Following the implementation of the Fair Work Amendment (Casual Loading Offset) Regulations 2018 on 18 December 2018, questions have circulated as to whether the new details really do afford employers greater protections.
On the surface, Casual Offset Regulations are designed to enable employers to offset the casual loading paid to casual employees against entitlements they would be owed if the employee is later found to be a permanent employee during the course of their employment. Recent amendments to this legislation have been introduced and have created a common perception that they bolster employer protections.
However, if one digs down into the practical effect of these amendments, and in particular considers the Explanatory Statement that accompanied the introduction of it, one could regard the new changes as a bit of a legislative meringue; sweet, but lacking appropriate substance.
Under “Purpose”, the statement indicates that:
“…the Amending Regulations provide declaratory clarification of existing legal and equitable general law rights to offset payments of identified casual loading amounts in circumstances where a person makes a subsequent claim to be paid one or more entitlements under the National Employment Standards (NES).”
The last paragraph, under “Background”, adds further that:
“the Amendments do not change the existing rights of an employer to make a claim, nor do they change the factors that a court must have regard to in determining whether a payment made may be taken into account in any particular factual circumstances.”
As such, the Regulations serve more as an advertisement to employers of their existing rights to apply to an appropriate court for a ruling that they be allowed to offset overpayments against entitlements if specific criteria are met. The Regulations however do not make the likelihood of success for the employer, before the court, any greater than was the case prior to the introduction of the original Regulations. Employers will need to await the reserved decision of the Full Court of the Federal Court in the matter of Workpac Pty Ltd v Robert Rossato (QUD724/2018) to ascertain whether the current rights will change.
These Amendments don’t truly introduce any new concepts to make employer’s lives easier; instead, they merely clarify some murkier aspects of the original text. Until further processes are provided by either case law or legislative change, employers need to closely review their employment contract arrangements in order to minimise the risk of being exposed to a “double-dipping” claim.