High Court finds WorkPac was never committed to contractor

The High Court of Australia this week overturned a decision by the Federal Court, declaring a Glencore contractor was not a permanent employee of WorkPac and therefore was not owed back-paid leave entitlements.

The landmark WorkPac v Rossato case was contrary to the similar WorkPac v Skene matter in 2016, where Skene received entitlements and inspired Rossato to file his own case in the Federal Court in 2018.

In the case of Rossato, the product operator worked for WorkPac at Glencore’s Collinsville and Newlands mines on 7/7 (seven days on, seven days off) and 5/5/4 (five days on, five days off, four days on, five days off, five days on, four days off) rosters.

The Federal Court ruled in favour of Rossato in May last year before WorkPac appealed the decision in the High Court in November.

Rossato’s legal team argued that the regularity of his working hours and the assumed nature of their continuation through six separate contracts was enough to deem him a permanent or semi-permanent employee.

But the High Court this week concluded otherwise, stating that the regularity of Glencore’s rostering system was not enough to deem its contractors permanently employed.

“The contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment,” the High Court stated.

More evidence against Rossato was that five of his six contracts were titled “Notice of Offer of Casual Employment – Flat Rate.”

The Australian Resources and Energy Group AMMA welcomed the decision, as anything other than a win for WorkPac could set a precedent with the potential to send many businesses bankrupt.

AMMA chief executive Steve Knott said this case would not have come about if the Federal Court had made the right call on the Skene case in 2016.

“The damage these decisions have had on business confidence in just about every sector of the economy has been enormous,” Knott said.

“The view from the employer community has always been that the Federal Court was applying a highly novel interpretation that was out-of-step with how casual employment arrangements have worked in practice for many decades.”

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