If you engage casual employees you need to be aware of two important developments.
The first concerns the so-called “double dipping”, where a casual employee who was paid a casual loading subsequently claims employment benefits that are otherwise only available to permanent employees (e.g. annual leave) on the basis that he or she has been incorrectly classified as a casual employee.
There is currently litigation pending which seeks to clarify whether or not an employer faced with such a claim is entitled to offset the casual loading paid against any liability it may have to the employee.
The issue has been addressed to a certain extent by the Fair Work Amendment (Casual Loading Offset) Regulations 2018 which came into effect on 18 December 2018, adding Regulation 2.03A to the Fair Work Regulations 2009.
In summary, that regulation allows the employer to claim to have the casual loading taken into account in determining any amount payable to the employee. The regulation applies:
- If a person is engaged as a casual employee;
- The person is paid an amount that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant National Employment Standards entitlements during his or her employment;
- During some or all of his or her employment the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and
- The person makes a claim to be paid an amount in lieu of one or more of the relevant National Employment Standards.
The Regulations provide that Regulation 2.03A applies to employment periods that occur (whether wholly or partly) before, on or after the commencement of the amendment.
Employers who engage casual employees should ensure that the terms of engagement clearly identify the amount of the casual loading and the National Employment Standards entitlements, the loss of which are intended to be compensated by that loading.
The second development is the introduction of the Model Casual Conversion Clause that has been introduced into 80 Modern Awards with effect from 1 October 2018. The clause allows a “regular casual employee” with more than 12 months employment to request to have their employment converted to full or part-time employment (as the case may be).
A regular casual employee is defined as a casual employee who, in the preceding 12 months, worked a pattern of hours on an ongoing basis which, without a significant adjustment, he or she could continue to perform as a full-time or part-time employee.
A request for conversion can only be refused on reasonable grounds.
Employers who engage casual employees are required to provide each casual employee with a copy of the conversion clause within 12 months of his or her engagement (and in the case of casual employees engaged before 1 October 2018, by no later than 1 January 2019).
Employers who engage casual employees should review the relevant provisions of the award or awards that apply to their operations.