In our last update we advised that a second case had been filed in the Federal Court by a casual employee of labour hire company, Workpac. The employee is seeking to be paid for annual leave as well as other forms of leave. This is despite the fact that the employee had been paid a casual loading during his casual employment.
The case is looking like it will become a test case on the validity of the decision in Skene, where a casual employee was awarded annual leave entitlements despite being employed as a casual employee and paid a casual loading. The Federal Industrial Relations Minister has been granted leave to intervene in the case and is echoing the concerns being raised by employers. These being the practical outcome of the previous decision and any others made based on the same premise amounts to double dipping by casual employees. As a minimum it is being argued that if there is an entitlement to paid leave entitlements, then the 25% loading which has already been paid to casual employees, should be able to be offset against the cost of such entitlements. Such an outcome would at least address the issue of double dipping.
The CFMMEU, Mr Skene (the casual employee subject to the previous Full Bench decision) and another Workpac employee Mr Meaney, who is represented by class action firm Adero, have also sought leave to intervene in the case.
A request has been made to refer the case to a Full Bench of the Federal Court. The next step in the process is for the Federal Industrial Relations Minister and Workpac to provide submissions in support of the request for the matter to be referred to a Full Bench of the Federal Court.
The next Court date has not yet been set.
As anticipated in our last update, greater clarity is likely to be provided by this next case. The parties are certainly gearing up to treat it as a test case of the decision in the initial Workpac casual entitlement case involving Mr Skene. This is good news for employers as clarity is absolutely necessary on this serious matter. If the decision in the first Workpac case was to be extended generally to casual employees, there are many employers who will have an unexpected liability for unpaid leave.
We recommend that whilst this matter progresses through the Court that clients remain vigilant about how they use casual employees and seek advice if they are concerned about their options for employing people going forward. We will keep you updated as the matter progresses.
If you have any concerns about your employment practices or potential liability for unpaid leave entitlements, contact our HR Division, Providence HR to discuss your options. The Managing Director of Providence HR, Cheryl-Anne Laird can be reached on (07) 3218 3014 or Cheryl-Anne.Laird@providencehr.com.au.