Issue 3: was WorkPac entitled to restitution?
The Court rejected WorkPac’s arguments that it was entitled to restitution of the casual loading on the basis of mistake or failure of consideration. There were some differences between the Judges’ reasons for their conclusions on this issue.
Wheelahan J (with whom Bromberg J agreed) was of the view that there had been no mistake in the legal sense, because the contracts only provided for recovery in the event of overpayment of wages, and not for recovery in the event of an error in the characterisation of Mr Rossato’s employment. His Honour held that the contracts only contemplated overpayments in the arithmetical sense, therefore there had been no “overpayment” as payments had been made as stipulated in the contracts. His Honour was also of the view that there was no failure of consideration because the contractual arrangements were intended to secure Mr Rossato’s attendance and Mr Rossato had duly performed what was required of him under the contracts.
On the other hand, White J held that although mistake may have existed up to 24 November 2016 (being the date of judgment at first instance in the Skene proceedings), WorkPac failed to show that there was a causal link between that mistake and the payments. In His Honour’s view, WorkPac had set Mr Rossato’s hourly rate by first determining what it believed to be a competitive market rate, and that the composition of this hourly rate, especially casual loading, was an afterthought. His Honour went on to hold that there was no failure of consideration because the loading was not identifiable and severable, and the payments made to Mr Rossato under the contracts were designed to secure Mr Rossato’s performance. His Honour found that Mr Rossato had duly performed his part of the contractual bargain because he had not declined any shifts nor taken leave until close to the end of his employment.