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New Fair Work regulation introduced in response to Workpac v Skene case

By Hannah Pelka-Caven on February 6th, 2019
  1. Industrial Instruments
  2. Fair Work Act

 

The Federal Government has introduced the Fair Work Amendment (Casual Loading Offset) Regulations 2018 in response to the recent Workpac v Skene (2018) decision.

The court in this case ruled that an employee who was treated as a casual, and paid a casual loading, was in fact entitled to paid annual leave under the Fair Work Act 2009 (Cth) because of his regular pattern of hours and expectation of continuing work.

This decision caused significant concerns amongst employers reliant on casual labour, who were worried about the financial impact of potentially having to back pay entitlements to misclassified casuals who were also paid an additional casual loading. A situation which many employers and commentators referred to as ‘double dipping’.

The Casual Loading Offset Regulation provides that an employer can make a claim to have the casual loading payments made to the employee taken into account when working out the entitlements owing to the employee for the relevant National Employment Standards (NES) entitlements.

This can occur where the following criteria are successfully met:

  1. The employee is employed on a casual basis;
  2. The employee is paid a casual loading which is ‘clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements’ (for example, annual leave or personal leave);
  3. Despite being classified by the employer as a casual, the employee was in reality a full-time or part-time employee for some or all of their employment for the purposes of the NES;
  4. The person makes a claim to be paid for one or more of the relevant NES entitlements that they didn’t receive for all or some of the time they were incorrectly classified as a casual.

This regulation came into effect on 18 December 2018. However, it applies to all employment periods including those that occurred wholly or partly before that date.

Do you employ casual staff?

If you do, you must know about the vital information in chapter C4 Casual Employment in the Employment Law Practical Handbook.

The Handbook is available on a free, no-obligation trial if you aren’t a subscriber.

 





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