The Australian Federal government introduced broad changes to laws relating to casual employment, which included a requirement for employers to offer permanent employment to eligible employees.
As part of these new provisions, by 27 September 2021, employers had to identify all casual employees who have been employed since before 27 March 2021 and assess whether they were eligible for casual conversion.
On 4 August 2021, the Australian High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court concerning the nature of casual employment, the so-called “Rossato case”.
Although the meaning of a ‘casual employee’ is now defined in legislation (the Fair Work Act) due to an amendment which came into effect in March this year, this decision still has legal and policy implications.
The High Court held that a "casual employee" is an employee who has no firm advanced commitment from the employer as to the duration of the employee's employment or the days (or hours) the employee will work, and provides no reciprocal commitment to the employer.
In determining whether a “firm advance commitment” exists, the focus must be on contractual obligations between the parties, because where there are express terms of the contract of employment (as varied from time to time), they must be given effect unless they are contrary to legislation.
Reliance on non-contractual aspects of the employment relationship (e.g. working in accordance with a roster) to assert there was a “firm advance commitment” was not accepted, as there were not express or implied terms of Mr Rossato’s contract. The Court unanimously determined that Mr Rossato was a casual employee, considering that his employment was expressly on an "assignment-by-assignment basis", he was entitled to accept or reject any offer of an assignment, and at the completion of each assignment the company was under no obligation to offer further assignments.