Skip to content

Casual Employees – A Permanent Solution? August 9, 2021

In June last year we reported on the decision of the Full Court of the Federal Court in WorkPac Pty Ltd v. Rossato.

The Full Court Decision

In that case the Full Court found that Mr Rossato was a permanent employee in circumstances where:

  1. The contract described him as a casual;
  2. He had worked for the employer for 4 years under six successive contracts;
  3. He worked the hours of a fulltime employee on long term rostered arrangements; and
  4. He was paid a “casual loading”.

The Full Court determined the question of whether there was a “firm advance commitment” and therefore whether Mr Rossato was a permanent employee by having regard to not only the terms of the contract between the parties but also the subsequent conduct of the parties; how did the relationship in fact work.

The consequence was that Mr Rossato was entitled to the entitlements of a permanent employee, such as annual leave and personal leave.

The Full Court also held that WorkPac was not entitled to offset against any liability to pay entitlements the “casual loading” paid to Mr Rossato.

WorkPac appealed to the High Court.

High Court Decision

On 4 August 2021 the High Court delivered its decision.

The High Court allowed the appeal and set aside the orders of the Full Court of the Federal Court.

The High Court concluded that Mr Rossato was a casual employee.  The consequence is that Mr Rossato is not eligible for the entitlements of a permanent employee.

Contrary to the approach of the Full Court of the Federal Court, the High Court determined that the question of whether an employee was a casual was ascertained based on the terms of the contract, not the subsequent conduct of the parties.  The question to be asked was whether there was a “firm advance commitment” as to the duration of the employee’s employment or the days (or hours) the employee will work.

Relevantly, the terms of the Rossato contract included:

  1. employment with was on an assignment-by-assignment basis, with each assignment representing a discrete period of employment on a Casual or Maximum Term hourly basis.
  2. an employee could accept or reject any offer of an assignment.
  3. on completion of an assignment, whether satisfactory or otherwise, WorkPac is under no obligation to offer any other assignment/s.
  4. the period of an assignment could be varied by WorkPac on one hour’s notice.
  5. casual assignments could be terminated by either WorkPac or the employee on one hour’s notice. 

The High Court concluded that these terms meant the employment contract could not be characterised as demonstrating a “firm advance commitment” and therefore Mr Rossato was a casual employee.

This approach is consistent with (but was not determined by) the approach now required under the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth).

Because of this conclusion, the High Court did not have to answer the question of, if Mr Rossato was a permanent employee, whether WorkPac was entitled to offset against any claimed entitlements the “casual loading” paid to Mr Rossato.

For advice or information regarding any employment issues, contact Director of Dispute Resolution, Scott Eustace, at [email protected] or phone 3439 8880.


Contact Us

Need more information or want to book in a time to talk with one of our experts? Just fill in the form below and we'll get back to you.

Further Resources


2022 Queensland Land Valuations – do you need to object?

The 2022 Queensland Land Valuations were released yesterday, 31 March 2022. You can find further...

Probuild Collapse and Sub-contractor Recovery Options

On 24 February 2022 builder Probuild was placed in administration.  This leaves in the vicinity...

Logan and Gold Coast Faster Rail project – Funding Commitment Announced by the Queensland Government

Recently the Queensland Government committed $1.121 billion in funding to deliver the Logan and Gold...

Latest Videos


Got a question? We get that a lot, so here are a few of the most common ones we hear along with an answer that may assist.

Key Contacts

James Stokes

Managing Director

Scott Eustace

Director - Dispute Resolution + Insolvency

Garry Stokes


Cassandra Paramor

Office Manager

Sarah Day

Special Counsel

Jessica Tjong


Tarnya Fitzgibbon

Lawyer (Special Consultant)

Dilsher Batth


Lerrin Acuzar

Law Graduate

Kara Distel

Marketing Co-Ordinator

Bree Glover


Rahel Zewde


Harrison Gambling


Logan City Commercial Lawyers | Stokes Lawyers - Springwood

Paddington Stokes

Wellbeing Consultant

Scott Eustace

Businesses that we have helped

Here's a small selection of businesses we've helped achieve great outcomes.


Don't take our word on our excellent service, here's what our clients have to say:

Let us help you

Our team of experienced legal professionals can help you find the right advice and get the best outcomes to meet all your commercial law needs. Just click on the link to get in touch.

As Featured In:

google-badgeAsset 1@3x