High Court of Australia · [2021] HCA 23

WorkPac v Rossato

This High Court decision is important for employers because it dealt with casual employment, firm advance commitment and how written...

High Court of Australia4 Aug 2021

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Quick read

Employers should use clear casual contracts, but should not treat WorkPac as the whole answer.
This High Court decision is important for employers because it dealt with casual employment, firm advance commitment and how written contract terms can matter when...

Use this to check

Clear, accurate employment and contractor documents carry real weight when a relationship is tested.
Do not rely on labels. The arrangement, paperwork and day-to-day practice need to line up.
Review casual and contractor templates periodically, especially after changes to the casual employment definition.

Decision snapshot

1
What happened
- WorkPac employed Mr Rossato as a production worker under a series of six written labour-hire assignments for one of WorkPac's clients.
- WorkPac treated him as casual, paid him on that basis and did not pay the leave and public holiday entitlements owed to non-casual employees.
- After the earlier WorkPac v Skene decision, Mr Rossato claimed he was not casual and sought untaken annual leave, public holidays, personal leave and compassionate leave.
2
What the court had to decide
- The Court had to decide whether there was a firm advance commitment to ongoing work.
- The key point was whether that commitment should be found in the binding contract terms, or inferred from the fact that Mr Rossato worked regular rostered shifts over time.
3
What the court decided
- The High Court allowed WorkPac's appeal.
- It held that, on the contracts before the Court, Mr Rossato worked assignment by assignment, WorkPac was not bound to offer further work after each assignment, and Mr Rossato was a casual employee for the relevant Fair Work Act and enterprise agreement purposes.

Practical impact

Practical read

Employers should use clear casual contracts, but should not treat WorkPac as the whole answer.
Casual employment rules changed after the case, so documents, rosters, employee choice rights and current Fair Work guidance all need to be checked together.

Useful next steps

Clear, accurate employment and contractor documents carry real weight when a relationship is tested.
Do not rely on labels. The arrangement, paperwork and day-to-day practice need to line up.
Review casual and contractor templates periodically, especially after changes to the casual employment definition.
Check the casual definition that applies when the employee starts.
Give casual employees the Casual Employment Information Statement at the required times.

Where the case still matters

WorkPac v Rossato is a useful case for employers because it shows how much weight a carefully drafted written employment contract can carry. But it is not a shortcut for deciding casual status today.

The Fair Work Act has changed since the decision. From 26 August 2024, the casual employee definition and the pathway for changing from casual to permanent employment were updated. That means a business reading this case should treat it as background on contract drafting and casual status, then check the current Fair Work rules before making decisions.

The dispute

Mr Rossato worked through a series of assignments for WorkPac and was paid as a casual. The work itself followed rosters set in advance, so the dispute became whether the legal relationship was genuinely casual or whether it had moved into something more permanent.

The High Court focused heavily on the legal rights and obligations in the written contracts. In the contracts before the Court, WorkPac was not bound to offer ongoing work and Mr Rossato was not bound to accept it beyond each assignment.

Business fact	Why it mattered
Written assignments	The contracts described the engagement assignment by assignment.
No binding promise of ongoing work	This was central to whether there was a firm advance commitment.
Regular roster pattern	Regular work was relevant, but it did not override the binding contractual terms in this case.

How to read this with the current casual rules

The current Fair Work guidance says a person is a casual employee if, when they start, there is no firm advance commitment to ongoing work and they are entitled to a casual loading or specific casual pay rate. It also explains the employee choice pathway for eligible casuals to move to permanent employment.

Practical sense check

Check the casual definition that applies when the employee starts.
Give casual employees the Casual Employment Information Statement at the required times.
Track eligibility for the employee choice pathway, including the 12-month timing for small business employers.
Do not use casual contracts to disguise what is really ongoing permanent work.

Employer checks

1
Start with the correct contract
Use a casual contract only where the role is genuinely casual under the current Fair Work rules.
2
Make the roster match the relationship
A long-running predictable roster can create risk if the paperwork says casual but the relationship behaves like permanent work.
3
Keep conversion and employee choice records
Record notices, responses, reasons and timing so you can prove the process was handled properly.
4
Review old casuals
Long-term casual arrangements deserve a periodic legal and operational check, especially after legislative reform.

Key takeaways

Good drafting matters, but current law matters more.
Casual status is a live compliance issue, not a one-time onboarding label.
The page should point employers toward current Fair Work guidance before action.

Common questions

Does a written contract now decide everything?

Not entirely. Later reforms and cases re-emphasise the totality of the relationship. But a clear, accurate contract that matches actual practice remains your best protection.

What should employers do after this decision?

Audit casual and contractor arrangements, make sure documents reflect reality, and get advice where someone engaged as a casual or contractor works like a permanent employee.

How Sprintlaw can help

Employment Contract Contractor Agreement