Tue Jul 25

Every worker is entitled to be safe at work, but casual workers can fall through the cracks

Written by: Kantha Dayaram, Professor, School of Management, Curtin University

On Monday, Workplace Relations Minister Tony Burke flagged the government’s plan to legislate to enable casuals who work regular shifts to convert to permanent work.

The move, which has been criticised by business groups who said it would add to costs and red tape, is the latest step by the federal government, as promised during Labor’s election campaign, to empower the so-called insecure workforce.

While laws to protect workers from mistreatment already exist in Australia, last month the government signed a United Nations convention that recognises a broad definition of work and an expansive definition of violence and harassment.

The convention is significant because it effectively covers the growing number of casual and gig workers who may not be covered by existing laws.

According to the convention, everyone has the right to work free of violence and harassment. But the increasing casualisation of work over the past two decades have exposed some workers to greater risk of harm.

These changes include a shift away from full-time permanent roles to increasing numbers of contractual and self-employed and those with ambiguous contractual status including gig and platform workers.

In Australia there are about 2.7 million casual workers and 1.1 million ^[1] contractual workers.

It is harder for these workers, who are more vulnerable to the risk of violence and harassment, to report these incidents than it is for permanent workers.

Pizza delivery person driving motor scooter

It is difficult for casual and gig workers to report workplace violence and harassment. Shutterstock ^[2]

A review of Australian law and practices to assess gaps in protections for these new forms of work needs urgent attention.

Recent changes to the Sex Discrimination Act and Fair Work Act mean they provide some of the necessary protections, in line with the new convention, but our research ^[4] has found they don’t address all the obligations and don’t reflect some of the convention’s key principles.

Instead of a narrow approach, the convention calls for all forms of violence and harassment to be dealt with. The current focus in Australia is on sexual harassment, but this is part of the larger phenomenon of gender-based violence. Regulation of all its forms is necessary.

The C190 convention which Australia has now signed requires signatories to adopt an inclusive, integrated and gender-responsive approach ^[5] to eliminating and preventing violence and harassment in the workplace.

Emphasising the need for regulation to be inclusive, it adopts a broad definition of violence and harassment, acknowledging a range of unacceptable behaviours and practices ^[6] that can cause harm including physical, psychological, sexual or economic harm.

As well as the rise in short-term positions, the concept of the workplace is also changing ^[7].

Fly-in-fly-out workers in remote locations and gig delivery workers or carers who work at multiple sites are isolated and have little or no direct ^[8] support from their employer or in the community.

Gig workers often have less access to employer support. Shutterstock ^[9]

The rise of online working through the COVID pandemic, has also led to increases in online harassment and intimidation ^[10].

The convention outlines an expansive view of the circumstances, locations and sectors within the labour market that constitute the “world of work ^[11]”. This is another concept that needs to be incorporated into relevant laws and regulation.

An integrated approach requires coordination between different areas of law dealing with violence and harassment. A joint effort between governments, employers, unions and interest groups is also needed.

The call for an integrated approach is in response to the complexity and gaps ^[12] in regulatory approaches.

Australia’s regulation of sexual harassment at work has been characterised by the siloing of the issue within anti-discrimination law, with little attention given to it within workplace rights legislation.

This is changing, given amendments to the Fair Work Act ^[13] and the priority being given to eliminating sexual harassment as a work health and safety hazard ^[14]. Recent changes to state-based ^[15] work health and safety regulations provide for wider worker coverage.

While Australia is making progress, there is a fair way to go to say Australia has an integrated regulatory approach to workplace violence and harassment.

We recommend that the federal government adopt a national strategy on the prevention and elimination of violence and harassment in the workplace, as required by the convention.

A focal point could be giving one regulator responsibility for ensuring the strategy is implemented and the laws, regulations and practices are integrated.

Power relations, gender, cultural and social norms, discrimination and economic inequalities also need to be considered in Australia’s management of violence and harassment in the workplace.

This is part of the gender responsive approach demanded by the convention. Laws and regulation that require those who have suffered violence and harassment to initiate claims for redress and wear the burden of costs of litigation are not in line with this gender-responsive approach.

Making employers responsible for helping prevent violence and harassment are part of this solution.

However, these responsibilities also need to be accompanied by effective and extensive compliance and enforcement powers for regulators and also the resources and capacity within these regulators to deal with issues such as the impact of gender on the violence and harassment at work.