021, the High Court handed down its long-awaited decision in WorkPac Pty Ltd v Rossato & Ors¹ which confirms that Mr Rossato was not a permanent employee because the express terms of the contracts between Mr Rossato and WorkPac were inconsistent with a 'firm advance commitment to continuing employment beyond the particular assignment'.

Background

WorkPac engaged Mr Rossato under six consecutive employment contracts, which described him as a casual employee. 

Mr Rossato argued that he was a permanent employee and that he was therefore entitled to payments for untaken annual leave, public holidays and periods of personal leave and compassionate leave taken by him. This was because WorkPac provided him with various rosters which gave him a firm advance commitment to his working hours (amongst other factors).  

WorkPac argued that none of the six contracts offered to Mr Rossato contained any firm advance commitment to indefinite ongoing work. It also argued that where the terms of the employment contract are all recorded in writing, post-contractual conduct has no role to play in determining whether the employee is a casual.

The decision - 'unenforceable expectations' and post-contractual conduct have no role to play where there is a wholly written contract

In summary, the High Court decided that:

• Where there is a wholly written contract that clearly defines the legal relationship between an employer and employee as one of casual employment, that is determinative. Any expectation of the employee of continuing employment does not give rise to enforceable legal rights against the employer and does not change the legal character of the relationship.  
• Obligations should not be determined by post-contractual conduct – parties should know what their obligations are at the outset of the relationship.²
• The rosters that were provided to Mr Rossato did not establish a commitment to a working relationship after the completion of each assignment.
• The contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship after the completion of each assignment. The express terms of the contract were 'distinctly inconsistent with any such commitment'.

What does the decision mean for employers?

Given the definition of 'casual employee' that was inserted in the Fair Work Act 2009 (Cth) (FW Act) in March this year, the High Court's decision, as a practical matter, is unlikely to impact employers in the same way as it would have, without that statutory definition.

The decision is nevertheless significant because the High Court has made it clear that post-contractual conduct does not determine the legal relationship between employers and employees where the parties have recorded the terms of their relationship comprehensively in a written contract of employment.

It is also helpful that the High Court's approach in determining whether a person is a casual employee is largely consistent with the statutory definition of a casual employee. The FW Act provides that an employee is a 'casual employee' if:

• an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
• the person accepts the offer on that basis; and
• the person is an employee as a result of that acceptance.

Our Insight on these amendments is available here.

The above new definition has retrospective operation. That is, it applies to employees who were offered employment before the amendment to the FW Act commenced operation on 27 March 2021.³ This means that the above definition will apply to almost all casual employees where there may have previously been uncertainty regarding their casual status.