New regulation affecting casual workers

In response to the Federal Court decision in WorkPac v Skene [2018] FCAFC 131, the Australian Government has introduced a new regulation into the Fair Work Regulations 2009.

The WorkPac v Skene decision held that whilst an employee’s Contract of Employment, modern Award or Enterprise Agreement may regard them as a casual employee, the established common law principles concerning ‘the nature of casualness’ and the specific circumstances of the situation must also be taken into account.

The Contract of Employment, modern Award or Enterprise Agreement that applies to the employee’s employment will not be the absolute authority when determining if the employment status is casual.

The new regulation 2.03A applies if:

  • A person is employed as a casual employee, and;
  • That person is paid a casual loading “that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant National Employment Standards (NES) entitlements during the employment period”, and;
  • The person must also have been employed as an “employee other than a casual employee for the purposes of the NES”.

If these criteria are satisfied, and the employee makes a claim to be paid an amount in lieu of say annual leave, the employer may then apply to have the loading amount taken into account when determining what should be paid by the employer to the person in lieu of such annual leave.

The intention behind regulation 2.03A is to avoid “double dipping”.

Employers must ensure their Contracts of Employment, individual flexibility arrangements or relevant Enterprise Agreements contain provisions outlining that casual employees are receiving separately identifiable loadings and make it clear what those loadings are paid in lieu of.

The new Regulation 2.03A took effect from 1 December 2018.  

Disclaimer: This summary is not legal advice and for more information on employment conditions, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.