The recent Federal Court Decision in WorkPac v Skene is causing concern for Ai Group Members and industry as a whole.
In the WorkPac v Skene case, the Federal Court held that the term 'casual employee' in the Fair Work Act 2009 (Cth) has no precise meaning and whether an employee is a casual for the purposes of the Act depends upon their employment circumstances. The Court ultimately found that Skene was entitled to annual leave even though he was engaged and paid as a casual employee.
Ai Group believes that such an interpretation is unworkable. The very widespread practice across nearly all industries is that an employee engaged and paid as a casual employee is a casual employee.
The decision creates significant uncertainty for businesses as it could lead to some employees who have been engaged and paid as casual employees making claims for annual leave and other entitlements under the National Employment Standards contained in the Fair Work Act 2009 (Cth).
Following the problematic decision of the WorkPac v Skene case, the Australian Government has produced the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) which amend the Fair Work Regulations 2009 (Cth) to insert a new regulation 2.03A.
The new regulation gives employers more protection against "double dipping" claims by casual employees by expressly allowing an employer to make a claim to offset the cost of any casual loading paid.
The new regulation operates from December 18, 2018 but, importantly, the regulation applies in relation to employment periods that occur before or after December 18, 2018.
There has also been a further important development since the Workpac v Skene Decision involving casual employment. In the WorkPac v Rossato Case, the Court will consider further arguments about the meaning of the expression 'casual employee' in the Fair Work Act 2009 (Cth) and also arguments about the ability for an employer to offset any casual loading paid against other entitlements that may be owed.
This case will provide an opportunity for all of the relevant issues to be considered by the Court including matters that were not fully explored in the WorkPac v Skene case. The Australian Government has intervened in the WorkPac v Rossato case, which Ai Group has publicly welcomed.
Ai Group members who are concerned about the ramifications of the Workpac v Skene Decision and the impact it may have on their casual employment arrangements can contact Ai Group's workplace relations consultancy team to mitigate the risks of claims by casual employees for annual leave and other entitlements under the Fair Work Act 2009 (Cth). Members may contact 3244 1757 or 3244 1730 to speak to a member of the Queensland workplace relations consultancy team.