The critical issue and its significance
While there were a number of issues for the Full Court to determine in Rossato (as detailed below) the critical issue was in our view the following one.
Accepting that casual employment involves an “absence of a firm advance commitment”, if a contract is wholly in writing, must characterisation of an employment relationship depend exclusively on the terms of the contract, or might regard be had to all the facts and circumstances pertaining to the employment relationship, including post-contractual conduct?
WorkPac accepted that after the decision in WorkPac Pty Ltd v Skene (‘Skene’), the “firm advance commitment” test prevails, but then argued that if the parties entered into a complete written contract that prescribed that the employment was casual and did not provide for a “firm advance commitment”, then that was it – the employment was casual. WorkPac consequently argued that the Full Court in Skene erred in holding that despite the written terms of the contract regard could be had to the “totality of the relationship” to determine whether an employment was casual.
If WorkPac’s arguments were accepted, then employers would have had a comparatively simple way forward if they wish to establish a casual employment relationship without the risk of subsequent claims for unpaid leave, public holidays and other entitlements that apply when an employee is not a casual. That way forward would be: insisting on a detailed written contract with the employee spelling out that (i) the contract is for casual employment, (ii) a loading is paid for absence of leave entitlements and work insecurity, and (iii) there is irregularity and uncertainty about shifts and work duration.
However, the Full Court decided that, assuming WorkPac’s argument was correct, the contracts Mr Rossato entered into, upon their proper construction, did not establish casual employment: the complete terms of the contract, assessed by reference to all the facts and circumstances, showed there was no “absence of firm advance commitment”.