On 27 March 2021 the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery Act 2021 (Cth) ("Amending Legislation") amended the Fair Work Act 2009 (Cth) ("FWA") and inserted a definition of "casual employee". This new definition provides that a person's status as a casual employee is determined at the beginning of the employment relationship, regardless of subsequent conduct. It is important to note that the Amending Legislation applies to offers of employment that were given before, on, or after commencement, but not in place of binding decisions made by courts before the Amending Legislation.
Until recently, there was no legal definition of a casual employee, at common law or under legislation. The term "casual worker" was not a precise legal term but rather a colloquial expression. In the absence of a definition, the facts of each arrangement were examined on a case-by-case basis in order to determine whether a worker was casual.
The legislative changes for casual employees were made in response to this perceived uncertainty created by the application of the common law meaning. After the Amending Legislation and the High Court decision of WorkPac Pty Ltd v Rossato [2021] HCA 23 ("WorkPac v Rossato") the common law and the FWA are now more aligned.
WorkPac Pty Ltd is a labour hire company which supplies labour to mining companies in Queensland. Mr Robert Rossato was an experienced 'production operator' who had been engaged...
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