Casual employees ‘Double Dipping’

We have recently written about the decision of Workpac Pty Ltd v Skene which caused considerable concern for all employers who employed staff on a casual basis as it showed that casual workers in certain circumstances could receive the casual loading amount but then also make a claim for permanent benefits such as paid annual leave.

The Fair Work Act Regulations 2009 (Cth) have recently been amended to protect employers from this double dipping.  The amendments came into effect on 18 December 2018 and apply to former, existing and new casual employees.

The new regulation applies where all of the following criteria are met:

1. an employee is employed by their employer on a casual basis;
2. 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 personal or annual leave;
3. despite being classified by the employer as a casual, 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;
4. the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they didn’t receive for all or some of the time that they were incorrectly classified as a casual.

If all of these points are satisfied, 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 NES entitlements.

While the changes to the regulations will provide employers with an avenue for offsetting back-pay claims made by casual employees it will remain to be seen how these regulations are applied in a practical sense.

If you employ casual workers and would like practical advice on how you may be impacted by the recent developments in this area then please contact our team of experienced lawyers.