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Mr Rossato was engaged as an employee for WorkPac, a labour hire company which specialises in providing labour to companies involved in the mining, construction, engineering and oil and gas industries.  Mr Rossato had signed a generic document which outlined the conditions governing all the assignments given to him by WorkPac (‘General Conditions’).  He had also signed six successive contracts (titled ‘Notice of Offer of Casual Employment’) whereby he was assigned to work at various mine sites between July 2014 and April 2018.  Each of the contracts described Mr Rossato as a casual employee, and purported to incorporate terms of the relevant enterprise agreement.  The flat hourly rates in each of the contracts were in excess of those set in the enterprise agreement.

Under each engagement, Mr Rossato was rostered to work shifts alongside the mine operator’s direct employees.  He worked on a “drive in-drive out” basis, and stayed in the accommodation provided by the mine operator during each “swing” of shifts.  During his employments with WorkPac, Mr Rossato worked almost every shift, except for the Christmas shutdowns, the periods when his crew was not required to work due to inclement weather and an occasion when he needed to care for his partner who was seriously ill.

It is not necessary in this case note to deal with each of the six separate contracts between the parties.  It is worth noting however that typically, they provided for Mr Rossato to work by reference to pre-determined shift rosters over significant periods of time, with no contemplation that he had to check at the end of one shift that WorkPac needed him for the next scheduled shift.  For example, White J observed in relation to the first such contract that “the material concerning shift work provided to Mr Rossato at the time of the [first contract] conveyed that he was being employed to work in a well organised and integrated work structure operating indefinitely”.[6]

Prior to Rossato, another WorkPac employee, Mr Skene, who had been engaged under similar employment arrangements, commenced legal proceedings and was successful in persuading the Court to find that he was not a casual employee.[7] 

However, there is a distinction to be made between Mr Skene’s case and Rossato.  Mr Skene instigated legal proceedings to obtain compensation and penalties on the basis of WorkPac’s failure to pay the leave entitlements that it owed to him.  On the other hand, in Rossato, it was WorkPac that commenced Court proceedings for declaratory relief in an attempt to confirm that it did not owe any leave entitlements to Mr Rossato.

Click here to return to publication (WorkPac Pty Ltd v Rossato – May 2020)

[6] Rossato, [576].

[7] Skene.

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