Employers are now protected from casual employees ‘double-dipping’ under the Fair Work Act Regulations 2009 (Cth) (Regulations) effective 18 December 2018.
The Regulations have been amended following the full Federal Court’s decision in the now infamous case, WorkPac Pty Ltd v Skene.
What you need to know
The new Regulation allows employers to claim that the payment of casual leave loading (paid to casual employees), should off-set the payment of the National Employment Standards’ (NES) paid leave entitlements.
The good news
Employers are now well placed to defend a claim made by a casual employee for payment of the NES paid leave entitlements (annual and personal leave).
The new Regulation applies, if compliance is clearly evident. Employers must be able to demonstrate that they have met all of the criteria, as set out below:
- the employee is employed on a casual basis
- the employee is paid casual leave loading. (This is stated on the payslip and/or in a written employment agreement that casual leave loading is paid in lieu of the NES paid leave entitlements.)
- despite being classified ‘casual’, the employee was in fact a full-time or part-time employee for some or all of their employment
- the employee has made a claim to be paid for the NES leave entitlements that they did not receive for all or some of the time that they were incorrectly classified as a ‘casual’ employee
Source - Double dipping regulation – Cooper Grace Ward Lawyers – 7 January 2019
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