In mid-2018, we notified you of the decision in in Workpac v Skene (2018) where a casual employee who was paid a casual loading was able to also recover paid annual leave under the Fair Work Act 2009 (Cth) because of his regular pattern of hours and expectation of continuing work.
This decision caused significant concerns amongst employers who employ casual employees, because of the potential ‘double dipping’ that could occur.
The Federal Government has now introduced a new Regulation in response to that decision which operates to eliminate the above concerns.
The Casual Loading Offset Regulation provides that 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 National Employment Standards (NES) entitlements, provided the following criteria is met:
1. The employee is employed on a casual basis;
2. The employee is paid a casual loading which is ‘clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements’
(for example, annual leave or personal leave);
3. Despite being classified by the employer as a casual, the employee was in reality a full-time or part-time employee for some or all of their employment for the purposes
of the NES;
4. The person makes a claim to be paid for one or more of the relevant NES entitlements that they didn’t receive for all or some of the time they were incorrectly classified as a casual.
