As foreshadowed in our earlier article, the Fair Work Act Regulations 2009 (Cth) have been amended 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 change came into effect on 18 December 2018. 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. This applies where all the following criteria are met:

  • an employee is employed by their employer on a casual basis
  • the employee is paid a casual loading that is clearly identifiable as being an amount paid to compensate the person in lieu of entitlements that casual employees are not entitled to under the NES, such as paid personal or annual leave
  • despite being classified by the employer as a casual employee, the employee was in fact a full time or part-time employee for some or all of their employment for the purposes of the NES
  • the employee has made a claim to be paid for one or more NES entitlements (that casual employees do not have) that they did not receive for all or some of the time that they were incorrectly classified as a casual employee.

This change was introduced following the Full Federal Court’s decision in WorkPac Pty Ltd v Skene.

Failure to comply with these requirements will prevent employers from the benefits of the off-setting regulation. Please contact our workplace relations and safety team to make sure you comply with these requirements.

Casual conversion legislation – have you issued the required notice to your regular casual employees?

Further to our previous article about the insertion of casual conversion clauses into modern awards, regular casual employees, employed as at 1 October 2018, must have been provided with a copy of the casual conversation clause in their modern award by 1 January 2019.

A regular casual employee is a casual employee who has, in the preceding 12 months, worked a pattern of hours on an ongoing basis that, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee.