Slimmed down IR Bill passes Senate, putting to rest casual “Double Dipping” concerns

A slimmed down version of the Federal Government’s IR Omnibus Bill has cleared the Senate after a lengthy period of negotiation which saw four of the original provisions dropped leaving only the casual employee related parts of the Bill remaining and subsequently to be passed into law. 

The new provisions will provide a statutory definition of a casual employee, a new process to manage the conversion of casuals to permanent status, and the elimination of doubt around a casual employee’s rights to a “loading” percentage and their right to standard leave entitlements as well, a situation that came to be known as “double dipping” in media coverage last year.  

With respect to the latter matter, concerns around ‘double dipping” came to prominence after two different Federal Court of Australia rulings found that under certain circumstances “long term” casuals were entitled to standard leave entitlements in addition to the loading component they were paid in lieu of entitlements in their wages, and in those circumstances employers could not “net off” loading payments against any claims. 

These rulings created significant concerns for the Federal Government as they effectively opened the door for “long term” casuals to lodge claims for standard entitlement to be paid in addition to their already received loading amounts. 

In order to address these concerns and create clarity around the matter specific provisions were included in the IR Bill. 

A summary of the key provisions passed are as follows:

Defining a casual employee:

• A casual employee is defined as one where the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern, or schedule, of work for the employee

• The offer of employment will define the type of work ie: casual and must be agreed by both parties

• A casual employee will remain a casual employee until such time as they convert to full time or part time employment or find alternative employment

Transitioning a casual employee:

• An employer must make an offer to a casual to convert to permanent or part time employment if the casual has been employed for 12 months as a casual or after six months of the employee has transitioned to a regular pattern of hours

• A casual employee has the right to request for a conversion if they have fulfilled the conversion criteria and the employer has not offered the opportunity to convert

Clarifying rules around entitlements for a casual employee:

• Any casuals who have historically been employed as casual and received loadings to compensate them for not receiving entitlements but are not now classed as casuals under the new definitions can make a claim to the courts to be paid for their entitlements they believe to have accrued in the employment period

• But in considering the claims, the Courts may reduce the claim amount by an amount equal to a proportion of the loading already paid to the employee

As was noted by Richard Schaube, National Manager – Early Childhood at ANZUK “The potential for “double dipping” raised by the Federal Court Decisions was an odd situation that had created confusion and frustration given the loading and additional entitlements that are paid each day a shift is worked.”

“The passing of this Bill now gives us certainty on this crucial matter which is terrific.”

To access the Bill in full, see here. For more information about the legalities of casualisation, see here.