The amendment provides employers with the ability to make a claim for casual loading amounts to be taken into consideration when determining any amounts payable to employees in lieu of relevant NES entitlements.

The recent Federal Court of Australia decision of Workpac v Skene [2018] FCAFC 131 found employers could be required to back pay various NES entitlements to employees who have been incorrectly classified as casual. The introduction of these regulations provides employers with the ability to offset the casual loading received by the employee with the NES entitlements, preventing casual employees from receiving both entitlements.

The Fair Work Amendment (Casual Loading Offset) Regulations 2018 apply to employees who:

• has been employed as casual; and
• has received a loading which is clearly identifiable as payment to compensate them for not having one or more NES entitlements during their employment; and
• during their period of employment, should have been a full-time or part-time employee for the purposes of the NES; and
• make a claim to be paid an amount in lieu of one or more of the NES entitlements.

Employers will be provided with the right, under the new regulations, to claim to have the loading received by the employee, to be taken into account when determining any amount payable.

The regulation took effect on 18 December 2018.