Kelly O’Dwyer will intervene in a Federal Court case about casuals

Kelly O’Dwyer will intervene in a Federal Court case about casuals following employer concern workers will be able to “double dip’’ on entitlements.

Minister for Jobs and Industrial Relations Kelly O'Dwyer.

Jobs and Industrial Relations Minister Kelly O’Dwyer will intervene in a Federal Court “test case’’ about casuals, following employer concern that workers will be able to “double dip’’ on their entitlements.

The Federal Court will today consider a new application by WorkPac, the company subject to a controversial court ruling on casuals.

WorkPac is seeking declarations that a former employee, Robert Rossato, was a casual employee and not entitled to be paid leave entitlements.

The move is in response to a full bench of the Federal Court finding in August that a casual truck driver, Paul Skene, was not a casual because of the regular and continu­ous nature of his work on a fixed roster, and was entitled to receive accrued annual leave pay.

Ms O’Dwyer said today the Government had decided to intervene to make the Commonwealth a party to the proceedings.

“It is important for me to intervene in this case given the considerable concern across Australia’s three million small businesses and given the impact it could have on job creation and existing jobs,’’ she told The Australian.

“Small businesses must be able to operate with clarity and certainty of the law, which will ensure not only their success, but the success of Australians employed in small businesses across Australia. Clarity and certainty strengthens compliance, which I am sure both employers and employees would welcome.

“The Government is very concerned that the legal right to offset an obligation against payments already made for the same entitlements was not dealt with in Skene v WorkPac. We want to make sure the same thing does not happen again.

“It must be made clear that the fundamental common law right to offset is available to small business employers if it faces claims to pay for the same entitlement twice.”

WorkPac decided not to pursue a High Court challenge to the full bench decision and the fresh legal action comes after widespread employer alarm that businesses could be subject to claims totalling billions of dollars.

ACTU secretary Sally McManus criticised the intervention by Ms O’Dwyer. “This threatens the job security of all permanent workers,’’ she said on social media. “We will fight this tooth and nail.’’

Kelly O’Dwyer steps in the back employers stopping rights from workers. This threatens the job security of all permanent workers. We will fight this tooth and nail https://t.co/SnssOE7qto

— Sally McManus (@sallymcmanus) October 17, 2018

Australian Chamber of Commerce and Industry chief executive James Pearson said businesses were deeply concerned at the prospect of double dipping and being asked to pay employees twice for the same entitlement.

“Very few businesses have the resources to pay twice for leave, particularly for claims that date back many years. Such claims will send many small businesses to the wall,’’ he said.

“It is welcome that the Minister for Jobs and Industrial Relations has intervened in the Federal Court today, to support a more sensible and sustainable approach. This will go part of the way to fixing damaging uncertainty presently surrounding casual employment.”

Australian Industry Group Chief Executive, Innes Willox also welcomed the intervention.

“Casual employment plays a vital role in Australia’s labour market,’’ he said.

“A loss in flexibility in this area would destroy competitiveness and jobs.

ACTU president Michele O’Neil called on Ms O’Dwyer to withdraw the intervention.

“This is the Minister once again coming down on the side of big business and against the pay and rights of ordinary workers,’’ she said.

“The court has rightly exposed that big business has been cheating workers out of their entitlements. To use taxpayer money to undermine that decision shows how biased and out of touch Kelly O’Dwyer and the Morrison Government are.

“There is a long history of case law about what makes a person a casual and it is very clear that people who have fixed and continuous work are entitled to accrued leave.

“Big businesses in the labour hire industry have been caught abusing the casual classification and they’re trying to escape paying working people the money they’re owed.”