- by Anna Pha
- The Guardian
- Issue #1947
The centrepiece of the Coalition government’s industrial relations Omnibus bill is the schedule on casual employees. Industrial Relations Minister Christian Porter boasts that the bill will “solve the problem of uncertainty, provide better avenues for job security, remove the burden of double-dipping claims and recognise employee choice.”
Well, it certainly removes the “burden of double dipping,” to the tune of billions of dollars for employers – wage theft!
The claim is deceptive, to say the least. The only certainties that Porter is offering casuals are denial of leave entitlements, low wages, poverty, and job insecurity. As for employers, they will find it even more attractive to replace permanent workers with casuals.
Casuals have been amongst the hardest hit during the pandemic not only in losing jobs, having hours reduced but also in many instances finding they did not qualify for JobKeeper. They accounted for around two-thirds of workers who lost their job early in the pandemic (ABS Media Release 11/12/2020).
The bill defines a worker as “casual” if, at the time of being hired, the offer of employment is made “on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work …”; the worker accepts the offer on that basis; and is employed as a result of that acceptance.
The bill contains conditions that must be met when the offer is made: “whether the worker can elect to accept or reject the work; will work only as required; will be entitled to a casual loading or a specified rate of pay for casual employees; the employment is described as casual employment. These are the only factors that can be considered.” (emphasis added)
The bill remains silent on the question of how wages and conditions are determined. The employer makes the offer.
In theory, there is a choice – to accept or reject an offer of employment – but in reality, if it is a choice between the door or a highly exploitative situation in the context of close to one million unemployed and another 1.4 million underemployed this “choice” is hardly a choice!
Porter describes the bill as “clearing up confusion and uncertainty surrounding the legal status of casuals.” It certainly does. It sets in concrete the lack of leave and other entitlements found in the National Employment Standards (NES), awards and enterprise bargaining agreements (EBAs). It also sets in concrete the lack of job security and uncertainty of future employment.
This is particularly the case in the so-called Casual Conversion provisions which Porter describes as “providing a clearer pathway for those working regular shifts to convert to permanent roles after twelve months if they wish to do so.”
But does it?
The bill obliges employers to make a written offer to a casual employee if they have been employed for the past twelve months and during at least the last six months of that period, the employee worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full‑time employee or a part‑time employee (as the case may be).
The offer must either be for part-time or full-time work depending on the hours worked during the past six months. The worker must either accept or reject the offer in writing.
The bill then provides for an employer NOT to make a conversion offer in spite of the above conditions being met:
there are reasonable grounds not to make the offer; and
the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.
What’s more, the section defining casual worker states: “To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.”
That lets employers off the hook, in particular during the pandemic and coming years when there is no certainty.
Also, an employer wishing to avoid conversion could easily do so by shuffling work patterns, creating breaks in employment, etc. only hurting the workers on the receiving end. Imagine a sole parent, the majority being women, attempting to tackle constantly changing hours.
Employers having nothing to fear here! They are on a winner with casuals. In practice, no obligation to convert casuals to ongoing part-time or full-time work with full entitlements as set out in the National Employment Standards, the relevant award or enterprise bargaining agreement (EBA).
If for some reason a worker declines an offer of ongoing work then they must wait six months before being able to request conversion. Likewise, if the employer refuses to make an offer, such as “for reasonable grounds” when the worker initially became eligible, there is a six-month waiting period.
There is a time limit of twenty-one days in which to apply. The employer is required to respond in writing with reasons for decision. These must be based on “reasonable grounds,” whatever that means.
Porter, in true Coalition style, offers casuals “protection”! “An employer must not vary an employee’s hours of work, or terminate an employee’s employment, in order to avoid any right or obligation.”
This would be laughable if it were not so serious. Employers use every loophole they can find and the provisions of the bill leave workers more vulnerable than ever. The employers and lawyers are the beneficiaries.
Retrospective gift to employers
More than twenty per cent of the workforce is classified as casual, but a large number of these workers are in ongoing employment with regular hours. As casuals, they have not been entitled to the leave provisions, for public holidays as worked, notice of termination or redundancy pay as required under the NES but are entitled to a twenty-five per cent loading in their wages – not that employers always pay it.
Mention casuals and industries such as hospitality, retail, accommodation come to mind, but casuals are also employed extensively in other areas such as construction, mining and transportation and postal services. In construction, casual labour through either labour hire or “on the books” has become the business model.
In two recent cases, WorkPac v Rossato and WorkPac v Skene, relating to the mining sector, the High Court found that “casuals” who worked regular and predictable shifts and a specific loading was not recorded in their employment contract, were owed permanent employee entitlements.
It also determined that their claim could not be reduced by the amount paid as a casual loading amount had not been specifically been identified in the employment contract. The Court found that Rossato and Skene could not be classified as casual employees.
The Court also noted that there was no legal definition of “casual” and listed grounds to be considered in any such claim. These include lack of continuity in employment, unpredictability, uncertainty as to the period of employment, and irregular work patterns.
Porter estimated it could cost employers as much as $39 billion in back payments. Other estimates were even higher. This figure alone is indicative of widespread use of casual labour.
Panic-stricken employers responded with cries of “double dipping” while demanding certainty and clarity. The government’s response to their demands is found in the Omnibus bill, in particular the definition of “casual.”
In addition, the bill contains provisions ensuring that where a worker identified as casual is found by the court not to be a casual, then the court must reduce any amount payable by the employer by an amount equal to the leave loading.
This section is retrospective, protecting employers who may be facing claims for past payments. The dangers of denying workers entitlements to leave provisions became evident during the pandemic when sick workers were faced with the choice of staying home with no income or going to work and risking the health of others.
The bill might “end confusion and uncertainty surrounding the legal status of casuals,” but it does not provide “a clearer pathway for those working regular shifts to convert to permanent roles after 12 months if they wish to do so.”
It is more likely to result in employers ensuring casual workers DO NOT have regular hours and uninterrupted employment.
The title of the bill – Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 – is misleading. It will NOT do anything of the sort. It encourages employers to take on more casuals in place of full-time and part-time workers.
Casuals are notoriously underpaid. They are amongst the lowest paid and most vulnerable workers. This will only drive down the wages and working conditions of ALL workers, resulting in lower living standards and hardship. It will not result in the creation of “real” jobs.
In terms of economic outcomes, lower wages mean reduced demand for goods and services. In the long-run they will be counter-productive.
There will be a Senate inquiry into the Bill. Submissions close on 5th of February. It is not too late to make a submission.
It is important that work commence now on organising a broad campaign to defeat the bill. Lobby your Senators, in particular the ALP and cross-bench Senators. A movement bringing together trade unions and community organisations and individuals similar to the Your Rights @ Work campaign that saw the defeat of the Howard government takes time to build.