New Law Introduced To Prevent Casual Employees Double-Dipping: What You Need To Do Now

New Law Introduced To Prevent Casual Employees Double-Dipping: What You Need To Do Now

On 18 December 2018 the Government varied the Fair Work Regulations 2009 to allow employers, in certain circumstances, to offset the casual loading paid to an employee against certain entitlements that may otherwise be owed to the employee if they are found in the future to be a permanent employee. This change to the law has been introduced in reaction to the case of Workpac v Skene [2018] FCAFC 131  where an employee classified as a casual employee (and paid a loading) was later found by the court to be a permanent employee. In that case the court ordered the employer to back pay the employee the annual leave he should have accrued, despite the fact that he had been paid a casual loading to compensate him for not being entitled to paid leave. Casual loading offsetting NES entitlements For employers to benefit from the new law, certain criteria need to be met including that: “the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period)”. The reference to “relevant NES entitlements” are to those matters set out in the National Employment Standards in the Fair Work Act 2009 which do not apply to casual employees and include entitlements such as paid annual leave and personal/carer’s leave, redundancy pay, etc. The new law acts retrospectively as well as going forward – so if an employee makes a claim in the future in respect of periods of employment in the past, the Regulations will still apply. In our view, there are two matters which employers will...