THE long-awaited High Court appeal in the Rossato coal "casuals" case began in Canberra on Wednesday, with labour hire firm WorkPac Pty Ltd seeking to overturn a Federal Court decision that was a major part of an employer push to have the federal government change the Fair Work Act.
The March 22 vote that amended the Act - after One Nation voted with the government to pass legislation called for by employer groups - also changed the landscape of the High Court case, as was noted at the start of the two days of hearings.
When counsel for WorkPac, Brett Walker, SC, began his opening remarks, the Chief Justice Susan Kiefel asked about "statutory amendments" passed since the court agreed in December to hear the WorkPac appeal.
Justice Kiefel said any orders the court might make were now "somewhat more limited than was the case" in December.
Mr Walker said the matter had "changed but perhaps more by way of a shift than a limit".
"As your honours are aware, the amendment under the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 in question includes what I will call a definition of casual employment but it is in terms which bears very close relation on comparison with the arguments of principle that we advanced below and would seek to advance here," Mr Walker said.
"So that the consideration by this court of those arguments will not be of historical irrelevance to a regime in which that definition operates, to the contrary. So, it has shifted it rather than confined it is the way we put it."
THE HIGH COURT APPEAL:
This week's case came after the Federal Court found that Mr Rossato's employment was "regular, certain, continuing, constant and predictable" - meaning he was eligible for the benefits of a full-time employee.
Employers had complained the decision opened the way for "double dipping" by employees they claimed had already been paid a 25 per cent "casual" loading.
As well as WorkPac as appellant and Robert Rossato as respondent, this week's case included the federal government as second respondent, followed by the CFMEU as third respondent and Matthew Petersen, the lead respondent in a separate class action by law firm Adero, joined to the case as fourth respondent.
Questioned by Justice Gageler, counsel for the government (through the Industrial Relations Minister), John McKenna, explained the government's submission on casual leave loading.
" . . . the purpose of the casual loading would again appear to be to provide casual employees, by instalments, with a source of funding to make it financially viable not to attend work and to take recreation time," Mr McKenna said.
"If that is right, then the statutory purpose of requiring payment under section 90(2) would appear to be sufficiently satisfied by the instalments in fact paid by way of a casual loading.
"A point raised against this in the judgements is a problem arising under section 92 of the Fair Work Act, a provision that prevents "cashing out" of an entitlement to paid annual leave, but in our respectful submission, that submission, or that approach, would seem to miss the point, because a cashing out of paid annual leave would seem to involve a transaction in which the payment is made in exchange for abandoning an entitlement to paid leave, and that is just not the present case."
The hearings continued yesterday, and concluded with the seven justices reserving their decision.
