Can a casual get a casual loading and claim annual leave?

17 January 2019

On 18 December, 2018, the Federal Government introduced a new regulation to prevent the situation where a casual employee can be paid a casual loading but still claim for leave that would accrue to a permanent under the National Employment Standards (NES).

A decision of the Full Federal Court in WorkPac Pty Ltd v Skene has received significant publicity after a casual employee was found to still have an entitlement to annual leave and other permanent benefits, despite receiving a 25 per cent casual loading.

The decision, which resulted in casual employees potentially claiming for permanent entitlements twice, prompted Jobs and Industrial Relations Minister, Kelly O’Dwyer to amend the Fair Work Regulations 2009.

Enacted 18 December 2018, the Regulations aim to protect business from any such “double dipping” by permitting the offsetting of a casual loading against any potential claim for an entitlement under the National Employment Standards (NES).

Employers may benefit from the new regulation, provided the following criteria is met:

• The employee is in fact employed on a casual basis
• The employee receives a casual loading that is clearly identifiable as being an amount paid to compensate them for entitlements which under the NES they would not ordinarily benefit from (e.g. annual leave)
• The employee, despite being classified as a casual employee, actually worked a pattern of hours consistent with a full time (or part time) employee for the purposes of the NES
• The employee has made a claim to be paid for one or more NES entitlements as a result of their misclassification.

For more information contact Master Builders' workplace relations team on 1300 30 50 10.