The Federal Government has changed the Fair Work Regulations 2009 with effect from 18 December 2018 so that employers can set off casual loadings against certain NES entitlements. This change goes some way to address the fallout from the decision in Workpac v Skene and will assist employers respond to claims by casual employees for permanent employee NES entitlements, notwithstanding that the employee was engaged as a casual and paid a casual loading.

The new rules will apply where an employee has been mistakenly classified as a casual employee during some or all of their employment period. If this occurs, an employer will be able to make a claim to have the casual loading paid to the employee taken into account when calculating the employee’s entitlements under the NES, provided that:

The employee was employed on a casual basis;
The employee was paid a casual loading that was clearly identifiable as an amount paid to compensate them for not having one or more NES entitlements payable to permanent employees (such as an entitlements to annual leave) during a period of employment;
Despite being classified as a casual employee, the employee was in fact a full or part time employee for the purposes of the NES during some or all of their employment period; and
The employee makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements.

The new rules apply to employment both prior to and after 18 December 2018.

Employers should review their casual employment practices and ensure that casual employment contracts clearly state that casual loadings are paid to compensate employees for not having relevant permanent employee entitlements under NES during the period of their employment.

If you need assistance to respond to claims by casual employees or to understand the new rules, please contact Hannah at hannah@theworkplacelawyers.com.au, Patricia at patricia@theworkplacelawyers.com.au, Kim at kim@theworkplacelawyers.com.au or Elizabeth at elizabeth@theworkpalcelawyers.com.au

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