Federal Government to intervene in casual worker test case

In a recent blog post, we noted the finding of the Full Federal Court that a casual employee was entitled to the leave benefits of a permanent employee due to their regular and predictable working pattern.

The ruling alarmed employers who called for the government to change the Fair Work Act to overturn the decision and avoid casual employees double dipping their entitlements by claiming a casual loading in lieu of permanent employee benefits, then also claiming annual leave on top.

Since then, the Federal Jobs and Industrial Relations Minister, Kelly O’Dwyer, has decided to intervene to make the Commonwealth a party to related proceedings.

“It is important for me to intervene in this case given the considerable concern across Australia’s three million small businesses and given the impact it could have on job creation and existing jobs,’’ she told The Australian.

“Small businesses must be able to operate with clarity and certainty of the law, which will ensure not only their success, but the success of Australians employed in small businesses across Australia. Clarity and certainty strengthens compliance, which I am sure both employers and employees would welcome.”

“The Government is very concerned that the legal right to offset an obligation against payments already made for the same entitlements was not dealt with in Skene v WorkPac. We want to make sure the same thing does not happen again.”

“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.”

We are sure that employers will be very interested in the outcome and look forward to clarification of the relevant rules.

Feel free to contact us if this article has raised any questions for you – we can direct your enquiry to an appropriate advisor.