Federal Labor Senator Don Farrell moved a motion in the Senate on Monday (16 September) to have last year’s Fair Work Amendment (Casual Loading Offset) Regulations 2018 disallowed.
The amendment was introduced by the federal government in a bid to address uncertainty over casual employees, who a court ruled could be considered permanent staff — and therefore entitled to annual leave and other entitlements.
Employer groups had lambasted the proposal to remove the amendment, which would allow for the casual loading paid to any employee to be taken into account in the event that the employee was deemed to be permanent rather than casual.
“This disallowance motion supports hardworking Australian workers who’ve been wrongly categorised as casual workers and have subsequently been deprived of their entitlements under the National Employment Standards, such as the right to paid annual leave,” Senator Farrell said in introducing his motion to the Senate.
“Some employers have expressed surprise at the WorkPac decision while at the same time admitting that millions of Australian workers were working in similar arrangements to those of the WorkPac case — that is, as so-called casuals without any leave entitlements and in breach of the most basic workplace entitlements under the National Employment Standards in the Fair Work Act.
“Employers lobbied the government to take action on the basis that they want to be able to unilaterally determine who is and who is not a casual employee, which would further entrench insecure work among the Australian workforce.”
Senator Farrell also described the double-dipping argument by employers as “fallacious”.
“Employer groups argue this is because casual employees are paid a loading to compensate them for other entitlements. So they say that having to repay employees the most basic of National Employment Standards entitlements as well is a double payment,” he said.
“Casual work is meant to be just that — casual. And using casual contracts for jobs that are, in fact, permanent is an abuse.”
However, the Senate on Monday knocked back Labor’s motion, albeit by a slim majority of 33 against 29 in favour.
‘Common sense has prevailed’: ACCI
The Australian Chamber of Commerce and Industry (ACCI) welcomed the defeat of the disallowance motion, with its CEO, James Pearson, stating, “Thankfully, common sense has prevailed”.
He said: “On behalf of thousands of small and family businesses across the country, ACCI thanks the Coalition and the crossbench for their sensible and practical approach in choosing to protect this vital law.
“It is regrettable that employers were deliberately exposed to this reckless move, one that caused unnecessary distress and uncertainty for them.”
Mr Pearson added: “It was particularly disappointing, and hopefully a one-off, to see any party dismiss offhand the genuine concerns of the small business community.”