Federal Attorney-General and Industrial Relations Minister, Christian Porter, has drafted legislation which when passed by both houses of Parliament will bring some much-needed reform.

Importantly this legislation seeks to deal with the current uncertainty relating to casual employees. In principle, this has occurred because previous legislation did not adequately define casual employees.

The new legislation defines a casual worker as one whose employment is offered without any firm advance commitment that work will continue indefinitely, follows an agreed pattern of work, and the employee accepts the offer on that basis. Employers will be required to offer part-time or full-time roles to employees after 12 months if they have worked a regular pattern of hours for the previous six months.

There is no doubt that Minister Porters decision to draft new legislation was largely driven by the Federal Courts judgement in the Skene case which determined that casual workers who worked regular hours were not casual and would therefore be entitled to annual and sick leave paid at the casual rate irrespective of the fact that the employee had been paid a 25% levy in place of accruing any leave. This would be tantamount to double-dipping!

In the event, The High Court has granted leave to appeal the Federal Court Judgement. This will be heard in the new year and whilst we can’t predict the outcome hopefully the High Court will overturn the lower court case. This would simply be common sense given the potential damage that may be caused to businesses.

Whilst there are several forecasts as to the potential cost to employers should the judgement not be overturned on appeal to the High Court we understand that the total contingent liability to employers could be as high as $39 billion. Needless to say, such an impost would have the potential to bankrupt many businesses who had done nothing other than abide by current awards and pay their casuals a 25% loading.

Certainly, the new legislation, provided it is passed by both houses would provide much more certainty to the business community when employing staff as the definitions between casual and full time would be clearly understood.

We also understand that the legislation may include the provision of a single rate for some awards that will overcome many of the penalties and allowance’s contained in current awards. Whilst the no worse off provisions would apply this would make managing payroll much simpler to do.

Perhaps some good news for employers at last!!