Federal Government added as a party to Federal Court casual ‘test case’

Jobs and Industrial Relations Minister, Kelly O’Dwyer, will intervene in a Federal Court ‘test case’ about casuals. This announcement follows increasingly vocal concerns from employers that workers will be able to ‘double dip’ on their entitlements.

WorkPac commenced proceedings in early October 2018, seeking declarations that a former employee, Robert Rossato, was a casual employee and not entitled to be paid leave entitlements. The Federal Government is likely to be added as a party to these proceedings.

This application is WorkPac’s response to the decision of the Federal Court in early September 2018 (WorkPac Pty Ltd v Skene [2018] FCAFC 131), which rejected the commonly applied position that an employee described as a casual under an award or enterprise agreement is a casual for all purposes. The Court found that a casual employee was entitled to annual leave under the National Employment Standards in the Fair Work Act 2009 (Cth).

Ms O’Dwyer said today (as reported in The Australian) that the Federal Government decided to make the Commonwealth a party to the proceedings:

The Government is very concerned that the legal right to offset an obligation against payments already made for the same entitlements was not dealt with in Skene v WorkPac. We want to make sure the same thing does not happen again.

It must be made clear that the fundamental common law right to offset is available to small business employers if it faces claims to pay for the same entitlement twice.

This action will come as a relief to employers after WorkPac decided not to pursue a High Court challenge to the Full Bench decision in Skene. The fresh legal action comes after widespread employer alarm that businesses could be subject to claims totaling billions of dollars.

The outcome of this case will be important for all employers affected by the decision in Skene and we will keep a watching brief as the case unfolds. If WorkPac is successful in obtaining the declaration, the risk to employers in connection with the engagement of casual employees will be materially reduced, as it will hopefully prevent casual employees from ‘double dipping’.

If you would like to discuss the status of your casual employees, please contact our workplace relations and safety partners, Belinda Winter on [email protected] or (07) 3231 2498 and Annie Smeaton on [email protected] or (07) 3231 2946.