Fair Work Act 2009

This section applies if:

a person is employed by an employer in circumstances where the employment is described as casual employment; and

the employer pays the person an identifiable amount (the loading amount) paid to compensate the person for not having one or more relevant entitlements during a period (the employment period); and

during the employment period, the person was not a casual employee; and

the person (or another person for the benefit of the person) makes a claim to be paid an amount for one or more of the relevant entitlements with respect to the employment period.

For the purposes of paragraph (d), another person making a claim for the benefit of the person could include an inspector or an employee organisation.

When making any orders in relation to the claim, a court must reduce (but not below nil) any amount payable by the employer to the person for the relevant entitlements (the claim amount) by an amount equal to the loading amount.

If the claim is below a certain amount, the person may choose to use the small claims procedure: see section 548.

Despite subsection (2), the court may reduce the claim amount by an amount equal to a proportion (which may be nil) of the loading amount the court considers appropriate, having regard only to:

if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for and specifies the proportion of the loading amount attributable to each such entitlement—that term (including those proportions); or

if a term of the fair work instrument or contract of employment under which the loading amount is paid specifies the relevant entitlements the loading amount is compensating for but does not specify the proportion of the loading amount attributable to each such entitlement—that term and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances; or

if paragraph (a) or (b) does not apply—the entitlements referred to in subsection (4) and what would be an appropriate proportion of the loading amount attributable to each of those entitlements in all the circumstances.

A reference in this section to a relevant entitlement is a reference to an entitlement under the National Employment Standards, a fair work instrument or a contract of employment to any of the following:

paid annual leave;

paid personal/carer’s leave;

paid compassionate leave;

payment for absence on a public holiday;

payment in lieu of notice of termination;

redundancy pay.

To avoid doubt, an entitlement referred to in subsection (4) includes any such entitlement that has accrued but is untaken.