Industry fuming over Labor leave loading plan

Industry is warning of a potential severe threat to small business – including many printers – if a Labor plan to scrap a regulation preventing casual employees from claiming leave entitlements makes it through the Senate.

The move, to be introduced by the party on Monday, seeks to overturn a regulation allowing employers to offset already-paid loadings against entitlements ordered to be paid to workers who say they were misclassified as casuals.

It would force employers to stump up years of what would be classed as unpaid entitlements to casual employees, even though they would have been on the higher casual rate all that time. It could cost employers an estimated total of $8bn in back pay according to industry groups, and for many print businesses, finding the cash could be severely problematic.

Already the class action law firms are seeking to get involved, smelling rich pickings from multiple businesses.

The regulation came about following last year’s Skene decision by the full Federal Court, which held that WorkPac had to pay truck driver Paul Skene annual leave and other permanent entitlements due to his regular and predictable shifts.

Sam Puri, industrial advocate at PVCA, said he was disappointed that Labor is seeking to “create further uncertainty” for businesses who employ casuals, especially SMEs.

“After the confusion that the Skene decision created, this is the last thing they need. Casual employees are paid a casual loading instead of receiving paid annual leave; however, we have already seen claims for unpaid annual leave being made in the mining industry. These claims are worth millions of dollars, and if successful, it means employers would have to pay twice,” he said.

Puri told Print21 that the regulation introduced last December provided certainty and comfort for businesses in the print, packaging, and visual communications sectors.

“Currently, if a business pays a casual employee a clearly identifiable casual loading, the loading can be potentially offset against the claim for unpaid annual leave; however, if the Opposition gets its way, employers could be liable for both a casual loading and unpaid annual leave. Surely, that doesn’t pass the pub test,” he said.

Labor though is committed to pushing the legislation, arguing that the status quo allows for employers to have more or less permanent staff under the casual banner, so escaping many of the responsibilities that go with permanent staff.

Tony Burke, Labor’s industrial relations spokesperson, said that the Skene decision showed that it was the employers – not the employees – who were double dipping.

“They’re taking advantage of the insecurity of casual work while still getting permanent hours out of their workforce.

“Labor will always oppose Liberal attempts to erode the rights of workers,” he said.

Burke added that, though the legal impact of the regulation and its disallowance would be limited, the principle is important.

“Casual work is meant to be just that: casual. Using casual contracts for jobs that are in fact permanent is an abuse,” he said.

The proposal is supported by Labor and the Greens; it is not likely to pass the Senate, with One Nation opposed and Cory Bernardi expected to side with the Government against it. The Centre Alliance and Jacqui Lambie remain undecided.