By Charles Power
The Federal Government is seeking to introduce a regulation in response to the recent Workpac decision. That decision ruled that an employee who was treated as a casual – and paid a casual loading – was in fact entitled to paid annual leave under the Fair Work Act 2009 (Cth) National Employment Standards (NES) because of his regular pattern of hours and expectation of continuing work.
The Government will seek to make a regulation that will provide that, where an employer has paid an identifiable casual loading to an employee engaged as a casual, that amount may be offset against any subsequent claim for NES entitlements, including claims for paid leave.
This regulation could be disallowed by a vote in the Senate when parliament resumes next year.
The Government also proposes to introduce new NES rights that replicate rights recently granted by the Fair Work Commission (FWC) to award-based employees.
The NES has already been amended to include a right to five days’ unpaid leave for workers seeking to cope with family and domestic violence.
The Government will seek to amend the NES in the new year to enshrine a right for regular casual employees to request conversion to full-time or part-time employment.
The FWC determined to provide for this right in all modern awards for casuals who had served at least 12 months working a pattern of hours that could be performed as full-time or part-time employment.
Employers may refuse conversion on certain grounds and it is not clear whether the new legislation will depart from the modern award provision.