On 18 December 2018, amendments to the Fair Work Act Regulations 2009 (Cth) came into effect to protect employers from casual employees ‘double dipping’ by receiving a casual loading and permanent benefits such as paid annual leave, in certain circumstances.
The changes to the Act were initiated after the Federal Court of Australia handed down a landmark decision in WorkPac Pty Ltd v Skene on 16 August 2018. The ruling effectively found a truck driver employed at a Rio Tinto mine under a labour hire arrangement as a casual, was not a casual under employment law, because of his regular and continuous pattern of work.
This gave effect to the annual leave entitlements under the Fair Work Act national employment standards which permitted the employee to double dip by receiving casual loadings but then also claiming leave for which loadings were supposed to replace.
The changes apply to former, existing and new casual employees. The new regulation allows employers to claim that an employee’s casual loading payments should be offset when working out the entitlements owing to the employee for the relevant NES entitlements.
In order for the entitlement to apply the following criteria must be met:
the employee is employed on a casual basis;
the employee is paid a casual loading in lieu of entitlements that casual employees are not entitled to under the NES;
the employee is found to be a full time or part-time employee despite being classified a casual by the employer;
the employee has made a claim to be paid for one or more NES entitlements.
Employers who fail to comply with these conditions will not be able to off set entitlements for casual employees.
If you have any questions or are unsure how these changes apply to your business, please contact the author for a free consultation.