Casual flight attendant awarded over $8,000 in long service leave entitlements after tribunal confirms she was not ‘double-dipping’.

The Queensland Industrial Relations Commission (QIRC) has rejected an employer’s claim that a casual flight attendant who served more than 10 years was ‘double-dipping’ on a claim for long service leave (LSL) entitlements.

Maurice Alexander Management (MAM) argued that it paid casual loading to the flight attendant to cover her entitlement to LSL under the Flight Attendants’ Association of Australia Domestic/Regional Division Casual Flight Attendants Enterprise Agreement 2006. The federal agreement states that the casual loading was “in lieu of any entitlement to paid annual leave, paid personal leave (including sick leave), long service leave or payments for notice of termination or redundancy”.

However, Industrial Commissioner John Dwyer ruled that the loading “is not designated as payment towards any specific entitlement” but “to compensate whatever contingency (or combination of contingencies) might arise with respect to each individual employee covered by the 2006 agreement, and only during the life of that agreement”. Dwyer awarded the employee over $8,253 in LSL entitlements.

The WorkPac backdrop

MAM argued that the clause in the employee’s contract removed her entitlement to LSL. However, when Dwyer examined this exclusion clause he noted that it “does not allow for the exclusion of [the flight attendant’s] service during the period of the 2006 agreement for any subsequent calculations of LSL entitlements.”

Dwyer added that the provision attempted to impose “a blanket exclusion on a broad range of statutory entitlements that might (or might not) become vested in an employee during the life of the agreement”. He said the clause made it clear that the employer “was prepared to pay the loading regardless of whether the employees covered by the 2006 agreement were (or would become) entitled to all of the entitlements named”.

This case comes on the heels of two fairly recent court decisions on casual employment and ‘double-dipping’ entitlements.

In WorkPac v Rossato, the Federal Court of Australia confirmed that labelling an employee as a ‘casual’ in a contract does not offset their separate entitlement to paid leave, which the Fair Work Act guarantees to all permanent employees. Essentially, the post-contractual nature of the relationship was found to be impactful in determining a workers’ employment status.

Rossato confirmed an earlier Federal Court decision from 2018, WorkPac v Skene. This case questioned the “essence of casualness”, finding that a casual employee is someone who is engaged to do “inconsistent, irregular or short term” work. Those who don’t fit that description are now able to claim they are a permanent staff member and therefore entitled to the benefits that go along with that (i.e. paid leave, sick leave, LSL). 

How this fits into the wider landscape

The two WorkPac rulings have spurred the federal government into action to address the potential $39 billion in liabilities owed by employers because of these decisions.

In December 2020, it introduced an industrial relations omnibus bill (read HRM’s breakdown here), which aims to reform five areas of industrial relations – causal employment, Award simplification, JobKeeper extensions, underpayment issues and enterprise agreements.

As HRM wrote at the time, the proposed bill aims to provide clarity around casual workers by introducing a new definition of a ‘casual employee’ in the Fair Work Act.

“Under the new definition, a person is a casual employee if they’re offered employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work, according to an agreed pattern of work for the person, and the employee accepts the offer on this basis,” employment lawyer Aaron Goonrey wrote at the time.

“For example, if an employee is offered work with no promises made about receiving regular, ongoing shifts in the future – such as working the same hours every weekend moving forward – then the employee is likely to be considered a casual.”

The bill, which has been compared to the controversial WorkChoices legislation of 2005, aims to provide greater certainty for businesses with a large majority of casual employees affected by the court rulings on double-dipping. It also introduces wage theft provisions for employers to tackle underpayments, while enhancing flexibility to implement enterprise agreements in all industries. 

Passing the bill in its current form will unlikely be easy, with both unions and the Labor Party signalling they will strongly oppose its introduction. At this stage, we will all be watching on to see the proposed variations from those on the other side of the fence. Watch this space.

 A new casual employment definition is just one of many workplace changes we will experience in 2021. Find out how to support the needs of your people this year with AHRI’s webinar Reshaping our workforces and workplaces for the future. AHRI members can sign up for free to the event on February 17th and non members can pay $50 to attend.