The court found that Mr Rossato was, despite being described as a casual in his contract of employment, was not a casual employee. This was in large part due to a firm advance commitment of future work, as he was provided with a roster showing his work shifts for up to a year in advance and accommodation near work sites.

Consequently, the court found that Mr Rossato ought to have been entitled to paid annual leave, sick leave and compassionate leave during his employment.

WorkPac tried to defend Mr Rossato's claim to leave entitlements by arguing the amount they paid him over the minimum rate of pay of a non-casual employee could "make up" for not getting paid leave. The court rejected this on the basis that paid leave provided by the Fair Work Act is not a purely monetary benefit. Rather, it is the right to be absent from work without financial penalty.

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This effectively means payments above the legal minimum will probably be insufficient to bar an employee wrongly classified as a casual from claiming the benefit of paid leave.

For a person still employed and found to have be wrongly classified as casual, the leave owed will take the form of a credit to their leave balance. For those reclassified as non-casual employees after their employment has ended, the leave will take the form of payment equivalent to the value of the payment that would have been made had they taken the leave during employment.

This decision could have profound impacts for employers and employees in the Hunter. Employers must be very careful at the outset of engaging staff that those staff are classified and paid as casual employees only where the circumstances of their work support this view. Employers should also review existing employment arrangements to make sure staff have been properly classified over the course of their employment.

Those employees engaged as casuals should seriously consider whether, when they started work, they knew ahead of time of the work they would be doing. If their employer gave a firm advance commitment of work it may be the case that the employee is, in fact, not a casual and entitled to leave.

These questions will turn heavily on the particular facts of each employment. Both employers and employees should seek legal advice on these issues.

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