man installing steel beam watched by casual employee

CONTRACT IS KING: HIGH COURT CASE PROVIDES CERTAINTY REGARDING CASUAL EMPLOYEES

The recent High Court decision in WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021) has once again placed contracts as king when it comes to determining the relationship between employer and employee.


The “commitment test” in the lead judgment is a test on whether the parties had the same intention determined by the express words of the agreement. When there is “no firm advance commitment” on days of work and “no reciprocal commitment to the employer” there can be no permanent employment relationship.


This determination is consistent with the new definition of “casual employment” under the Fair Work Act 2009 (Cth) which states that it is the terms of the contract, not the subsequent conduct of the parties that will determine whether a person is a casual employee or not (discussed in our June 2021 Newsletter article).


Key Takeaways

By 27 September 2021, employers of more than 15 employees must:

  • assess whether any existing casuals employed are eligible to be converted to permanent employment.
  • make a written offer to the employee of permanent employment or explain why such an offer cannot be made.
  • As soon as possible after 27 September 2021, employers of more than 15 employees must provide casual employees with a copy of the Casual Employment Information Statement.


What we can do for you

Employers should be taking steps now to review and update your employment contracts by 27 September 2021.

Contact us today to review your employment templates and current employee contracts to ensure compliance with the new obligations.

Contact us for advice now.
Tel: 0402 948 474 | Email: [email protected]

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