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Issue 1: was Mr Rossato a casual employee?

The parties agreed that the correct definition of a casual employee is the one formulated in Skene, i.e. an employee who ‘has no firm advance commitment from her or his employer to continuing and indefinite work according to an agreed pattern of work’.[8]

However, the parties diverged when it came to which facts and circumstances could be taken into account.  WorkPac submitted that, since the employment contracts were wholly in writing, the parol evidence rule precludes the Court from taking post-contractual performance into account.  That is to say, the characterisation of Mr Rossato’s employment had to be determined only by reference to the written contracts, and not any other evidence.  Mr Rossato disagreed and argued that the Court should have regard to all the facts and features of his employment, including facts coming into existence after a contract was entered into (i.e. applying the “totality of the relationship” test), in accordance with the approach taken in Skene.  While the Judges were not prepared to rule that the adoption of the “totality of relationship” approach by the Full Court in Skene was wrong, they ultimately did not have to decide on the issue.  That was because the Judges held that, taking WorkPac’s argument at its highest, the contracts between it and Mr Rossato did not make him a casual employee – the parties’ real terms of engagement did not mean to create casual employment, as there was not the requisite “absence of a firm advance commitment” in those contracts.

In Rossato, factors that were persuasive of a “firm advance commitment” provided for in the contracts included the following:

1. The rosters were prepared months in advance. The rosters were provided together with Mr Rossato’s first three contracts, and thereafter, they were drawn up a year in advance.  WorkPac sought to diminish the significance of these rosters, arguing that they did not form part of the contractual terms.  The Court was not persuaded by WorkPac’s arguments, and held that even if the first roster was not part of the contract, it formed part of the factual matrix for subsequent contracts.  Further, one of the conditions of Mr Rossato’s employment was that he would work the shifts and or rosters, including “additional or replacement rosters.  The Court regarded the subsequent rosters in 2014 and 2015 as the replacement rosters contemplated by the conditions of employment.  Thus, the rosters provided an established pattern of shifts, which was made known to Mr Rossato.
2. Mr Rossato was provided accommodation to use while he worked each swing of shifts. It was improbable that Mr Rossato would be provided free accommodation and also be allowed the freedom to accept or refuse shifts each day. 
3. There is no evidence that WorkPac adopted the practice of informing Mr Rossato at the beginning of each day, or each “swing”, whether he was required to work. The Court inferred that this was because the rosters served to establish a mutual understanding between WorkPac and Mr Rossato regarding the shifts he was required to work, and therefore Mr Rossato did not need to be told before each shift.
4. WorkPac had a practice of pre-populating Mr Rossato’s timesheets. Therefore, it seemed more likely than not that WorkPac would have known in advance the requirement for Mr Rossato’s labour.
5. The contractual documents governing Mr Rossato’s employment included a provision whereby Mr Rossato was required to commit to complete an assignment. That provision indicated that if he failed to do so, WorkPac could recover damages from him.  The Court found that such a provision would indicate that WorkPac intended to secure the provision of Mr Rossato’s labour.

It is also worthwhile to have regard to White J’s summary of the case law on “firm advance commitment” at [444]:

“The authorities reviewed above provide some support for the following propositions:

(a) the postulated firm advance commitment may be lacking when the employment is intermittent or irregular, informal and unlikely to continue for any length of time and other than regular and stable;

(b) the postulated firm advance commitment may be absent if the employer can elect whether to offer employment on a particular day and if, when offered, the employee can elect whether or not to work;

(c) the postulated firm advance commitment may be absent if the employee works only on demand or as required over a short period;

(d) the description of the employment as being by the hour and agreement that the employment may be terminated on an hour’s notice are relevant but not conclusive considerations;

(e) the description which the parties themselves give to their relationship is a relevant but not conclusive consideration;

(f) the postulated firm advance commitment does not have to be express but may be discerned from the employment arrangement considered as a whole. This is particularly so when the employment contract is informal or not wholly in writing;

(g) the statutory context may indicate that the existence of the firm advance commitment is to be determined by reference to the circumstances known at the time of the engagement or by those circumstances and the manner of performance of the contract; and

(h) account may have to be taken of changes in the employment relationship which occur after its commencement.”

(references omitted)

The Full Court in Rossato ruled that assuming without deciding that WorkPac’s “parol evidence rule” argument was correct, nevertheless the contracts before the Court did not entail agreement to casual employment (despite those contracts saying each was for “casual employment”).  In reaching that conclusion the Court considered post-contractual conduct of the parties.  The Court held that the parol evidence rule did not exclude consideration of post-contractual conduct when ascertaining, as a matter of fact, the terms upon which the parties agreed; all it precluded was the use of post contractual conduct to determine the meaning of terms actually found in the contract (Bromberg J at [87-89] and White J at [528]).  Also, both Bromberg and White JJ said they would probably not have overturned Skene in any event, as it did not appear to them to be clearly wrong.   

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