The Federal Government has recently introduced the Fair Work Amendment (Casual Loading Offset) Regulations 2018 in response to the Federal Court’s decision in WorkPac Pty Ltd v Skene [2018].
The Federal Court found that an employer’s payment of casual loading will not negate their obligations to pay additional entitlements to an employee who is found not to be a genuine casual employee.
In the Skene case, the employee was treated as a casual employee and paid the required casual loading that compensates for their ineligibility for entitlements that other employees enjoy through the National Employment Standards (NES), such as annual leave and sick leave.
However, as a result of the employee’s regular pattern of hours and expectation of ongoing work, the Court found that he was not a genuine casual employee and, as such, entitled to additional benefits under the NES.
Previously the law was unclear on whether an employer could seek to have the casual loading paid to the employee taken into account against a subsequent NES entitlement claim. The Skene case confirmed that an employer can make such a claim, and the Federal Government’s new Regulation sets out a framework for the court to consider.
The new Regulation applies retrospectively to all employment periods, as the Federal Government has explained that it is merely a declaratory regulation clarifying the existing law.
The Casual Loading Offset Regulation will now allow employers to make a claim to offset any owed entitlements by casual loading payments which have already been made. This can occur where the following criteria are met:
- The person is employed on a casual basis;
- The employee is paid a clearly identifiable casual loading in compensation for not having one or more relevant NES entitlements;
- During their employment period, the person was in fact an ‘employee other than a casual employee’; and
- The employee makes a claim to be paid an amount in lieu of their claimed NES entitlements.
If you are concerned about the status of any of your casual employees, you should seek legal advice. Call our office on 07 5444 1022 to arrange a meeting today.
Harry McDonald is a solicitor admitted to practice in the Supreme Court of Queensland, practising in the Commercial and Property Law team at Greenhalgh Pickard Solicitors. Within commercial law, Harry has a keen interest in employment law and enjoys assisting commercial clients in all areas of their employment & industrial relations with experience in employment contracts, sub-contractor agreements, restraint clauses, unfair dismissals, general protections, workplace policies and guidelines and general HR advice.