Casual Employee Controversy

Casual worker, Cafe Worker, Employees, Casual employees

In May 2020, the Full Federal Court ordered an employer WorkPac to back pay a casual employee, Rossato, full paid leave entitlements and public holiday payments which he was owed on the basis he was a permanent employee that was mischaracterised as a casual.

This decision was made because Rossato worked regular, predictable, systematic hours. The Federal Government has appealed this decision to the High Court, wary that the decision could have substantial impacts to employers.

Since, Attorney General Christian Porter has drafted an amendment to the Fair Work Act 2009, which seeks to overturn the decision. The proposed amendment would allow an employer to reduce their liability to back pay permanent employee entitlements to employees mischaracterised as casuals that were paid an identifiable casual loading.

­­A key part of this proposal is the identifiable casual loading. If an employee has been mischaracterised as casual, they may not be entitled to claim back payment of permanent employee entitlements like paid leave if they have been clearly paid a casual loading.

Casual employees are entitled to a higher pay rate which includes a casual loading, paid because they do not receive benefits such as sick and annual leave. The proposed legislation highlights the importance of stating when casual employees receive a casual loading in place of permanent employee entitlements in employment contracts and payslips.

In Rossato’s case, he was not paid a separate identifiable casual loading during his employment. The employer attempted to retrospectively assert he had been paid causal loading, claiming he had been paid a ‘loaded flat rate’, however this was the same as permanent employees in the company.

The Government’s new legislation would retrospectively extinguish accrued entitlements owed to mischaracterised employees, such as permanent employees labelled casuals or contractors. This could be harmful to employees who are owed entitlements, however, would protect employers from having long-term regular casuals claiming permanent entitlements.

The decisions regarding Rossato’s Case and the Fair Work Act amendment will be highly awaited. Current best practice is that casual employees have a written contract including their entitlements and paid a clearly identifiable casual loading highlighted in payslips.

If you need assistance with employment contracts or pay rates for casual employees contact us on (08) 9316 9896 or enquiries@processworx.com.au

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Written by Danielle McNamee

 

 

 

 

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Marisa Ross

HR Advisor

Marisa is an experienced and motivated HR professional with a strong HR generalist and business operations background with a focus on employee relations, performance management, leadership training & development, workers compensation & injury management, and employee retention. Marisa holds a Bachelor of Human Resource Management and a Bachelor of Behavioural Science with a minor in Counselling. Having worked in a variety of industries from SMEs to large blue-chip organisations, Marisa is passionate about enriching employee experience, employee retention, and building leadership capability in people management.

Aimee Grigson

Aimee Grigson

WHS Advisor

Aimee has a strong understanding of Workplace Health and Safety Legislation and standards and has extensive HSEQ experience in a number of industries. Aimee has a great ability to engage across all levels of organisation, including field teams, leadership and external stakeholders. Aimee ensures Health and Safety Management Systems are compliant to legislation, effectively implemented and understood by all. Aimee has a Certificate IV in Work Health and Safety and qualifications in auditing and incident investigations. Aimee is passionate about coaching and developing small businesses towards a positive safety culture.