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Small and medium businesses hit hard by WorkPac v Skene casual ‘double-dipping’ decision – Parliament needs to act

“An analysis of Australia’s casual employee workforce highlights the potentially devastating impact of the Federal Court’s decision in the WorkPac v Skene case on small and medium businesses,” Australian Industry Group Chief Executive, Innes Willox, said.

“One in every five Australian workers is a casual employee, with more than 80 per cent of casual employees working for small and medium businesses with fewer than 100 staff members, according to the Characteristics and Use of Casual Employment in Australia report, published earlier in 2018 by the Commonwealth Parliamentary Library.

“The uncertainty created by the Federal Court’s decision creates big risks for business, with small and medium businesses facing the biggest threat. The issue threatens thousands of jobs, including the jobs of young people who rely heavily on casual employment.

“It is vital that Parliament acts quickly to protect businesses, employees and the community from the huge potential cost impacts of the Federal Court’s decision. Employees who have received a special loading as a casual should not be allowed to ‘double-dip’ by also claiming annual leave and redundancy entitlements.

“There are approximately 2.6 million casual employees in Australia, comprising approximately 20% of the total workforce.”

  • The analysis by the Commonwealth Parliamentary Library reports that:
  • 51.4% of casuals work for small businesses with less than 20 employees, or 1.3 million casuals in 2018;
  • 30.7% of casuals work for businesses with 20-99 employees, or 798,000 casuals in 2018; and
  • 17.9% of casuals work for businesses with 100 or more employees, or 465,400 casuals in 2018.

“In the WorkPac v Skene case, the Federal Court held that the term ‘casual employee’ in the Fair Work Act has no precise meaning and whether any employee is a casual for the purposes of the Act depends upon the circumstances. This is unworkable. The very widespread and longstanding practice across virtually all industries is that an employee engaged as a casual and paid as a casual is a casual. It is very common for casuals to work on a regular and systematic basis for extended periods.

“The cost risks associated with the Court’s decision, unless addressed by Parliament, will drive many businesses, small, medium and large, into insolvency, leaving taxpayers to pick up the tab under the Fair Entitlements Legislation,” Mr Willox said.

Source: Ai Group

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