Alert: Urgent and Important update on the legal landscape around employing casuals blog image

Alert: Urgent and Important update on the legal landscape around employing casuals

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Does your business have casual workers? Is there any chance your business will employ casual staff within the foreseeable future? If yes, it is absolutely critical that you are on top of the multitude of changes to the employment law landscape that have presented in recent months.

There are 2 particular risks that are new, and extremely important for any employer to be on top of:

1. The ‘Back Pay’ risk.

This is the risk that you might be left in a situation where you are required to back pay casual staff the value of entitlements as though they had been permanent staff, ON TOP of the casual loading that they have already been paid. Effectively new case law at the end of 2018* has paved the way to allow “double-dipping” in certain instances, making this a live and real risk for anyone employing casual staff.

In this case, an ambiguously worded contract meant a worker who was employed on a casual basis (therefore receiving a 25% casual loading) was able to receive entitlements such as paid annual leave on top of that casual loading.

This finding of the Court has the potential to open the flood gates for other, similar claims which are really concerning for employers of casual staff.

2. The Right of Casuals to request their position be converted to permanent.

Under legislation that has recently commenced*, employees working on a casual basis now have the right to request that their role be converted to a permanent position if they meet certain requirements.

This process – of converting an employee from casual to permanent employment if they make a request – is called ‘casual conversion’ and employers are only able to refuse a request if they have ‘reasonable grounds’ for doing so.

The legislation also creates a number of obligations for employers of casual staff, for example, in relation to the notification that must be given to casual employees of this right to request conversion.

These notification requirements are in force NOW – and you need to be providing this notification to your casual staff immediately.

Penalties apply for failure to comply with these obligations.

Takeaways

If you employ casuals, you need to get advice quickly about your situation so that you understand what can be done to reduce your risks of having to back pay on top of casual loading, and the simple steps that can be taken to avoid being penalised for non-compliance with the new legislation.  We have a free telephone service that you can use in order to have an initial discussion, to help you understand how these important changes might impact your business. We invite you to click here to line up a time to speak with our specialist team.

Or click here to listen to us talk about this issue in more depth, in our weekly podcast Talking Law – where we discuss the top legal issues that impact businesses.

Footnotes:

  • WorkPac Pty Limited v Skene [2018] FCAFC 131 (WorkPac).
  • Review of modern awards – Part-time employment and Casual employment Model Term

Aspect Legal Director Joanna Oakey image

Disclaimer: Chan & Naylor take no responsibility for the accuracy of any research material of contributors to our newsletter. Contributions to our newsletter like this article, “Alert: Urgent and Important update on the legal landscape around employing casuals”, are meant to be educational only and Chan & Naylor does not endorse any promotional material promoted in their articles. Readers should do their own research to determine the accuracy of their material.

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