In December 2018, new Regulations came into effect preventing casual employees from ‘double-dipping’ by claiming permanent employee entitlements on top of their casual loadings.
The new Regulations to prevent double-dipping apply where an employee:
- was employed on a casual basis and paid a casual loading; and
- makes a subsequent claim to be paid entitlements under the National Employment Standards (NES) which casual employees would otherwise not be entitled to receive.
In such circumstances, the new Regulations provide that the employer will be able to:
- have the casual loading amount taken into account in respect of any underpayment claim
- offset it against any amount found to be payable to the employee such as annual leave
The new Regulations apply to any underpayment claims arising from employment that occurred (whether wholly or partly) before, on or after the commencement of the new Regulations.
The Regulation was introduced following the recent ruling of the Federal Court in the decision of Workpac v Skene where:
- the employee had been engaged as a casual and had been paid a 25% casual loading by the employer throughout his engagement
- following the termination of his employment, the employee claimed that his working arrangements were not properly ‘casual’, and claimed various NES entitlements which he had not received during his employment such as annual leave
- the Court found in favour of the employee and ordered the employer to pay both the employee’s annual leave entitlements plus a penalty – in doing so the Court refused to take into account the casual loading amount paid to the employee during his engagement
Although the Regulations will not prevent an employee from making these claims, they will likely limit the monetary value of such claims, since the amounts recoverable by an employee may be reduced by the loading paid to the employee during the period of employment.
In addition, it is still vital that employers ensure employees are correctly classified as a casual lest other difficulties arise.