AUSTRALIAN Resources and Energy Group AMMA has urged Senate Crossbenchers to block a move by the Australian Labor Party (ALP) to recreate uncertainty for employers regarding potential back-pay of full-time entitlements to casual employees.

In a letter sent last week, AMMA called on the Crossbench Senators to vote against an ALP motion to disallow an important new Fair Work Regulation and in the process uphold business confidence, clarity and common sense regarding casual employment entitlements.

The Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Regulation) was introduced by Minister for Jobs and Industrial Relations Kelly O’Dwyer in December 2018, clarifying the rights and responsibilities of employers and employees in relation to casual employment (see related story here).

The Regulation stops the potential for casual workers to “double dip” by accepting high pay rates (casual loading) during their employment, only to also later claim back-pay for entitlements afforded to permanent employees, such as annual leave and redundancy.

It achieved this by clarifying that if a casual loading had been paid to an employee, that loading may be offset against any subsequent claim to be paid permanent employee entitlements.

The ALP is now seeking to overturn this resolution through a disallowance motion introduce by Senator Doug Cameron on 13 February. Expected to be raised for vote before the Senate in April, it’s successful passage would recreate the uncertainty that faced employers over this issue in 2018.

“The Full Federal Court decision that created this uncertainty (Workpac v Skene) effectively went against the common understanding of rights and responsibilities of employers and employees regarding casual employment,” Tara Diamond, Acting CEO of AMMA, said.

“Simply, if an employee had accepted a higher rate of pay for being casually engaged, they should not be able to also claim for back-pay of permanent entitlements such as annual leave.

“The Regulation introduced in 2018 was a necessary clarification for all employers and employees that this common sense understanding remained the case.

“It brought the legislation in-line with the common understanding of casual arrangements in Australian workplaces, and ensured there would be no “double dipping” if casuals are later deemed to have in fact been full-time employees based on the characteristics of their employment.

“It is highly irresponsible of the Federal Opposition to attempt to throw this important clarification out the door, effectively recreating the uncertainty for employers both small and large, which impacted hiring decisions and business confidence in 2018.”

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