In December 2018, Kelly O’Dwyer, the then Federal Industrial Relations Minister, amended the Fair Work Regulations 2009 (Regulations) to put an amount of certainty into the debate of possible “double dipping” of casual employees.

The amendment stated that if it can be clearly shown that:
• the employee was hired as a casual employee; and
• was paid an identifiable casual loading,
Any claim made by a casual employee to be paid for one or more of the National Employment Standards entitlements (that a casual employee does not have), an employer can claim that the money paid in casual loading should be taken into account when working out entitlements of the casual employee.
An amendment to the Regulations, however can be changed in Parliament and the Opposition have stated that they will move a motion on September 16, 2019, disallowing the amendments to the Regulations relating to casual employees.
This amendment effectively shielded employers against “double dipping” on entitlements by casual workers. The explanatory statement for the regulations says they “describe the existing general law circumstances in which payments may be taken into account and are intended to facilitate clarity and certainty for employers and employees of their existing rights”.
The Opposition first moved the disallowance motion in February this year and is renewing its opposition in the wake of the Federal election.
A vote in the Senate last night saw the opposition motion defeated with the assistance of the cross benches, which means that the amended Regulation stays in place. Employers who employ casual staff should ensure that their employment contracts/letters of offer clearly state the status of the employee and identify the casual loading in the hourly rate paid.