High Court decision another blow for casual workers

August 14, 2021
The High Court has overturned a decision which said bosses cannot use casual loadings to offset workers' full entitlements.

In a blow for casual workers’ rights, the High Court overturned the WorkPac Vs Rossato decision on August 4.

Last year the Federal Court ruled that Rossato — who was employed by WorkPac under six consecutive contracts — was not a casual worker under the Fair Work Act because he was given regular shifts with “firm advance commitment”.

The decision meant that Rossato should have been classified as a permanent worker and be entitled to annual leave and sick pay.

Significantly, it also showed that employers cannot use casual loadings to offset these conditions.

The Federal Court decision represented a threat to employers who have a material interest in the workforce being casualised. It also gave hope to workers employed in insecure casual work, as well as those on short-term contracts employed in the same job over a long period of time.

Unsurprisingly, big business criticised the initial decision and claimed it would open businesses up to $39 billion in claims.

Retail and Fast Food Workers’ Union secretary Josh Cullinan told Green Left, “the [High Court] decision reaffirms the master/servant relationship of centuries old.

“It shackles workers, desperate for employment to provide for their families, to nonsensical constructs created by highly-paid lawyers.”

The Australian Council for Trade Unions (ACTU) secretary Sally McManus said on August 4 that the decision was is “yet another blow for hard-working Australians”.

“Workers across the country are struggling with no paid leave entitlements, no confidence about where their next shift is coming from and no job security.”

Insecure work is rampant across Australia, the devastation to communities shown up by the COVID-19 pandemic.

A report by The Australia Institute last December revealed that casual workers lost their jobs eight times faster than those in permanent jobs. It also found that the majority of new jobs created since the pandemic began earlier last year have been insecure.

Insecure workers are bearing the brunt of COVID-19, with many essential jobs being low paid and highly casualised.

A majority of cases in the current outbreak in New South Wales are spreading through these workplaces.

McManus said: “Covid has shown us that casualisation is a weakness for our country — with one-in-three workers stranded with no sick leave … this is a health hazard for the community.”

The ACTU said Prime Minister Scott Morrison must “crack down” on casualisation and end the exploitation of workers on “permanent casual” employment.

It said the government must ensure workers can “secure decent, permanent jobs with proper pay and conditions, including guaranteed hours, holiday pay and sick pay”.

Cullinan said the only way for working people to secure just working conditions has not changed for centuries. “It requires direct action, in the streets.”

[Green Left is hosting a Zoom forum on August 17 at 6.30pm on protecting workers’ rights during the pandemic.]

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