The High Court has at long last corrected a line of legal reasoning that put casual workers’ jobs at risk.
Since 2018, employers have been facing individual and class actions claims from casual workers who argued they were entitled to both the 25 per cent casual loading and the paid annual leave, paid personal and carer’s leave, and compassionate leave that a permanent employees are entitled to receive.
This double dipping on entitlements – which was the product of a decision written Justice Mordecai Bromberg in WorkPac Pty Ltd v Skene – placed the jobs of a huge number of casual employees in doubt.
Casual employees receive 25 per cent more pay per hour instead of the leave entitlements they would receive if they were a permanent employee. And many casual workers prefer the higher rate of pay now rather than a contingent right at some point in the future.
This decision created the prospect of employers having to back pay years of casual employees entitlements, despite having done all they could to properly compensate their casual workers. This would have led to many casual-dependent employers collapsing.
That would be in nobody’s interest.
And yet, the ACTU, CFMEU, and other unions, did everything they could to prevent the correction of this impractical ruling – even getting their Labor mates to obstruct the Morrison government’s legislation to solve the problem.
Australians can take heart from the 7-0 decision of the High Court in Workpac Pty Ltd v Rossato. The case involved an affected employer seeking a declaration that a casual employee – Robert Rossato – who was claiming traditional leave entitlements as back pay, was not entitled to this double-dipping.
The High Court unanimously found in favour of the employer, making it clear that binding contractual promises are the most reliable indicator of the character of an employment relationship.
This decision reaffirmed some of the simplest and clearest principles of contract law: that where there are express terms of a contract, they must be given effect unless contrary to statute; that implied terms cannot be inconsistent with the express terms of the contract; and that conduct subsequent to the time of the contract may be relevant to a variation, but not to the terms of the original contract.
With its decision, the court also made an important statement about the role of the judiciary: its role is to enforce legal obligations, not to act as an industrial arbiter that from time to time attempts to remake industrial bargains voluntarily and validly entered into.
This was a polite but firm reprimand to the Federal Court’s most persistent judicial activist.
Justice Bromberg was on the Federal Court full benches in both Skene and Rossato. His Honour is also responsible for some of the last decade’s most outlandish industrial relations authorities.
Justice Bromberg has jointly presided over a judgment holding that injuries sustained during vigorous sexual intercourse between public servants on an overnight work trip were a workplace injury.
In another, the bench on which he served held shift workers were entitled to a greater sick leave entitlement than regular workers – a decision the High Court argued would give rise to “absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility in the Fair Work Act”.
These decisions – and many more – have had to be overturned by the High Court. While justice was ultimately done, it comes at great cost to litigants, and generates the kind of uncertainty and fearfulness about the industrial climate that undermines the performance of our economy – and with it, the job prospects of Australians.
It’s also a recipe for putting regional Australia, trades and manual workers into poverty.
These cases highlight the need for our bench to be populated by judges who respect the role of Parliament and accept that their job is to interpret the Parliament’s work rather than attempt to usurp it. Judges who view themselves as tenured legislators do not belong on the bench.
The Morrison government has taken action to provide certainty for employers and support casual workers’ jobs. By passing laws to eliminate double dipping and give employees seeking greater stability the right to convert to permanent part-time, we have delivered far more for casual workers than the union activists behind these cases.
It’s time now for Labor to stop playing games that put Australians jobs at risk. It can do this by supporting reforms for project-long enterprise agreements and changes to better balance environmental concerns with the creation of new major projects.
Rossato has made it clear once and for all that Labor’s position on casual workers has no moral authority. Perhaps now the party will stop obstructing the measures needed to give working Australians the kind of choice that comes with a growing economy.