Employer groups support O’Dwyer move while others point to employment law
Federal jobs and industrial relations minister Kelly O’Dwyer has moved to clarify the meaning of ‘casual’ in the wake of a recent full Federal Court finding in the case of a mine worker.
While the case, Workpac v Skene, relates to a casual truck driver employed by a labour contracting company working at multinational miner Rio Tinto, political and industrial commentary has centred of the concerns about the extent of entitlements, with the term “double dipping” entering debate.
A subsequent case, WorkPac v Rossato, saw the government become party to proceedings.
The government aims to make a Fair Work Regulation to “provide greater clarity of an employer’s legal rights with respect to offsetting payments of casual loading amounts against National Employment Standards (NES) entitlements”.
In explaining the move, O’Dwyer flags the issue as a serious “small and family business” worry, saying action would provide greater clarity of existing general law rights to offset payments when claims are made to pay for the same entitlements twice.
“Small businesses have told us that they are concerned that a recent Federal Court case may give rise to claims to pay additional amounts for leave entitlements when they have already paid a casual loading in lieu of those leave entitlements,” O’Dwyer says in apposition that has Australian Industry Group (AiG) and the Australian Chamber of Commerce and Industry (ACCI) support..
“Every employer must comply with their legal obligations. But being forced to pay for entitlements twice is unfair and potentially crippling for many small businesses.
“It is critical that small and medium sized businesses have the confidence to invest in their business and employ people.”
Read expert legal opinion on the case that sparked O’Dwyer’s move, here
However, barrister and ATN columnist Maurice Baroni comments that the facts of the Skene case pivot on the extended employment of the driver to the point where he could no longer be deemed a casual.
This is a point raised also by the Australian Council of Trade Unions (ACTU), which says the concept has been accepted in industrial case law that has “a long history”.
The government states that a new regulation will provide that, where an employer has paid an identifiable casual loading to an employee engaged as a casual, it may potentially be offset against any subsequent claim for NES entitlements.
It gives the reassurance that such issues will remain a matter for a court to decide to apply an offset in any particular circumstances.
“This is an important issue to maintain confidence in employment, for both employers and employees,” O’Dwyer says.
“That is why I have also recently intervened in the WorkPac v Rossato matter before the Federal Court of Australia.
“My intervention and the making of this regulation are complementary measures, both seeking to provide certainty around existing general law rights and to prevent employers having to pay employees their benefits twice.”