The Australian Securities and Investment Commission (ASIC) has released new guidance requiring companies to make provision for unpaid entitlements to casual employees in the wake of the Federal Court’s decision in Workpac v Rossato.
ASIC advises both public and private companies must assess their ‘permanent casual’ liability against the principles in the decision and carry a provision for any potential liability in their disclosable accounts going forward.
This potential liability should provide for additional annual leave, personal and carer’s leave, compassionate leave, public holiday pay, and redundancy payments for current and former ‘casual employees’ who were employed in circumstances covered by the Rossato decision.
The decision handed down in May, which is subject to a pending High Court appeal, held that where there is a firm advance commitment to work, casual employees are entitled to back-paid entitlements which cannot be offset by any casual loading already paid.
Regulator’s advice creates more concern – AMMA’s view
AMMA notes the Attorney-General and Minister for Industrial Relations, Christian Porter, has publicly said it is “appropriate that ASIC issue guidance on potential legal liabilities”.
Notwithstanding this, it is AMMA’s view the advice from ASIC creates more concerns for businesses that are now being required to assess and report on potential liabilities for casual employees as far back as six years, in the middle of a recession.
The advice also appears contradictory to that of the Fair Work Ombudsman which has advised AMMA members in private briefings that it is a reasonable position for employers to maintain their existing workforce arrangements until this matter, and the Mondelez matter related to personal leave accruals, are settled by the High Court.
This latest development affects all businesses in the resources and energy industry subject to the Corporations Act 2001.
AMMA’s expert workplace consultants are available to assist members with assessing their exposure to the Rossato decision and the potential liabilities relating to casual employees.
In addition, AMMA continues to advocate to the Australian Government a permanent legislative resolution to the issue of casual entitlements that will not see businesses face potential insolvency.
To discuss any of these issues, including your individual business circumstances, contact AMMA’s specialist workplace relations team today.
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