An important decision was handed down by the High Court yesterday in the WorkPac v Rossato case. The decision overturns the Federal Court’s controversial ruling that Mr Rossato was not a casual employee, and was therefore entitled to the benefits of continuing employment such as annual and personal leave, notwithstanding he received a causal loading.
The Federal Court’s decision sparked concerns by employers that they might be required to pay casual employees benefits of a continuing worker as well as the 25% leave loading. Yesterday’s judgment now resolves the threat of casual employees ‘double-dipping’, confirming that contracts are decisive in determining employment types, rather than any subsequent conduct. Employers will now enjoy the clarity that where they and their employees have committed to the terms of employment within a written contract, it is those terms that one must look at when determining the type of employment relationship.
The ruling brings the common law meaning of a ‘casual employee’ closer to the recently amended definition found within the Fair Work Act 2009 (Cth). Following these developments, a ‘casual employee’ is an employee who has no firm advance 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.
Casual employees can however continue to benefit from the mechanism introduced earlier this year, requiring employers to offer casual employees the choice to become permanent where:
- The employee has been employed for 12 months; and
- During at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee,
and there are no reasonable grounds for the employer to not offer conversion.
Workdynamic is assisting a number of employers assess their casual employee pool prior to the 27 September 2021 deadline, and we would be happy to discuss your organisation’s needs.
Amid rising awareness of sexual harassment in the workplace, organisations are increasingly turning to the legal profession for advice and investigations following complaints and disclosures from employees and other stakeholders. Jane Wright, Director and Principal at Workdynamic Australia, emphasises the need for employers to take a serious look at how they are handling investigations of sexual assault and harassment within their own workplace.
“Given the often highly contested nature of sexual harassment and assault claims, employers frequently turn to an independent investigator to ensure a procedurally fair and unbiased assessment. Both the complainant and respondent are deserving of the matter being appropriately investigated in a timely and sensitive manner”, said Wright. “The public mood in support of complainants coming forward and disclosing these matters needs to be matched by the integrity and professionalism of how the disclosures are handled, once made.”
Wright has been investigating historical and current sexual assault and harassment claims for nearly twenty years within some of Australia’s largest public and private workplaces. She says Australian workplaces, now more than ever, are coming under the microscope in the way they address such allegations. “Considering the significant legal and reputational risk that can eventuate if allegations of this magnitude are substantiated, it is crucial that employers are handling reports of sexual harassment and assault seriously and properly”, said Wright. She warns employers that delayed and improperly conducted investigations can not only have grave consequences for both employee welfare and safety, but also the health of the organisation.
She said organisations that are trying to ‘tick’ a box or are reluctant to change outdated procedures will simply not do anymore. The overlapping regulatory regimes concerning areas such as work health and safety, whistleblowing, harassment, and procedural fairness in Australian workplaces demands a sophisticated approach. Wright believes that in these cases, employment lawyers can be a real benefit to Australian workplaces struggling to keep up. “At Workdynamic, we work with our clients to update policies, provide training on appropriate workplace behaviours, and give guidance to existing human resources personnel on how best to handle investigations of sexual harassment”, said Wright. “We support clients to be proactive, acting ahead of scandal or harm to anyone involved, and having in place best practice responses if a disclosure like this is made.” She stresses that if claims of sexual harassment or assault are not properly investigated, it can leave employers exposed to great legal risk.