FAIR WORK LAW UPDATE: Offsetting Rules For Casual Loading Payments

Employers who incorrectly classify employees as casual instead of full-time or part-time could be responsible for back paying various entitlements under the National Employment Standards (NES), following a recent Federal Court of Australia decision

However, the Government has varied the Fair Work Regulations 2009 to introduce a new rule that clarifies that employers, in certain circumstances, may claim that an employee's casual loading payments should be offset against certain NES entitlements owing to the employee.

This regulation comes into effect on 18 December 2018.

The new regulation applies where all of the following criteria is met:

an employee is employed by their employer on a casual basis

the employee is paid a casual loading in lieu of receiving entitlements that casual employees are not entitled to under the NES, such as personal or annual leave

despite being classified by the employer as a casual, the employee was in fact a full-time or part-time employee for some or all of their employment for the purposes of the NES

the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they didn't receive for all or some of the time that they were incorrectly classified as a casual.

If all of these points are satisfied, an employer can make a claim to have the casual loading payments made to the employee taken into account when working out the entitlements owing to the employee for the relevant NES entitlements.

ISOsafe can assist your business in correctly classifying you employees, as well as, complying with all other Fair Work requirements. Contact us today on 1300 789 132 for a free review.

The new regulation applies to employment periods that occurred before, or that occurred on or after, 18 December 2018.

QLD LAW UPDATE: New Labour Hire Licensing Act 2017 - Private Employment Agents

The Labour Hire Licensing Act 2017 responds to evidence of serious exploitation of vulnerable labour hire workers and to inappropriate labour hire business practices, and establishes a mandatory licensing scheme for all labour hire providers operating in Queensland.

Media investigations, and government and parliamentary inquiries brought to light evidence of inappropriate business practices, such as:

underpayment, or non-payment of workers' wages, taxes and superannuation

not providing workers' compensation cover

not providing appropriate safety equipment or training

housing workers in substandard accommodation

forcing workers to use particular travel services at inflated prices

serious mistreatment of workers, including sexual harassment

withholding workers' passports

avoiding responsibilities by creating a new company to continue the business of a company that has been deliberately closed to avoid paying its debts, including employee entitlements and taxation obligations (phoenixing)

undercutting legitimate labour hire businesses as a consequence of not meeting legal obligations to workers and others.

The scheme applies to labour hire providers (Private Employment Agents) operating in Queensland and those who use labour hire services as of April 2018.

Labour hire providers must be licensed to operate in Queensland and users of labour hire services must only use licensed providers.

Labour hire providers are broadly defined as a person (individual or business) that in the course of carrying on a business, supplies to another person a worker to do work. The workers are paid by the supplier for the work they do for the labour hire user.

ISOsafe can help your labour hire agency (Recruitment Agency) comply with these new requirements. The licensing criteria includes compliance with:

Safety and workers' compensation laws

Workplace health and safety laws

Coal Mining Safety and Health Act 1999 (Qld)

Electrical Safety Act 2002 (Qld)

Explosives Act 1999 (Qld)

Heavy Vehicle National Law Act 2012 (Qld)

Mining and Quarrying Safety and Health Act 1999 (Qld)

Radiation Safety Act 1999 (Qld)

Safety in Recreational Water Activities Act 2011 (Qld)

Work Health and Safety Act 2011 (Qld)

any other applicable safety law

Corresponding state, territory or Commonwealth laws

Workers' compensation laws

Workers' Compensation and Rehabilitation Act 2003 (Qld)

Corresponding state, territory or Commonwealth laws

Labour laws

Fair Work Act 2009

Fair Work Regulations 2009

Frequently Asked Questions (FAQs):

Who is responsible for enforcing compliance with the new laws?

Labour Hire Licensing Compliance Unit (LHLCU) is responsible enforcing compliance with Labour Hire Licensing Act 2017 (the Act) and the Labour Hire Licensing Regulation 2018

What are the penalties for offences?

Labour hire providers who do not comply with the Act are liable for a range of penalties. These include fines, suspension or cancellation of a licence and imprisonment.

The most serious offences for labour hire providers are:

providing labour hire services in Queensland without holding a licence

entering into avoidance arrangements.

These offences have a maximum penalty of three years imprisonment, or a fine.

What are Recruitment/Labour Hire (License Holder) Companies ongoing reporting obligations?

These reports will include information on your business, but more specifically:

the number of workers engaged

details on the type of work carried out by the workers, including the industry in which the work was carried out

the locations, in Queensland, where work was carried out by the workers

any accommodation provided to the workers, or any other services

information about the licensee’s compliance with relevant laws for the reporting period

disclosure of any disciplinary action or enforcement action taken

disclosure of any incidents involving a worker notifiable under the Work Health and Safety Act 2011

disclosure of any applications for compensation made by a worker under the Workers’ Compensation and Rehabilitation Act 2003

Contact ISOsafe today to ensure your Employment Agency complies with the Queensland Labour Hire Licensing Act on 1300 789 132.