Earlier this year a Federal Court decided that a casual employee employed on a regular basis was entitled to annual and sick leave and the employer therefore had breached the Fair Work Act. Another casual employee from the same company also made a claim for annual leave entitlements and may succeed. This caused great concern for employers who employ millions of casual workers as it opened up the opportunity for millions of claims to be made for unpaid entitlements. Employers breathed a sigh of relief when the variation to the Fair Work Regulations 2009 was introduced a few days ago effectively preventing ‘any double dipping’.
Jos de Bruin, CEO Master Grocers Australia said, “We applaud the Federal Government’s prompt action in dealing with a matter that had the potential to destroy the livelihoods of thousands of small businesses. This new Regulation has alleviated the worry that these businesses could lose everything if there wasn’t some action taken to deal with a potential crisis.”
Mr de Bruin of MGA said, “All praise to Minister Kelly O’ Dwyer who took the initiative to introduce a new Regulation into the Fair Work Act, effective from 18th December 2018.” It states that if a casual employee is paid a casual loading it may be used to offset any claim for other entitlements under the National Employment Standards. This would effectively mean that having received a loading of 25% it would be taken as payment for any accrued entitlement to annual leave or sick leave and avoiding “double dipping.”
The new Regulation will apply where:
The employee is employed as a casual; and
Receives a loading that will compensate for entitlements due under the NES such as annual leave or sick leave; and
Because of the regular employment the employee can claim either full time or part time status; and
The employee makes a claim to be paid in lieu for entitlements such as annual leave and sick leave.
An employer will be able to have the casual loading paid to the employee considered when working out any entitlements due to the employee. This will apply to employment both before and after the making of the new Regulation.
Mr. de Bruin concluded that, ‘The retail sector would have been in dire straits save for some swift thinking on the part of the Government and at least this is some Christmas cheer for the retail sector”.