Gemma Wheeler-Carver is a Solicitor in the Dispute Resolution and Commercial Litigation team at HHG Legal Group, and a new member of the BWA community. Gemma has been practising Law for 8 years, and has an extensive profile that crosses negotiating, drafting and managing exploration, and mining and land access agreements. Whilst also extending to employment and consultancy agreements and preparing funding submissions and corporate policies.
Gemma has also spent significant time providing assistance to various Aboriginal corporations under the CATSI and Corporations Act, including preparation of Rule Books and corporate compliance. Before joining HHG Legal Group, Gemma practised as a native title lawyer for five years working primarily on claims litigation and mediation in the Federal Court of Australia and the National Native Title Tribunal, both with the Central Desert Native Title Services. While living in Canada, Gemma also provided these services to the Yilka Aboriginal Corporation.
For business owners and employers who utilise casual employees, Gemma recommends that casual employees should be employed under an employment contracts that sets out that the employee is a “casual” employee. She also suggests that the contact clearly states the amount being paid to the employee that is intended to, and does, compensate for the employee not having one or more relevant NES entitlements.
Gemma explains why this is important. In December of 2018, the government introduced a new regulation into the Fair Work Regulations 2009 (Cth) in the wake of the Federal
Court’s Skene decision in Workpac v Skene.
Despite the fact that Skene was described as a casual in his contract and benefitting from casual loading – Skene was deemed a permanent employee and therefore entitled to annual leave in line with the National Employment Standards (NES).
This was because the loading had not been clearly expressed as an amount or percentage of his wages in Skene’s contract or elsewhere, and because there was no other actual evidence which indicated that Mr Skene was a casual. The Federal Court did observe that, where a casual loading is clearly expressed, the employee would not be entitled to ‘double dip’ and an employer may be able to set off any casual loading amounts against any claim for NES entitlements.
Gemma stresses that as far as possible, all casual employees should be employed under a clear employment contract that sets out that they are a “casual” employee AND their contracted payment amount is intended to, and does, compensate for the employee not having one or more relevant NES entitlements. If you hire casual employees and you’d like advice specific to your situation don’t hesitate to contact Gemma.