On Monday 17 December 2018, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Amending Regulation) was registered and took effect from 18 December 2018. The Amending Regulation amends the Fair Work Regulations 2009 (Cth). The Amending Regulation is intended to apply where an employee has mistakenly been classified as a casual employee and is claiming NES entitlements, even though they have received a casual loading in lieu of those entitlements. The purpose is to ensure double-dipping does not occur.
The Amending Regulation applies if:
- a person is employed on the basis that the person is a casual employee; and
- the employer pays the person an amount (the ‘loading amount’) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the ‘employment period’) (e.g. in pay slips, correspondence and industrial instruments); and
- during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the NES; and
- the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements.
In these circumstances, an employer may make a claim to have the ‘loading amount’ taken into account in determining any amount payable by the employer to the person in lieu of one or more relevant NES entitlements.
The Amending Regulation states that it does not affect the matters a Court might otherwise have regard (at law or equity) in determining an employer’s claim to have the loading amount taken into account. The ‘employment period’ set out above includes any periods of employment that occurs wholly or partly before, on, or after, 18 December 2018.
In light of the decision in Skene1 and the Amending Regulation, it is worthwhile reviewing template casual contracts to ensure that your business is in the best position it can be to utilise the Amending Regulation in defence of any claims.
1. WorkPac Pty Ltd v Skene  FCAFC 131
This article was written by Wendy Fauvel, Senior Associate.
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