There has been much commotion surrounding the recent decision of the Federal Court of Australia in Workpac v Skene (discussed in our previous article).

You know, the one that opened a can of worms saying a casual worker who received casual loading payments could double dip and say “I’d like a dollop of annual leave with that”.

In response to the decision, the Federal Government amended the Fair Work Regulations 2009 (by way of the Fair Work Amendment (Casual Loading Offset) Regulations 2018) to address the problem of double-dipping.

Under the amended regulations, employers can use evidence of casual loading payments to offset certain National Employment Standards (NES) entitlements alleged to be owed to a casual employee, if they are subsequently found to be a full-time or part-time employee.

The new regulation, which came into effect on 18 December 2018, will apply to employees and employers under the following circumstances:

  1. the individual is employed by an employer as a casual employee;
  2. the employer pays the individual a loading amount which is clearly identifiable as an amount paid to compensate the individual for not receiving one or more of the NES entitlements;
  3. during all or some of the employment period, the individual was in fact an employee, other than a casual employee for the purposes of the NES; and
  4. the individual makes a claim for an amount in lieu of one or more of the relevant NES entitlements.

If all of the above criteria are met, employers will be entitled to apply for the casual loading payments previously paid to an employee, set off against the NES entitlements claimed.