Paid Sick Leave for Casuals in Victoria – what does this mean for employers?

Last week, the Victorian Premier Daniel Andrews, announced an Australia-wide first scheme, offering a sick pay guarantee for casual workers in Victoria. Naturally, this has sparked an abundance of questions from employers and employees alike, so the ER Strategies team has broken down the key information below.

To be clear, this is a state-based initiative and applies exclusively to eligible casual employees in Victoria. Information relating to the scheme is limited, and primarily focuses on how employees can access the scheme. Commentary around how this scheme interacts with the definition of casual employment and casual loading under the federal workplace law also is not yet available.

What is casual employment?

A person is a casual employee if they accept an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

Casual employees who are paid under an award or enterprise agreement are entitled to a ‘casual loading’ of 25% as an additional amount on top of the equivalent permanent employee’s base rate of pay.

The ‘casual loading’ is to compensate casual employees for not receiving paid entitlements under the NES and the applicable industrial instrument, that otherwise apply to permanent full and part time employees. Paid entitlements include but are not limited to annual leave, personal/carer’s leave, paid compassionate leave, payment for absence on a public holiday, payment in lieu of notice of termination, and redundancy pay.

What has the Victorian government announced?

As per the above, casual employees do not have access to paid leave under the Fair Work Act 2009.

The Andrews Labor Government has acknowledged that throughout the pandemic, casual staff especially were forced to choose between a day’s pay or taking the day off of work, because they will ill or injured or caring for a family or household member who was ill or injured. In response, the Victorian Government is trialling a $245.6 million scheme, which will provide a safety net to eligible casual employees where they need to take time off because they are sick of injured, or to care for loved ones who are.

Eligible casual and contract workers in certain occupations will now receive up to five days a year (a maximum of 38 hours) of sick or carer’s pay at the national minimum wage, approximately $772.60 at the time of publishing this article.

This is a state-based scheme which sits completely outside of an employee’s entitlements under the Fair Work Act 2009.

The Andrews Government has introduced a two-year pilot program, which for this period will be fully funded by the Victorian government. The scheme will be administered by the Victorian Government directly to workers. What happens beyond the pilot period, including questions about how the scheme will be funded in the future, have not yet been addressed.

At this point in time, employers have no responsibility under the scheme, with the exception of verifying an employee’s absence or work details if requested by the relevant authority.

What entitlements do casual employees have access to, under the scheme?

Eligible casual and contract workers in certain occupations will need to register their intent to claim with the Victorian Government directly and satisfy the applicable evidence requirements.

To be eligible, employees must: –

  • be 15 years old or older,
  • be a casual employee, or self-employed with no other employees (e.g. sole trader or independent contractor),
  • not have an entitlement to sick leave in any jobs held by the employee,
  • work physically in Victoria,
  • have the right to work in Victoria,
  • work in an eligible occupation, and
  • work on average at least 7.6 hours per week.

Occupations included in the first phase include hospitality workers, food trades workers and preparation assistants such as chefs and kitchen hands, supermarket and supply chain workers, retail and sales assistants, aged and disability care workers, cleaners and laundry workers and security guards.

Employees can review their individual eligibility for the scheme by visiting the Victorian Government website.

Next steps for employees

As this is an initiative directly available to employees via the Victorian Government, employers are not responsible for providing guidance on an employee’s eligibility for the scheme, how an employee can register for the scheme, or how an employee can make a claim through the scheme.

Details relating to all questions a casual employee may have about the scheme can be addressed by the employee (or their parent/guardian) visiting appropriate government websites and hotlines. Suggested resources include:

Next steps for Employers

Again, this scheme operates directly between the Victorian Government and eligible employees. Employers have a limited involvement in the scheme; however, employers may be requested by their employees for evidence confirming their employment for the purpose of making a claim or may be contacted by relevant Government departments to verify an employee’s absence, once a claim has been made.

Whilst it is likely employers have already experienced instances of casual employees requiring time off for illness or injury, it is possible that employers will experience an increase in casual employees taking time off to deal with illness/injury or care responsibilities, if they are eligible for the scheme. Employers must tread carefully when assessing the validity of any absences for illness or injury and ensure that employees experience no detriment for taking time off to deal with illness/injury, as this could possibly leave the employer exposed to a General Protections claim.

Client employers can seek expert advice from ER Strategies relating to these matters where suitable, by calling us on 1300 55 66 37.

Final comments

ER Strategies will continue to watch this space as the scheme develops and employees start to access this entitlement. Questions around how this scheme considers the payment of casual loading under applicable industrial instruments by employers in lieu of paid leave entitlements remain unanswered, along with an ability for employers to seek suitable evidence to support the absence of casuals on rostered shifts.

Please review the resources relating to the scheme as highlighted above for a more detailed account of the process required by employees accessing the scheme.

Clients of ER Strategies can contact the team on 1300 55 66 37 to address any questions you may have after reading this article.

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