Employers who incorrectly classify employees as casual instead of full-time or part-time could be responsible for back paying various entitlements under the National Employment Standards (NES), following a recent Federal Court of Australia decision in Workpac v Skene  FCAFC 131 .
However, the Government has varied the Fair Work Regulations 2009 to clarify that employers, in certain circumstances, may claim that an employee’s casual loading payments should be offset against certain NES entitlements owing to the employee.
This regulation comes into effect on 18 December 2018.
How does the new regulation work?
The new regulation applies where all of the following criteria are met:
- an employee is employed by their employer on a casual basis
- the employee is paid a casual loading that is clearly identifiable as being an amount paid to compensate the person in lieu of entitlements that casual employees are not entitled to under the NES, such as personal or annual leave
- despite being classified by the employer as a casual, the employee was in fact a full-time or part-time employee for some or all of their employment for the purposes of the NES
- the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they didn’t receive for all or some of the time that they were incorrectly classified as a casual.
If all of these points are satisfied, an employer can make a claim to have the casual loading payments made to the employee taken into account when working out the entitlements owing to the employee for the relevant NES entitlements.
The new regulation applies to employment periods that occurred before, or that occurred on or after, 18 December 2018.