When a duck is not a duck: Differentiating contractors from employees

Earlier this month, the High Court handed down a landmark decision providing certainty on casual employment in WorkPac v Rossato & Ors [2021] HCA 23 (WorkPac v Rossato). In WorkPac v Rossato, the High Court rejected that the courts should focus on the “real substance, practical reality and true nature of that relationship” and found that the relevant test is to be determined by the terms of the employment contract.

This article examines the potential impact of this decision on the upcoming appeals the High Court will hear regarding the distinction between employees and contractors.

The WorkPac v Rossato decision

In WorkPac v Rossato, the High Court found that Mr Rossato, a long-term employee who WorkPac engaged on a “casual” basis, was correctly employed as a casual employee and therefore not entitled to entitlements for permanent employees. In doing so, the High Court upheld that casual employment is one where the employee has no “firm advance commitment” to ongoing