In a decision welcomed by resources and energy employers, last week the High Court of Australia granted special leave for Workpac to appeal the Rossato decision, a landmark test case on whether casual employees can ‘double dip’ on employment entitlements.
“The Rossato double dipping decision will be one of the most important employment law decisions that the High Court has had to consider,” Steve Knott (pictured), Chief Executive of Australian Resources and Energy Group AREEA, said.
“The precedent set by the Federal Court in both the Rossato and Skene decisions overturned decades of common understanding about casual employment and suggested casuals could have two bites of the cherry – higher hourly pay rates and entitlements reserved for permanent employees.
“The High Court doesn’t grant special leave to appeal on a whim. This development shows there are serious and significant concerns with the Federal Court’s judgement that must be examined by the highest court in the land.
“Should the Federal Court’s decision stand, thousands of employers across all sectors of the economy would face the threat of backpay claims, estimated to be at least $18 billion.
“This is an imminent danger to the economy. Several massive class action lawsuits are already on foot, many driven by international professional litigants looking to cash in on Australian businesses failing.
“While widespread bankruptcies would always be devastating, the timing couldn’t possibly be any worse with our nation fighting to emerge from a once-in-a-lifetime recession.”
As the High Court considers the Rossato appeal, the Australian Government is also expected to deal with this issue through legislation and deliver the certainty that the private sector needs to hire and invest.
“The business community welcomes the Australian Government intervening in the Rossato appeal, clearly signalling its view that the Federal Court’s decision was misaligned to the intention of our employment laws,” Mr Knott said.
“We also congratulate the government for seeking to take this out of the court’s hands, and attempt to legislate against ‘double dipping’. The law should be amended to ensure employers can offset any future entitlements claims from former employees with casual loading already paid to them.
“Allowing casual employees to double dip, and forcing businesses to pay twice, doesn’t pass the pub test, the fairness test or any other measure of common sense.
“The sooner this is resolved, the sooner Australian employers can get on with rebuilding the economy and reducing unemployment.”
Attorney General and Minister for Industrial Relations Christian Porter said the Rossato decision could burden business up to $39 billion and highlighted it “has caused confusion and uncertainty for employers and their employees … during a period where businesses are facing their greatest ever challenge as a result of the COVID-19 pandemic”.
The appeal will be heard in 2021 but a decision may not be handed down until late in the year.
