Australia's laws have allowed employers to exploit loopholes in the Fair Work Act 2009 (FWA) and hire workers on an ongoing, casual basis without guaranteeing a minimum number of hours, a stable income and no obligation to provide long-term job security. These loopholes have been used as a deliberate tactic by employers to deny workers access to annual leave, sick leave, superannuation, unfair dismissal protection and other basic rights and entitlements under the National Employment Standards (NES). With approximately 2.7 million workers employed as casual employees it is vitally important that workers have the right to secure employment and a pathway to achieve it.
The issue of 'permanent casual' is not a new one, insecure work is increasingly on the way to becoming the norm, not the exception. The Australian Greens have long been aware of this and have been fighting to give workers the right to more secure employment since 2012. Mr Adam Bandt MP first introduced the Fair Work Amendment (Tackling Job Insecurity) Bill (the Tackling Job Insecurity Bill) in the House of Representatives in 2012 and again in March 2018. The Tackling Job Insecurity Bill provides a pathway for casual and rolling contract workers to move to ongoing employment on a part-time or full-time basis via a secure employment arrangement. Unions can seek orders regulating the use of insecure work in particular workplaces, industries or for particular kinds of work. Central to the Tackling Job Insecurity Bill is the presumption that all employees have the right to be ongoing employees unless there are serious, countervailing business reasons.
The Coalition Government introduced the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (the bill) into the House of Representatives in February 2019. The bill would insert casual conversion clauses into the NES, giving eligible employees the right to request to move to permanent full-time or part-time work. A number of concerns have been raised about the bill, many of which have been outlined in submissions by the Australian Council of Trade Unions (ACTU) and endorsed by the Australian Manufacturing Workers Union, the Young Workers Centre, and the National Tertiary Education Union.
One of the most significant concerns is the introduction of the term 'designated casual' and the absence of a definition for 'casual'. The new right to request casual conversion is only available to employees 'designated as a casual employee by the employer'. This is concerning for a number of reasons, chiefly because it is a departure from the recent Full Federal Court decision in WorkPac v Skene. The Full Court rejected the argument made by WorkPac that a casual employee is one who is designated as casual by the employer, and is engaged and paid as such. Instead the court ruled that whether someone can be considered a 'casual employee' 'depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all of the circumstances'.
By allowing employers to designate an employee as a casual, the bill undermines the Full Court's ruling and, as a consequence, an employee who could be considered as permanent based on the Full Court’s ruling, could be designated as a casual by their employer and therefore ineligible for entitlements they would otherwise receive under the NES.
The Australian Greens strongly support the right of workers trapped in insecure work to shift to permanent employment. However, as outlined above and in addition to the concerns outlined in the ACTU submission, the Australian Greens believe that the bill as drafted undermines the rights of casual employees.
Recommendation
The bill should not be passed.
Recommendation
The Senate pass the Fair Work Amendment (Tackling Job Insecurity) Bill 2018.