Following confirmation AMMA member Workpac would not seek leave to appeal a contentious Federal Court ruling which granted a casual truck driver leave entitlements, AMMA and other peak industry groups have ramped up calls for Parliament to clarify the issue through a legislative response.
While based on many unique facts, the widely-covered matter is somewhat viewed as a test case for the ability of casual employees across multiple industries to seek back-pay when employed on a regular and consistent basis.
AMMA was the first industry representative group to lead employer advocacy on the case, and as implications for other industries and the broader economy became apparent, other industry groups have joined in calling for certainty on the way forward.
“Parliament urgently needs to change the Fair Work Act so it’s clear people employed and paid as casual employees, are casual employees,” Australian Chamber CEO, James Pearson, said in a public statement.
“Employers and employees need to have certainty and confidence about their futures.”
He said the regulatory and legal implications of this decision are alarming.
“This decision is a king hit on the livelihoods of Australian employers and employees – in particular small businesses,” Mr Pearson said.
“Employers will have to work out urgently if they have to offer fewer casual jobs in case the work becomes too regular, creating unintended consequences and liabilities.
“Inflexible rules in most workplace awards mean casual employees, who might be deemed permanent because of the Court’s decision, may be locked into fixed hours. That means they lose out on being able to choose their shifts, change their hours or pick up extra hours when they become available.”
Australian Industry Group Chief Executive, Innes Willox, agreed Parliament must act quickly to protect businesses, employees and the community from the huge potential cost impacts of the Federal Court’s decision.
“It would be very unfair to allow employees who have received a special loading as a casual to now be able to ‘double-dip’ by also claiming annual leave and redundancy entitlements,” he said.
“The very widespread and longstanding practice across virtually all industries is that an employee engaged as a casual and paid as a casual is a casual. It is very common for casuals to work on a regular and systematic basis for extended periods.”
AMMA, the Australian Chamber and its network association members, as well as Ai Group, are broadly united in seeking amendments to the Fair Work Act that would clarify the definition of casual employment and thus mitigate the risk of potentially widespread litigation testing this determination in other workplaces or sectors.
AMMA’s Workplace Relations experts are presenting at a members-only Perth Industry Breakfast Briefing tomorrow (Wednesday 19 September) on the implications of Workpac vs Skene, including practical steps for employers as well as industry’s lobbying efforts for clarification.
Members who wish to attend can register here. Those not in Perth but who are interested in the findings and advice from the member presentation should contact [email protected] for a private briefing.