New reg safeguards employers from 'double dipping'

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New reg safeguards employers from 'double dipping'

Proposed regulations being introduced by the federal government to prevent ‘double dipping’ by casual workers will be welcomed by employers, according to the NSW Business Chamber.

Proposed regulations being introduced by the federal government to prevent ‘double dipping’ by casual workers will be welcomed by employers, according to the NSW Business Chamber. 

“I commend the government for addressing the absurd situation where employees can double dip by receiving a casual loading in lieu of annual and personal leave, and then receive those exact same paid leave entitlements as well,” said NSW Business Chamber CEO Stephen Cartwright. 

“These new regulations are a victory for common sense.”  

Greater clarity

The government intends to recommend to the Governor-General that he make a Fair Work Regulation to provide greater clarity of an employer’s legal rights with respect to offsetting payments of casual loading amounts against National Employment Standards (NES) entitlements. 
The Minister for Jobs and Industrial Relations, Kelly O’Dwyer MP, said the new Fair Work Regulation would provide greater clarity of existing general law rights to offset payments when claims are made to pay for the same entitlements twice. 
“Small businesses have told us that they are concerned that a recent Federal Court case may give rise to claims to pay additional amounts for leave entitlements when they have already paid a casual loading in lieu of those leave entitlements,” Minister O’Dwyer said. 
“Every employer must comply with their legal obligations. But being forced to pay for entitlements twice is unfair and potentially crippling for many small businesses. It is critical that small and medium sized businesses have the confidence to invest in their business and employ people.” 
A new regulation will provide that, where an employer has paid an identifiable casual loading to an employee engaged as a casual, it may potentially be offset against any subsequent claim for NES entitlements. It will of course, still remain a matter for a court to decide to apply an offset in any particular circumstances. 

“This is an important issue to maintain confidence in employment, for both employers and employees,” Minister O’Dwyer said. 
“That is why I have also recently intervened in the WorkPac v Rossato matter before the Federal Court of Australia. My intervention and the making of this regulation are complementary measures, both seeking to provide certainty around existing general law rights and to prevent employers having to pay employees their benefits twice.”  


Mr Cartwright said it was disappointing the government was not able to obtain bi-partisan support for a legislative solution to address all of the problems arising from the recent Workpac v Skene decision.  

“Without the new regulations, we are left with Fair Work laws that are not fair and do not align with the reality of casual employment in the modern workforce," he said.
“Many employers engage casuals to meet operational demands of their business, and many employees choose to be engaged as casuals so that they receive their 25% casual loading. Many of these consensual arrangements, which have operated in practice for decades, now carry the risk of landing employers with a double whammy. 

“It’s why the NSW Business Chamber recently proposed the idea of introducing a new category of worker, a perma-flexi, which allows casual employees to be engaged on the same flexible basis as they always have been, but with leave entitlements being provided in exchange for the payment of a 10% loading."

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