Australia Has Rolled Workers’ Rights Back to the 1800s
The Australian High Court has just ruled that, if an employment contract says you are a casual worker, then you must be a casual worker — even if you work regular, ongoing hours. The decision is a massive blow to workers’ rights.
The Australian High Court’s decision in the Rossato case is a devastating blow to insecurely employed workers. (Solomon203 / Wikimedia Commons)
This year, Christmas came early for Australian employers and their lobbying associations, law firms, and political representatives. On August 4, the High Court of Australia handed down its decision in the Rossato case (WorkPac Pty Ltd v Rossato [2021] HCA 23). Although the media has barely reported on the case, the outcome is one of the most devastating for workers’ rights in decades. It will entrench casualization by setting a precedent that denies long-term casual employees who work regular hours the right to convert to permanent positions. But worse than this, it strikes at the heart of Australian workers’ rights by prioritizing the written terms of employment contracts over the real-life realities of work.
The Rossato Case
The Rossato case has its origins in 2016, when the Federal Court found that mine driver Paul Skene — employed by the labor hire company WorkPac — was not a casual employee. Accordingly, Skene was therefore entitled to benefits such as paid leave. The court found that despite Skene’s contract giving him the status of a casual employee, the fact that he worked regular and predictable hours over an extended period meant that he was in reality a permanent worker.
Subsequently in 2018, another WorkPac mine worker, Robert Rossato, wrote to his employer to make a case for a similar recategorization. Although Rossato’s contract said that he was a casual, he argued that his regular and predictable shifts over four years demonstrated that he was not. Consequently, he argued that he should receive the same leave and other entitlements that accrue to comparable workers under the national employment standards, set by the Fair Work Commission.
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