ON THE 4 AUGUST 2021, the High Court unanimously allowed an appeal from the Federal Court’s decision concerning the nature of casual employment.

The High Court unanimously held that a mere expectation of continuing employment on a regular and systematic basis is not sufficient to establish that a casual employee is in fact permanent under the Fair Work Act. Consequently, Mr Rossato was not entitled to any backpay and leave entitlements.

The High Court in this decision has expressly clarified that a casual employee is an employee who has ‘no firm advance commitment’ from the employer as to the duration of the employee’s employment, the days, or the hours the employee will work and provides no reciprocal commitment to the employer.

Most importantly, the decision has reinstated that the formal express terms of an employment contract are binding as opposed any conduct or relationship between the parties which may state otherwise.

The Contract is Key

The decision provides relief, certainty and confidence to employers who engage casual employees over prolonged periods on shift rosters.

Medical practices should undertake a review and update the terms of any casual employment contracts ensuring that:

• they are well drafted and aligned to the new statutory definition of a ‘casual employee’ in the Fair Work Act and consistent with this High Court decision,
• contracts stipulate that the employer is not obliged to make work available beyond each shift and that the employee is not obliged to accept any particular shifts, and
• contracts reflect that in the event that a roster may provide for a regular pattern of shifts over an extended period of time, the employee will remain casual unless the employee agrees to be converted to full-time or part-time employment.

Need help? Please contact our Workplace Relations Team for advice or assistance on 02 9439 8822 or by email workplace@amansw.com.au