Just as the Morrison Government's Omnibus IR Bill says a casual will be defined on the basis of their job offer, rather than subsequent conduct, the labour hire company at the centre of a landmark casuals case has told the High Court employment contracts must be decisive.
As it seeks to overturn the full Federal Court's momentous Rossato judgment paving the way for casuals to claim leave entitlements, Workpac has told the High Court a worker's classification depends entirely on their contract's express or implied terms.
The company says in High Court submissions filed last month that where employment contracts are written, as in the case of former Workpac coal miner Robert Rossato, their terms are "identified and construed without reference to post-contractual conduct".
"To treat the agreed categorisation as no more than an opening move in a game of objective analysis to be later played out in a court denies reality, and subverts the choices made and acted on by WorkPac and Mr Rossato," the company says.
"It is also contrary to the purposive and practical generosity with which enterprise agreements are properly to be understood and applied, and to the Act's objectives of certainty and stability for employers and their employees."
Workpac argues ss65(2)(b), 67(2) and 384(2)(a) of the Fair Work Act "explicitly recognises that casual employment can be for 'a long term', and can involve employment on 'a regular and systematic basis', 'at least 12 months of continuous service', and 'a reasonable expectation of continuing employment . . . on a regular and systematic basis'".
But it says Justice Richard White (with Justice Michael Wheelahan agreeing) "wrongly held otherwise" and "wrongly gave significant weight to the regularity and predictability of the rostering patterns of WorkPac's client – notwithstanding that it was a stranger to the contracts between WorkPac and Mr Rossato".
Workpac further argues that because it paid Rossato more as a casual than a permanent field team member (FTM) would earn for the same work, it should now be allowed to "appropriate the whole of the contractual overpayment, or at least the amount of the casual loading" to discharge any obligation to have provided paid leave.
It says the full court's "contrary decision operates as 'a warrant to claim double payment of wages, that is, to accept and retain all payments made pursuant to an employment contract in which there is no reference to the award and as well claim all payments prescribed in the award'".
"If double-dipping of that kind is allowed, then '[j]ustice and the law would have parted company'."
With at least eight class actions underway on behalf of workers engaged as casuals, the Federal Government has estimated the potential cost impact of the Federal Court decision to be between $18 billion and $39 billion.
Its Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill, (explored elsewhere in this newsletter) currently before the Senate, says a casual is one who accepts a job offer "made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person".
To "avoid doubt", it says the "question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party".
Stipulating also that a regular pattern of hours "does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work", the legislation will however create a new minimum standard for conversion to permanent roles unless employers have reasonable grounds to refuse.
Casual employees will remain so until they accept an alternative offer of employment and start work on that basis, the proposed legislation says.
The High Court called for respondents' submissions by February 18, and Workpac's reply is due on March 11 this year.