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Legal win for freedom of contract | #relationshipscams | #dating | romancescams | #scams


Credit to the High Court for fixing the casual double dipping confusion created by lower courts and restoring the concept of contract law. In so doing, the High Court thankfully has disposed of one of the greatest union scams attempted in Australia that would have forced business to cough up potentially tens of billions of dollars of unpaid holiday pay to casual workers who had enjoyed casual pay loadings to compensate them for the lack of holiday pay. Hence the double dipping.

Justice Mordecai Bromberg’s “practical reality” ruling in Rossato was dismissed as “obscurantism”. Supplied

Wednesday’s unanimous full bench ruling reversed two Federal Court decisions, WorkPac Pty Ltd v Skene and WorkPac Pty Ltd v Rossato, concerning labour hire in the mining industry. These decisions overturned the Fair Work Commission’s long-established definition that a casual worker essentially is someone who receives casual pay conditions. But the Federal Court instead decided that even if already paid the 25 per cent casual loading, casual workers who had a firm commitment of work in advance weren’t really casuals at all, and so deserved to be back paid for their permanent worker entitlements. The Morrison’s government’s legislated solution to this unsustainable finding clarified the definition of a casual worker and made it retrospective. But this also left the class action sharks circling towards a constitutional challenge under Section 51 – the clause made famous by the movie The Castle – alleging unjust appropriation of property rights.

The High Court has now ended the legal mess with its common sense ruling that a casual employment relationship is determined by the written contract. Hence no property rights have been appropriated. To meet the Fair Work definition of a permanent employee, the firm advance commitment of work must be found in the binding terms of the written contract. This is a victory for freedom and primacy of contract. For all aspects of commercial life, it is important that contracts mean what they say. The practical benefit in this case provides certainty for employers who had every right to think they had fully met their legal obligations under Australia’s legalistic industrial relations system.

It’s also a rebuff for Federal Court Justice Mordecai Bromberg, whose “practical reality” ruling in Rossato was dismissed as “obscurantism”. A former Labor candidate appointed to the bench by the Rudd government in 2009, Justice Bromberg recently ruled that Environment Minister Sussan Ley had a duty of care, found nowhere previously in the common law or on the statute books, to protect children from climate change. So Wednesday’s High Court ruling is also a win for black letter law against judicial activism and adventurism.

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