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Further Developments on casual employment changes

In our article on Important recent development in casual employment we provided an overview of the decision made by the Full Federal Court that subsequently has changed the way employers must look at casual employment.  As was the case in the Workpac Pty Ltd -v- Skene case if the employment relationship is determined not to be genuinely casual, the employee is entitled to accrued annual leave under section 86 of the Fair Work Act 2009 (the Act).  In addition,  if an employee has been paid the casual loading of 25% which is “not a legitimate basis for exclusion from the construction of section 86” of the Act under which the entitlement to annual leave arises.  It is not considered to be ‘double dipping’ to be paid both the casual loading of 25% and also accrue annual leave, even though it has generally been held that the 25% casual loading was paid in lieu of certain entitlements including annual leave.

Since our original article was released WorkPac, the employer in the Full Federal Court decision, is opposing a separate application from a past casual employee seeking payment for leave entitlements which the employee alleges was accrued during his casual employment. It is anticipated that this Federal Court decision will provide some clarity on the scope of the application of the WorkPac decision. Given the potential for substantive liability for leave entitlements to casual employees, we will closely follow any developments in the Courts and Tribunals which may shed further light on how the decision of the Full Federal Court may impact employers.

Read the full article on the development in casual employment here.