This case has attracted numerous “shock, horror” comments in the media that suggest that casual workers are now entitled to be paid the 25% casual loading in addition to enjoying the paid leave entitlements of a permanent employee.
That proposition is simply wrong.
The Court determined that, for all relevant purposes under the Fair Work Act and the applicable enterprise agreement, Mr Rossato was not a casual employee and was therefore entitled to paid annual leave, personal leave, compassionate leave and payment for public holidays. In other words, he was entitled to the benefits of a permanent employee because he was a permanent employee.
This raised the question of whether WorkPac should be able to reclaim the 25% casual loading it had paid Mr Rossato and to which he was, as a permanent employee, not entitled. WorkPac sought to recover the casual loading based on principles of “set off”, mistake and failure of consideration, each of which were dismissed by the Court.
The result is quite clear. If your employee is truly a casual employee, he or she will be entitled to payment of the casual loading but not (absent any contractual entitlement) to paid leave. On the other hand, if you engage a person on a permanent employment arrangement but, for one or other reason, designate her or him a casual employee, you may, in the absence of a well drafted “set-off” clause, have to grant the employee leave entitlements in addition to the casual loading.
It will be interesting to see whether an appeal or legislative amendments follow.