The Australian, April 1, 2019
Unions have launched another legal bid to expose small business to up to $8 billion in “double-dipping” claims from casual workers for leave loadings already paid, as Bill Shorten prepares to remove government laws designed to protect employers.
The Construction Forestry Maritime Mining and Energy Union has appealed to the Administrative Appeals Tribunal, claiming offsetting previous leave and redundancy loadings paid to casual workers was illegal and “contrary to public policy”. That undercuts Labor’s public argument that the removal of the Coalition’s regulation in the Senate will not adversely affect small business and that the regulation only recognises the existing law.
Industrial Relations Minister Kelly O’Dwyer used the union’s legal attack to challenge Labor’s position. “It’s about time Labor chose to stand up for small business,” she said yesterday.
“Being forced to pay entitlements twice is unfair and potentially crippling for many small businesses. Small businesses should have the confidence they won’t have to pay for workers’ entitlements twice, but Labor is creating uncertainly and fear in small businesses across Australia.’’
Labor has appealed to small business in the past two weeks, offering tax cuts, incentives on investment, and casual employment certainty. The party’s workplace relations spokesman, Brendan O’Connor, who has defended Labor’s plan to disallow the “double-dipping” law, said last Thursday that: “Our tax cuts for small business are better than those of the government.’’
But small business groups want Labor to drop the disallowance motion and for crossbench senators to help protect the new law.
The ACTU and the mining division of the CFMEU have campaigned politically and within the courts to change the employment laws for casuals to convert more jobs to full-time and to seek extra payments for casuals going back to 2013.
Labor has moved in the Senate to disallow a Coalition regulation that allows small and family businesses to “offset” leave loadings already paid to casual workers against claims from previous staff for extra holiday and leave loadings.
The Australian Industry Group has warned that the removal of the protections, put in after a successful CFMEU legal challenge last year over extra payments, could cost more than three million small businesses between $5.7 billion and $8bn, forcing many to close. Last August, the Federal Court ruled in favour of a union-backed and funded claim in the WorkPac v Skene case that casual workers were entitled to annual leave and redundancy pay, despite getting special leave loadings.
Ms O’Dwyer lodged a regulation in the Senate in December to stop “the crippling of many small businesses” by being forced to pay twice for leave entitlements. “Every employer must comply with their legal obligations but being forced to pay for entitlements twice is unfair,” she said.
The regulation said where an employer had paid “an identifiable casual loading to an employee engaged as a casual”, that would be offset against any claim for extra entitlements.