WorkPac Pty Ltd v Rossato: binding contract terms decide casual employment and who the employer is

Why is WorkPac Pty Ltd v Rossato relevant to workplace disputes in Australia?

The decisions OnNotice has reported cite WorkPac Pty Ltd v Rossato for the meaning of casual employment: the absence of a firm advance commitment about how long the employment will last or the days or hours the employee will work, with no reciprocal commitment from the employee. They also cite it for a wider point: an employment relationship is characterised by the binding terms of the contract, not by hopes, expectations or the practical reality of how the work was done.

It appears in general protections dismissal claims involving labour hire before the Fair Work Commission, in long service leave underpayment appeals, in sham contracting proceedings brought by the Fair Work Ombudsman, in disputes about which company in a corporate group was the true employer, in appeals about the end of a series of fixed-term contracts, and in disputes about whether a worker was an employee or an independent contractor.

How the Commission and the courts use it

Type of matter	What the decision said	What it means
General protections, dismissal (s.365), labour hire [2026] FWC 3677	“termination of the employment relationship may be obscure where no further shifts are offered to the casual employee” (the Commission)	The Commission cited the case beside the statutory definition of a casual employee when deciding whether a casual’s employment had come to an end.
Appeal from decision of South Australian Employment Court, long service leave entitlements [2026] FCAFC 131	“The essence of casual employment, in the meaning that it has under the general law, is the absence of a “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”” (the Full Court)	The Full Court relied on the case for the general law meaning of casual employment when working out long service leave pay.
Sham contracting, whether company was engaging entity [2026] FCA 1452	“addressing cases which had considered the approach to identifying the engaging entity following the High Court’s decisions in WorkPac Pty Ltd v Rossato” (Meagher J)	The Court applied the case, with two later High Court decisions, to identify which entity engaged the cleaning workers, found the company was not the engaging entity and dismissed the application.
Which company in corporate group was the true employer [2026] FCA 1110	“the High Court has emphasised the importance of looking to the contractual terms in order to characterise certain relationships in the employment context. But these decisions are distinguishable and do not affect the principles under consideration here” (the Court)	The Court treated the case as distinguishable when deciding whether a holding company named on employment contracts was in reality the employer.
Judicial review, series of fixed-term contracts [2024] FCAFC 161	“That appeal to notions of “practical reality” was given short shrift” (the Full Court)	The Full Court relied on the case to hold that termination of employment means the contract of employment being brought to an end.
Employee or independent contractor [2022] HCA 2	“this expansive approach involves an unjustified departure from orthodox contractual analysis” (Kiefel CJ, Keane and Edelman JJ)	The High Court cited the case to reject an expansive substance and reality approach when deciding whether truck drivers were employees.

Key principles and takeaways

• The Full Court in [2026] FCAFC 131 said casual employment under the general law is the absence of a firm advance commitment about duration or the days or hours of work, and of any reciprocal commitment from the employee.
• The Full Court in [2024] FCAFC 161 said the plurality rejected the “practical reality” approach and required a binding promise, not a hope or expectation, to fix the nature of employment.
• In [2022] HCA 2, Kiefel CJ, Keane and Edelman JJ said, citing the case, that an expansive search for the substance and reality of a relationship departs from orthodox contractual analysis.
• The Full Court in [2024] FCAFC 161 said the termination of a person’s employment can only be understood as the contract of employment being brought to an end.
• Meagher J in [2026] FCA 1452 applied the case to identifying the engaging entity, while [2026] FCA 1110 treated it as distinguishable on whether a company named in a written contract was in reality the employer.

What the Court decided

A production worker employed by labour-hire company WorkPac from 28 July 2014 until he retired on 9 April 2018, working shifts fixed by rosters issued up to a year in advance, was a casual employee. The High Court of Australia reached that conclusion on 4 August 2021 because the written terms of his engagement gave no commitment to work beyond each assignment.

In WorkPac Pty Ltd v Rossato [2021] HCA 23, the Court allowed WorkPac’s appeal and set aside the orders the Full Court of the Federal Court of Australia made on 29 May 2020. In their place it declared that “Mr Rossato was a casual employee for the purposes of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) in respect of each of the six assignments with WorkPac Pty Ltd between 28 July 2014 and 9 April 2018”, and that he was a “Casual Field Team Member” for the purposes of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012. The Court noted: “No order as to costs was sought.”

The joint reasons of Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ (the plurality) held that the search for a firm advance commitment “must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement.” Gageler J agreed with the orders but decided the appeal on a narrower basis. The appeal was heard on 12 and 13 May 2021.

Six assignments at two Queensland mines

WorkPac is a labour-hire company whose business includes supplying its employees to black coal mining firms. Its customers include Glencore, operator of the Collinsville and Newlands mines in Queensland. The Court described Mr Rossato as “an experienced production worker in the open-cut black coal mining industry”. WorkPac placed him at one mine or the other, and treated him as a casual throughout.

He applied online on 21 December 2013. Two days later, at WorkPac’s Mackay office, he signed a declaration agreeing to a document titled “Casual or Maximum Term Employee – Terms and Conditions of Employment” (the General Conditions). He then worked under six contracts, or assignments, each a written notice of offer of casual employment (NOCE). The first ran at Collinsville from 28 July 2014. After Glencore flagged possible workforce reductions there, WorkPac encouraged him to move to Newlands, where the second and third NOCEs applied, the third with a lower rate of pay. The fourth, fifth and sixth NOCEs returned him to Collinsville after a shutdown, the last running until his retirement.

He worked in crews made up of both Glencore and WorkPac employees, all doing the same production operator duties under a Glencore supervisor. He drove in and out of the sites and stayed in accommodation Glencore provided. Most of the time he worked a “7/7 roster” or a “5/5/4 roster”. Glencore issued each site’s rosters for a full year late in the preceding year. Apart from mine closures, his rostered hours changed on only a small number of occasions, including training, a weather stand-down and a period in 2018 when he left to care for his seriously ill partner. Outside those occasions, neither WorkPac nor Glencore ever asked whether he intended to work a rostered day, and he never asked whether he would be needed.

Leave, public holidays and an alternative claim to set off

On 16 August 2018 the Full Court of the Federal Court delivered judgment in WorkPac Pty Ltd v Skene, holding that another WorkPac employee treated as a casual was not a casual employee for the purposes of s 86. Relying on that decision, Mr Rossato wrote to WorkPac on 2 October 2018 claiming payment for untaken annual leave, public holidays, and personal and compassionate leave taken during his employment, under the Act and the Enterprise Agreement.

WorkPac denied the claims and sought declarations that he had been a casual throughout, was not entitled to those payments, and had been paid at a rate incorporating a 25 per cent casual loading in lieu of them. In the alternative, it sought declarations that it could set off the payments it had made against his entitlements, or recover in restitution the amounts paid above what a permanent employee would have received.

On 21 December 2018 Allsop CJ directed that the matter be heard by a Full Court and granted leave to intervene to the Minister and the CFMMEU. On 26 March 2019 Bromberg J granted leave to intervene to the fourth respondent, who brings a class action against WorkPac for employees said to have worked in circumstances like those in Skene. WorkPac sought only declarations, and agreed to pay Mr Rossato agreed amounts if he succeeded, and his costs.

The Full Court (Bromberg, White and Wheelahan JJ) found Mr Rossato was not a casual employee, declared him entitled to the payments claimed, and rejected the set-off and restitution claims. WorkPac appealed on both points. Because the plurality allowed the appeal on the basis that Mr Rossato was a casual, it said “it is unnecessary to consider WorkPac’s alternative ground of appeal.”

• 21 Dec 2013 Mr Rossato applies to WorkPac.
• 28 Jul 2014 First assignment begins at Collinsville.
• 9 Apr 2018 Mr Rossato retires.
• 16 Aug 2018 Full Court decides WorkPac Pty Ltd v Skene.
• 2 Oct 2018 Mr Rossato claims leave and public holiday entitlements.
• 21 Dec 2018 Matter directed to a Full Court.
• 29 May 2020 Full Court orders in Mr Rossato’s favour.
• 12 and 13 May 2021 High Court hears the appeal.
• 4 Aug 2021 High Court allows the appeal.

The test both sides accepted

In both courts, the parties accepted that a casual employee under the Act is one with no “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”. The formulation came from Hamzy v Tricon International Restaurants, which stated: “The essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work.” The plurality said the question whether such a commitment existed was “pivotal to the resolution of this appeal”.

What divided the parties, as Gageler J put it, was whether the commitment had to be “an enforceable contractual obligation on the part of the employer”.

Expectations are not commitments

The plurality said a court “can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship.” To the extent Bromberg J had supported looking at the entirety of the employment relationship, “his Honour erred.”

White J had observed in the Full Court that the requisite commitment may involve “something more than an expectation.” The plurality said it was difficult to know what that meant if the “something more” was not a binding contract or variation. In its view, nothing non-binding could sensibly be called a commitment in a court of law. It added: “Some amorphous, innominate hope or expectation falling short of a binding promise enforceable by the courts is not sufficient to deprive an agreement for casual employment of that character.”

Insisting on binding promises, the plurality said, recognises that “it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences.” On bargaining power, it said: “It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain.” It observed that neither Mr Rossato nor the interveners relied on the doctrines of unconscionability or undue influence.

The plurality made three further points: express terms must be given effect unless contrary to statute; implied undertakings cannot be inconsistent with express terms; and undertakings inferred from conduct may take effect as contractual variations. “It is because contracts, whether as originally agreed or as varied, create binding obligations that they constitute ‘firm advance commitments’.” It said White J’s reliance on “unspoken mutual undertaking[s]”, shared contemplations and expectations “signals a departure from orthodox legal analysis.”

Regular and systematic work fits the Act’s idea of a casual

The plurality said the issue was ultimately one of statutory interpretation, and noted that the Act then contained no definition of “casual employment”. It pointed to s 65(2), under which a casual can request changes in working arrangements only as a “long term casual employee” with “a reasonable expectation of continuing employment by the employer on a regular and systematic basis”. That expectation, it said, is “entirely consistent with an employee’s status as a casual” and “remains an expectation only and falls short of a ‘firm … commitment’.” It made similar observations about ss 67(2) and 384(2)(a).

These were, the plurality said, “strong indications that a mere expectation of continuing employment, however reasonable, is not a basis for distinguishing the employment of other employees from that of a casual employee.” It noted that no member of the Full Court had treated these provisions as bearing on the nature of the commitment.

Skene “strayed from the orthodox path”

In Skene, the Full Court (Tracey, Bromberg and Rangiah JJ) adopted the Hamzy statement and said the usual indicia of casual work, “irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability”, are manifestations of the absence of a firm advance commitment. It said characterisation required assessing “[t]he conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship”, borrowing the approach used to separate employees from contractors.

The High Court plurality said that in taking that approach “the Full Court in Skene strayed from the orthodox path.” None of the authorities Skene relied on involved parties who had committed their relationship to a written contract and then adhered to it: “In such a case, it is to those terms that one must look to determine the character of the employment relationship.” On that point, it agreed with WorkPac that Skene had been wrongly decided. It said White J had “rightly” observed that the Act contemplates employer and employee knowing their obligations at the start of employment, but that he was nonetheless influenced by Skene’s approach, “which, for reasons which follow, was erroneous.”

Three clauses decided it

Clause 5.1 of the General Conditions said employment was on an “assignment-by-assignment basis, with each assignment representing a discrete period of employment on a Casual or Maximum Term hourly basis”. Clause 5.3 let the employee accept or reject any offer. Clause 5.5 provided: “On completion of an assignment, whether satisfactory or otherwise, WorkPac is under no obligation to offer any other assignment/s.”

The plurality called these “critical”. Once they bound the parties according to their ordinary meaning, “on a straightforward application of the test which the parties accepted to be the hallmark of casual employment, Mr Rossato was a casual employee.” Clauses 5.6 and 5.12, allowing an assignment’s period to be varied, or the assignment terminated, on one hour’s notice, reflected the same absence of commitment.

White J had relied on cl 5.4, under which the employee agreed to complete an accepted assignment and WorkPac reserved a right to recover costs if he did not. The plurality said that in so concluding “his Honour erred”. Read with the one-hour termination right in cl 5.12, cl 5.4 “cannot be understood to impose an obligation on an employee to work beyond the completion of an assignment”.

Rosters given “inordinate emphasis”

The Full Court had treated the fixed, long-advance rosters as strongly indicative of a firm advance commitment. The plurality said the rosters were “of limited significance” and the Full Court “placed inordinate emphasis” on them. Glencore’s rosters “fell well short of being, even arguably, a contractual promise” that he would be entitled or required to work all the shifts listed.

The regularity and systematic organisation the rosters gave each assignment were “entirely compatible with the notion of ‘casual employment’ in the Act.” Mr Rossato “might fairly be said to have had, over time, a reasonable expectation of continuing employment on a regular and systematic basis”, but that was not a firm commitment beyond the particular assignment. In its conclusion, the plurality said: “In carrying out each assignment, Mr Rossato worked as a casual employee.”

The casual label and the 25 per cent loading

The first and second NOCEs paid a flat rate of $49 per hour, said to include “casual loading (refer to Schedule 2 for more information on your casual loading)”. The third paid a “Casual Rate” of $43.05 for normal time, time and a half and double time alike. Schedule 2 broke a 25 per cent loading into 11% in lieu of annual leave and leave loading, 5% in lieu of personal leave, 4% in lieu of notice of termination, 2.5% for “the itinerant nature of casual work” and 2.5% in lieu of redundancy. Clause 6.4.6 of the Enterprise Agreement contained the same breakdown.

The plurality said whether employment is casual “is not determined by the ‘label’ which the parties choose to attach to their relationship”, although the label “might be a factor which influences the interpretation of their rights and obligations.” It then pointed to the casual loading paid under cll 6.4.5 and 6.4.6, which were incorporated into each NOCE. Agreeing to a loading in lieu of entitlements “whose rationale presupposes an ongoing working relationship”, such as paid annual leave, was “a compelling indication by the parties that their relationship did not include such a commitment.”

Union and class action arguments rejected

The CFMMEU submitted that casual status should be assessed when the disputed entitlements arose, not when the contract was made, and that the Skene approach should be applied. The plurality said that would mean the parties “would not know until a court pronounced upon the question”, which “does not accord with elementary notions of freedom of contract”.

The fourth respondent relied on Hollis v Vabu Pty Ltd, which considers the “totality of the relationship”, and on Doyle v Sydney Steel Co Ltd. The plurality said the question in Hollis v Vabu affected the rights of third parties, and that its analysis “affords no assistance, even by analogy” where the terms are committed comprehensively to written agreements. Of the observation in Doyle that the question depends on “all the facts and circumstances”, it said this “is not to say anything very helpful at all”, and traced the prevailing view to Dixon J in Shugg.

Gageler J took a narrower route

Gageler J said the question “was of national importance at the time of the grant of special leave to appeal” but that its importance diminished once a definition of “casual employee” was inserted into the Act. He said the employment relationship has not been “subsumed within the law of contract”, and that whether the commitment had to be an enforceable contractual obligation “cannot be resolved by reference merely to the nature of the relationship of employment or the nature of judicial power.” His “preference is not to undertake that exercise if the rights of the parties can be determined without resolution of the issue. They can.”

He noted that Mr Rossato relied on the roster system only to show a commitment as to hours, and on the contract terms alone to show a commitment as to duration. He said: “I agree with the plurality that the terms of each contract of employment contained nothing to oblige WorkPac to continue each contract of employment beyond completion of the assignment to which each contract related.” That was enough to negative any firm advance commitment to indefinite employment, and he agreed with the orders the plurality proposed.

Amendments that arrived mid-appeal

The plurality noted that the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) came into effect after the appeal was filed but before it was heard. It inserted a definition of “casual employee” and required compensation for permanent entitlements, payable to an employee mistakenly treated as a casual, to be reduced by any identifiable casual loading paid. Employees such as Mr Rossato, already found by a court before commencement not to be casuals, are outside the amendments; for others they operate retrospectively, with limited exceptions. Their stated intention was a definition that “incorporates key aspects of the common law as expressed in … Skene and Rossato” and “a statutory offset mechanism so that employers will not have to pay twice for the same entitlements”. WorkPac did not argue that the amendments supported its construction.

Gageler J said the new definition had stripped the Full Court’s decision and Skene of precedential effect, and that the High Court’s own decision “will have significance for few other than the parties.”

Source: [2021] HCA 23

General information only. OnNotice reports developments in Australian industrial relations, human resources and workplace law. This article is for education purposes only and is not intended to form professional advice. Always confirm against the primary source and seek specific advice relating to your circumstances.