Since the decision in WorkPac Pty Ltd v Skene there remains a lot of uncertainty as to what is a casual employee for the purposes of the National Employment Standards (“NES”) paid leave entitlements.
Our previous article “Is your casual employee really casual”? provides insight as to what is or isn’t a true casual employee and you can find it here. Briefly, a casual will be a permanent employee if there is a firm advance commitment from both the employer and the employee as to the duration of the employment or the days (or hours) the employee will work.
Under the NES, casual employees typically have no entitlements to paid leave but are paid a casual leave loading instead of paid leave entitlements. The issue is that casual employees who are in fact permanent employees may be entitled to recover paid annual leave under the NES despite being paid an additional casual leave loading.
So what are your options if you suspect you’ve hired a casual employee that isn’t a true casual?
- Get legal advice sooner rather than later to understand your options;
- Review your casual engagements and rostering systems to avoid casual employees not being true casuals;
- Review current employment agreements for casual employees, especially those casual employees who work on a regular basis;
- Revise new employment agreements to include a clause to offset the casual leave loading. Offset clauses need to be carefully drafted to avoid risk of significant backpay.
It’s important to get legal advice about your rights and obligations as an employee and employer. At Cohen Legal we can assist both employees and employers when navigating the rabbit hole of employment law by:
- preparing and reviewing employment contracts and policies;
- providing advice in relation to employment matters, such as applicable awards, employment entitlements and other obligations under the Fair Work Act, performance management, disciplinary processes and workplace complaints as well as terminations;
- assisting with employment law disputes, including restraint matters, unfair dismissal and adverse action claims and claims for breach of contract.
If you would like to find out more about your rights and obligations or any other matters relating to employment law, please contact Melanie Richards.