The Workpac v Skene [2018] FCAFC 131 decision from early this year was challenging for many employers of casual staff. In this decision, it was effectively found that an employee who had been paid and classified as a casual, should have been classified as a permanent employee, and was then awarded paid leave entitlements.

This was of concern to many employers given that casual employment isn’t well-defined in the award system or under the National Employment Standards (NES). With many modern awards now having a casual conversion request clause, further clarity around what does and doesn’t constitute casual employment could be on the cards for 2019.

 

The new Fair Work Amendment (Casual Loading Offset) Regulations 2018 came into effect on 18 December 2018. In these regulations, employers who have incorrectly classified employees as casuals instead of full time or part time (permanent) employees, may be able to make a claim that the casual loading already paid should be offset against the value of NES entitlements, such as paid annual leave and personal/carers leave.

 

According to the Fair Work news update, the regulation 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 personal or annual leave
  • 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
  • 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.
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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.

 

The new regulation applies to time worked both before and after the commencement date of 18 December 2018.

 

Visit the Federal Register of Legislation to read the Fair Work Amendment (Casual Loading Offset) Regulations 2018

 

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