ARTICLE · 11 AUGUST 2021

High Court says contract is king

People + Culture Strategies

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When it comes to determining whether or not an employee is a casual or permanent employee, the contract is king.

AustraliaEmployment and HR

Rohan Burn

In a decision crystalising the importance of the terms of employment contracts, the High Court of Australia ("HCA") has determined that the Full Federal Court of Australia (the "FCA") wrongly decided the cases of Workpac and Skene and Workpac and Rossato because the decisions should have looked to the terms of the written contract to determine the character of the employment relationship, rather than looking at the conduct of the parties to the employment relationship. When it comes to determining whether or not an employee is a casual or permanent employee, the contract is king.

From the outset, it is important to note that the recent amendments to the Fair Work Act 2009 (Cth) (the "FW Act") to include a definition of a "casual employee" did not apply to Mr Rossatto due to an exception related to Mr Rossatto's previous FCA decision.

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