Following up on the concerning landmark Federal court decision in October that granted a ‘casual’ truck driver annual leave, the Federal Government passed legislation on the 18 December to resolve the issue.
To recap, the problem was that the Federal Court decision (WorkPac Pty Ltd v Skene) that casual workers (including all employees in the shearing industry) could potentially apply for annual and sick leave (Personal Leave entitlement), even though their pay includes a 25% ‘Casual loading’ to cover these entitlements.
The new legislation, the Fair Work Amendment (Casual Loading Offset) Regulations 2018, allows the employer to have the casual loading amount (which is already paid to the employee) in each pay taken into account when determining any amount payable to the employee, in lieu of one or more relevant National Employment Standard (NES) entitlements (personal leave). Therefore, should an employee apply to have Holiday leave or Sick leave paid to them as a result of WorkPac Pty Ltd v Skene, the court would offset the 25% casual loading payment paid to the worker against the 8% (approximate) holiday pay claim. In summary, any claims of this type would be pointless.