Double dipping blow for casual hire

Casual staff who are paid a 25 per cent loading are also now entitled to receive leave and other benefits associated with full-time staff, and may be entitled to back pay, according to a court ruling, which enables the so-called double dipping status.

The ruling by the full bench of the Federal Court was hailed as a “huge win” by unions, and the class action law firms bankrolling the challenge to the status quo, but left employers' groups calling on the government to make an immediate change to the law.

Industrial relations minister Christian Porter is now considering amending the Fair Work Act, and will be under immense pressure from the business community to do so. One business leader said the speed of companies going to the wall as result of the ruling "will be faster than Usain Bolt in full flight."

In an immediate response, the government this morning said it will clamp down on litigation funders, who, at present, have a much lower barrier to entry than other investment houses, and will substantially raise their required credentials.

Following the ruling, any casual that is employed by a print business, or any other company, and that is paid the 25 per cent loading for their casual status, can now apply to have annual leave, carers leave, and compassionate leave paid on top of their loading.

Of major concern to employers though is that it also means that casuals that have previously been employed can now claim back pay for the holiday time and other entitlements that, under the new court ruling, they should have been paid. Employers groups are calling the new ruling “a nonsense”, they fear the decision means business will have to stump up $8bn to pay casuals for past entitlements.

The PVCA, in common with all other employer associations, has been lobbying against the double dipping drive. The ruling itself will likely now go to appeal. Unions, though, say it will give certainty and equality to casual staff.

Already class action law firms are lining up against the bigger employers like BHP and recruitment and labour hire businesses. Employers' groups say such law firms will now be circling Australia like sharks, and with most casuals employed by companies with less than 20 staff, they fear the SME sector will be devastated with lawsuits for entitlements going back many years.

It is estimated between 1.5 million and 2.5 million casuals are impacted. Casuals are a common feature of the print industry, called in to help print businesses manage the inevitable peaks in production.

The ruling centred on the status of the miner, whose work pattern was found to be “stable, regular, and predictable.” The court ruled he should receive the same entitlements as full-time employees, irrespective of any loading or not, their status was not to be defined by their contract, but by their pattern of work.