Issue 39 2020 - Casuals and Paid Leave – High Court Grants Leave to Appeal the Rossato Case

Updated: Dec 2, 2020


On 26 November 2020, the High Court granted special leave to appeal the Full Federal Court decision in WorkPac Pty Ltd v Rossato. [1] That ruling had established that an employee could be categorised and paid as a casual employee under an enterprise agreement, contract or award – but not be a casual for NES level entitlements.


After Rossato, many employers feared that the floodgates would open for some employees to “double dip” by being paid their casual loading as well as being entitled to paid personal leave and annual leave. Employers are concerned that they could have a large potential liability.


As a consequence, enterprise agreement clauses have been called into question, and approval of enterprise agreements has become more problematic.


The granting of permission to appeal is very fresh; at this stage we do not have details of any timetable. It is unlikely that an outcome will be known sooner than the middle of 2021.


In the meantime, the Rossato Decision stands as the current law. We have previously published EMA Notes and we ran a webinar on the case and its implications.


If you are unsure about what to do, we recommend that you seek advice about your specific circumstances.


Require further information/assistance?

If you require further information or specific advice about your situation, please contact one of our consultants.


[1] [2020] FCAFC 84

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