Urgent legislative fix required on ‘super employees’

The decision today by WorkPac Pty Ltd not to appeal the Federal Circuit Court decision on WorkPac v Skene means all Australian businesses employing casual workers will be forced to continue operating under enormous uncertainty until an urgent legislative fix can be achieved.

Charles Cameron, CEO of the peak industry body for the recruitment and staffing sector, RCSA, said that the environment caused by this decision is unsustainable for business and needs to be resolved outside of the court system.

“Make no mistake, this is a decision that has enormous ramifications for all employers of casual staff, not just Labour Hire operators,” he said.

“If just one quarter of Australia’s 2.5 million casual employees look to ‘double dip’ on entitlements as a result of the uncertainty caused by the ruling, the liability for Australian business would run into the billions.

“Worse still, the whole situation is not the result of design, but rather an error in the drafting of the Fair Work Act. It needs to be fixed and it needs to be fixed now.

“If left unaddressed, the anomaly will put hundreds of thousands of casual jobs across the country at risk.”

The WorkPac Pty Ltd v Skene decision has created a pathway for an employee to be deemed a permanent employee at the same time as being paid as a casual employee. It has paved way for casual employees to accept a casual loading in lieu of permanent employee benefits but then still legitimately claim a right to the very leave they accepted the loading in place of.

It will leave business uncertain about employing casual workers but unable to realistically offer permanent employment for the roles in question. The decision has shone a light on a significant anomaly that exists within the current Fair Work Act which needs to be remedied immediately.

“You can’t have the Fair Work Act not respecting Awards and Enterprise Agreements,” Charles said.

“The ability of the Act to be interpreted in this fashion creates enormous uncertainty for business in Australia and highlights the huge difficulty that exists for employers in complying with unclear law.

“It creates a ‘super employee’ category that has not existed previously, nor was it ever the intention of legislation to create.

“The Government and the Opposition need to work together to resolve this situation as a priority. If this interpretation of the Act is upheld, it will turn employers away from creating employment pathways for Australians through casual work.”

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