An important change has been made to Fair Work legislation affecting employers of casual employees

Following the decision made in WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Fair Work Act Regulations 2009 (Cth) has been amended to protect employers from casual employees “double dipping” by receiving casual loading as well as entitlements due to permanent employees, such as paid annual leave.

The new regulation enables an employer to claim that an employee’s casual loading payment should be offset when calculating the entitlements owing to the employee pursuant to the National Employment Standards (NES) if the employee was incorrectly classified as a casual employee. This can only occur if the following criteria are met:

The employee is employed on a casual basis;
They are paid causal loading in lieu of entitlements such as paid annual leave;
The worker is actually a permanent full-time or part-time employee for some or all of their employment despite being classified as casual;
The employee has made a claim to be paid for unpaid entitlements that they did not receive during the time they were classified as a casual employee.
It is essential that employers clearly set out the amount being made to the employee as casual loading in order to enable this amount to be off-set against any other benefits that may become payable if the employee is determined to be a permanent employee. Failing to do this may result in the employee receiving a higher casual rate of pay as well as other benefits that are usually reserved for permanent employees.

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