Morrison Government introduces new casual loading offset regulation

The Morrison government has varied the Fair Work Regulations 2009 to allow an employer to claim amounts paid as a casual loading be offset against NES entitlements (e.g. annual leave) in the event the employee is later found to be a permanent employee.  The change is intended to address concerns from employers in the wake of the WorkPac v Skene decision of employees engaged as casuals claiming paid leave entitlements retrospectively.

The Fair Work Amendment (Casual Loading Offset) Regulations 2018 came into force from 18 December 2018.  It provides that:

• a person employed as a casual who is paid an amount that is clearly identifiable as an amount paid to compensate for not having one or more relevant NES entitlements during a period; and
• during all or some of the period the person was in fact an employee other than a casual; and
• the person makes a claim to be paid an amount in lieu of one or more relevant NES entitlements during the period; and
• the employer may make a claim to have the loading amount taken into account in determining any amount payable by the employer to the person in lieu of one or more relevant NES entitlements.

The Regulation applies to employment periods that occurred before or after 18 December 2018.