I often laugh about the term “permanent casual” when I hear it thrown around like it has some legal meaning. Obviously, the legal concepts of permanent employment and casual employment are at opposite ends of the spectrum in a strict legal sense. However, after years of reading about the “casualisation” of the Australian workforce, it seems the casual workers are hitting back.
This week, on “World Day for Decent Work” (who knew?) the ACTU announced that it would be seeking an amendment to all Modern Awards as part of the 4 yearly review which is presently underway. The amendment will seek to allow casual employees the right to become permanent.
Whilst the actual amendment sought has not yet been submitted to the Fair Work Commission, the ACTU said in its media release that the purpose of the amendment is "to recognise people who are permanent workers in everything but name”*. This notion brings us back to the old term “permanent casual” which I now know - to many employers - means casuals who work regular rosters and have been employed for many years.
So why should these workers be afforded the opportunity to become permanent when their employer requires the flexibility of casual employment and pays them the 25% casual loading to compensate them for the lack of entitlements (like paid annual leave, paid sick leave, notice of termination and redundancy pay)?
There is no denying that we strongly agree that all employees deserve to be treated fairly and with dignity and respect, but casual employees already share many of the employment rights and entitlements of permanent employees, such as:
- Unfair Dismissal: Casuals who have met the applicable minimum employment period and been employed on a regular and systematic basis and have a reasonable expectation of continuing employment on a regular and systematic basis, already have access to unfair dismissal.
- Other Legal Claims: Casual employees also have the same rights as other employees in respect to discrimination, bullying, adverse action, workers’ compensation and other workplace claims.
- Parental Leave: Casuals who have been employed by their employer on a "regular and systematic basis for a sequence of periods of employment during a period of at least 12 months" and have a "reasonable expectation of continuing employment by the employer on a regular and systematic basis" will be entitled to access a period of 12 months' unpaid parental leave and provided they meet the eligibility criteria will also have access to the Government funded paid parental leave scheme.
- Right to Request Flexible Work: Eligible casuals who have been employed by their employer on a “regular and systematic basis for a sequence of periods of employment during a period of at least 12 months” and have a “reasonable expectation of continuing employment by the employer on a regular and systematic basis” also have the right to request flexible work arrangements.
- Long Service Leave: Casuals employed for lengthy periods already have access to long service leave under State based legislation.
- Casual Loading: The 25% casual loading more than compensates for the annual leave and personal/carer’s leave entitlements of a permanent employee (which equates to roughly 13%).
- Existing Casual Conversion Clauses: Casuals who have been employed by an employer for a period of 6 or 12 months under a Modern Award (depending on which one) generally have the right to request to become permanent.
- Minimum Shifts: Casuals employed under Modern Awards generally have minimum shift requirements.
In a time where SMEs already find the red tape of our labour law system difficult to manage, a proposition which is premised on reducing what little flexibility remains for businesses regarding casual employees, scares many of our clients.
According to the Australian Bureau of Statistics**, about 20% of Australia’s workforce are casual employees. If the ACTU’s submission gets traction and is adopted by the Fair Work Commission there is no doubt that we will see a reduction in this figure. Perhaps then we will see a shift to the “de-casualisation” paradigm? We’re interested to find out, but we know that there are many business owners and HR managers who are not.
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* "New Push to Give Casual Workers the Right to Permanent Work" Media Release; Australian Council of Trade Unions; 7 October 2014
** "Forms of Employment 2013"; Australian Bureau of Statistics; 7 May 2014