The end of “Double dipping” brings certainty to employers

The issue of “double dipping” by casual workers has been an increasing concern and a subject of intense debate following the Skene and Rossato decisions.

Following extensive lobbying by our peak industry body for the staffing sector, the Recruitment, Consulting and Staffing Association (RCSA), we are pleased to advise that an amended version of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (“Bill”) passed the Senate. The Bill will now go to the Lower House where it is expected to be passed in its amended form.

What’s changing?

As outlined by the RCSA, the changes passed by the Senate include:

• Establishment of a definition of casual workers that will provide greater clarity for business on engagement of casual workers.
• Measures that prevent ‘double dipping’ by allowing employers to set off any entitlements that result from a reclassification against any loading already paid.
• Casual conversion provisions that allow casual workers the opportunity to convert to permanent employment after 12 months.
• New provisions that provide for a small claims process to resolve casual conversion disputes including reasonable business grounds, casual conversion requests and business refusal.
• A review of the changes contained in the Bill after 12 months.

What is the definition of a “casual employee”?

The Bill creates a legislated definition of “casual employee”. The definition provides that an employee will be a casual if the employee accepts an offer of employment that is made on the basis of “no firm advance commitment to continuing and indefinite work according to an agreed pattern of work “. Whether there is no “firm advance commitment” (and, therefore, whether an employee is a casual) will be assessed at the time the offer is made.

What does this mean to you as a Horner client (employer)?

As a user of casual workers either on-hired through Horner Recruitment or through your own or other means this will provide you with confidence for the future to employ casual workers and remove any fears that you could be liable for billions of dollars in backpay — despite paying employees a casual leave loading.

As an employer, key takeaways are:

• When offering casual employment, ensure that the offer of employment clearly states in writing that it’s casual employment.
• You will need to offer casual employees full-time or permanent part-time work where they have been working consistent, regular shifts for 12 months.
• Small businesses, as defined by 15 or fewer employees, are exempt, but employees can request a conversion in their contract.

What’s not changing?

There were a number of other key changes proposed for the Bill that were passed.

As outlined by recruitment news provider Shortlist, the scaled back Bill specifically omits the changes that were proposed for:

• Award flexibilities, including extensions of JobKeeper flexibilities, and part-time flexible work;
• Agreement making, which would have simplified the process;
• Greenfields agreements; and
• Compliance and enforcement, in the form of tougher wage theft laws.

How does this help employers?

Whilst the Bill was in a scaled back format, the changes made are a positive step.

RCSA CEO, Charles Cameron explains, “The changes are a massive win for job creation and economic stability, providing certainty and security for casual workers and their employers. Let’s face it, job security comes on the back of business security and this new law delivers an enormous dose of confidence when business needs it most.”

“This amendment removes the roadblocks for Australia’s economic recovery. We now have a clear road ahead of us and a real opportunity to lead the world in economic recovery after the COVID economic shock,” said Mr Cameron.

Need more information?

For any queries or concerns on these changes and how it impacts your organisation, please contact Kylie Heffernan, General Manager on 0409 336 418 or Darren James, Manager – Business Development on 0417 519 669 or email horner@horner.com.au

We’re here to help.