Co-written by: Mai O’Regan (Paralegal)
Both employers and employees in 2020 have struggled to gain their footing, from mass layoffs and redundancies due to COVID-19 requirements. The job sector has struggled to cope with the barriers that came with a global pandemic. Now with 2021 here, questions are being raised as to what the future of casual employment and employment law will hold.
What Does 2021 mean for Employment Law?
The most important change regarding employment law in 2021 will be the ‘omnibus’ Bill put forward by the Federal Government. This Bill will be effective as of early next year and will incite significant changes to the Fair Work Act 2009 (Cth).
We will see the following changes:
- a statutory definition of the term casual employment
- the ability to set-off causal loadings against claims for leave entitlements and
- casual employees having the universal right to convert to permanent employment.
Casual Employment Definition
The introduction of a causal employment definition is based on the test used by the Full Federal Court in Workpac Pty Ltd v Skene. The statutory scheme will define a person a causal employee if employment is offered and accepted without any firm advance commitment that the work will continue indefinitely and follow an agreed pattern of work.
This new definition will apply to casual workers from the date they commence their casual employment.
Set-off casual loading against leave entitlement claims
Employers will be able to offset amounts already paid through casual loading against any claims for the employee to be paid for leave entitlements. If an employer is sued for payment, the court must allow the employer to deduct any identifiable casual loading paid to compensate the employee for the absence of those entitlements.
The new legislation will give a universal right for regular casuals to convert to full-time or part-time employment based on the nature of their regular hours. If a casual employee has worked for a period of 12 months the employer must make an offer to convert the employee to full time or part time employment.
JobKeeper will continue until 28 March 2021 and is targeting support to those businesses and not‑for‑profits which continue to be significantly impacted by the Coronavirus. JobKeeper will continue to grant temporary powers to employers in terms of enabling directions in relation to duties and location of work. It will also allow part time employees the ability to work extra hours without triggering obligations to pay overtime for any additional hours.
The Fair Work Ombudsman is receiving funding to establish a service that will provide advice to small businesses to ensure award compliance. The Employer Advisory Service will start on 1 July 2021.
If you have a business and are needing advice surrounding casuals you should be proactive and seek that advice now.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.