October 2018

STOP PRESS: Government wades into casual confusion

The realm of casual employment has been a chaotic place lately. And it just got a little more political. For a quick recap, check out our bulletin (here).

On appeal, the Full Federal Court upheld the decision that WorkPac was required to provide its casual employee with leave entitlements associated with permanent employment. WorkPac decided not to appeal to the High Court.

It has now gone on the offensive. In a separate matter, WorkPac has filed proceedings in the Federal Court seeking declarations that:

  1. a former casual employee was not a permanent employee and therefore not entitled to leave; or

  2. if they were a permanent employee, the casual loading that was paid to employee could be used to ‘set off’ any annual leave entitlements they may have accrued.

In a welcomed twist, WorkPac has apparently pleaded that of the 25% casual loading paid to the particular employee, at least 5% represented compensation for personal and compassionate leave and 11% represented compensation for annual leave. Therefore, the employee should not be able to “double dip” and claim those benefits twice.

Now it is being reported that the Federal Industrial Relations Minister, Hon Kelly O'Dwyer MP, is intervening in Workpac's current matter.

In response to ‘the considerable concern across Australia's 3 million small businesses and given the impact it could have on job creation and existing jobs’, Ms O’Dwyer is reported to have made the Commonwealth a party to the current matter. In a statement made to Workplace Express, Ms O’Dwyer stated that it ‘must be made clear that the fundamental common law right to offset is available to small business employers if it faces claims to pay for the same entitlement twice’.

While some industry bodies such as the Australian Industry Group reportedly welcomed the intervention, Workplace Express is claiming that unions are displeased with the intervention. It is also reported that the CFMEU mining and energy division will also seek to intervene in the case.

Stay tuned for more updates on this legal showdown.

Authors: Amber Sharp and Jade Bond