The High Court has given an anti-climactic endorsement of the Federal Government’s ‘fixing’ of the casual definition issue by overturning the Full Federal Court decision in Rossato.
Basically, the High Court said you determine employment status by looking at the words of the contract, not the conduct afterwards. Put simply –if the parties agree the employee is a casual –they are a casual. This is very similar to the Federal Government’s legislative ‘fixing’ of the issue (which we have previously spoken about) although, as we are all finding at the moment, the legislative fix has a lot of ‘hoops to jump through’ to get to the position the High Court found.
Academic commentators have criticised the High Court decision for failing to have regard to the need to protect workers against superior bargaining power.
So, what does that all mean for business? Probably not much on the casual front as the legislative changes will set the parameters for workers covered by the Fair Work Act. But... for gig economy businesses or businesses seeking to outsource to contractors rather than employees it almost certainly indicates that the High Court is much more likely to endorse the position the parties have agreed to on paper rather than the practical reality of how they actually work. Watch this space.
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