Google AI
The Times Australia

Times Media

Employers will resist, but the changes for casual workers are about accepting reality

  • Written by: John Buchanan, Professor, Discipline of Business Information Systems, University of Sydney Business School, University of Sydney
Employers will resist, but the changes for casual workers are about accepting reality

The Albanese government’s plan to improve the pathway to permanency for casual workers has employers worried, fearful their ability to employ casual workers will be restricted.

Even before the details had been released, there was certainty, in the words[1] of Australian Industry Group chief executive Innes Willox, that there “is simply no justification for further changes to the regulation of casual work”.

In support of this argument are statistics suggesting the casualisation trend has peaked. But that’s by no means certain: the most recent data from the Australian Bureau of Statistics shows casualisation climbing again, with an overall rate of 23.5%.

The counterargument is that entrenched casualisation doesn’t make the status quo right, and that the government’s proposed reforms will give greater recognition to reality. That is, if a worker is effectively working as a permanent employee, they have the right to be treated as such. Read more: Albanese government to make it easier for casuals to become permanent employees[2] Rise of the ‘permanent casual’ While casual employment can often suit both employer and employee, the evidence does suggest some employers have exploited the legal ambiguities around definitions and obligations. Australia’s National Employment Standards – the minimum safety net for all workers – say a casual employee who has worked for their employer for 12 months must be offered the option[3] to convert to full-time or part-time (permanent) employment. But there are significant exemptions, particularly for small business. Close to 60% of Australia’s casual workers have been with their employer for more than a year[4], and 45% to 60% report regular hours and pay[5]. This has resulted in the great Australian oxymoron of “the permanent casual”. There is effectively a class of workers who don’t get holiday and sick pay, no matter how long or regularly they work, simply because their employer deemed them “casual” when they began. Read more: The truth about much 'casual' work: it's really about permanent insecurity[6] The legal landscape Since the 1990s, workers and their union representatives have challenged these contrivances in industrial tribunals. Several of these decisions have been tested on appeal in the Federal Court. In two cases in 2018 and 2020[7], the Federal Court agreed a worker’s employment status should based on the reality of their long-term employment relationship. That is, if there was continuity, based on extended, regular patterns of employment, a worker was a permanent employee. Similar principles applied to those deemed contractors. However, appeals to the High Court in 2021[8] and in 2022[9] overturned these rulings. For the High Court, a formal stipulation of relations written in a contract were all that counted. The reality of life on the job was irrelevant. Read more: What defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law[10] Common law versus parliament The High Court’s decisions – that formal freedom of contract has to be respected irrespective of the realities of bargaining power – reflect a long struggle between the common law and parliament in matters concerning working life. In the 1700s and 1800s, workers were jailed for meeting to discuss wage campaigns. To this day, commercial common law considers the principle of “freedom of contract” as the foundation for all commercial relations – including those involving employment. Union activity is an illegal restraint of trade. These principles have never been changed in the courts. It is only by statute (legislation passed by parliament) that trade unions and collective action by workers has been allowed. The federal Employment and Workplace Relations Minister, Tony Burke, says[11] the government “will legislate a fair, objective definition to determine when an employee can be classified as casual”, and no one will lose their casual status if that is their preference. There will, no doubt, be opposition, with warnings about threats to productivity and suggestions economic conditions are too fragile. But there’s a lot to be said in favour of giving greater recognition to reality.

References

  1. ^ the words (www.theaustralian.com.au)
  2. ^ Albanese government to make it easier for casuals to become permanent employees (theconversation.com)
  3. ^ must be offered the option (www.fairwork.gov.au)
  4. ^ for more than a year (www.aph.gov.au)
  5. ^ regular hours and pay (www.aph.gov.au)
  6. ^ The truth about much 'casual' work: it's really about permanent insecurity (theconversation.com)
  7. ^ 2018 and 2020 (www.lexisnexis.com.au)
  8. ^ in 2021 (www.corrs.com.au)
  9. ^ in 2022 (www.minterellison.com)
  10. ^ What defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law (theconversation.com)
  11. ^ says (ministers.dewr.gov.au)

Read more https://theconversation.com/employers-will-resist-but-the-changes-for-casual-workers-are-about-accepting-reality-210272

Times Magazine

The $4,699 iPhone: why people still want Apple’s best

The iPhone 18 Pro Max can cost more than many people would spend on a computer. Its appeal says as...

BYD Shark 6 v Toyota LandCruiser 300: can new technology defeat an Australian legend?

The BYD Shark 6 and Toyota LandCruiser 300 Series may appear to belong in different vehicle catego...

Australia Needs Permission Budgets for AI Agents

The Times recently argued that Australia should keep building the data centres the AI economy requ...

Technology

The $4,699 iPhone: why people still…

The iPhone 18 Pro Max can cost more than many people would spend on a computer. Its appeal says as...

Local News

Fitstop Global Games to Bring 1,000…

The Australian-born fitness brand is bringing its global competition home, with athletes from across...

Culture

Healthy Spring Habits: Why Hydration Deserves…

Spring is here, and it's arrived warm. Sydney recorded temperatures more typical of midsummer in t...

Travel

School holiday pricing: fair market economics…

Every Australian family with school-aged children knows the pattern. Look at an airfare, hotel ro...

The Times Features

Australians Put Major Renovations on Hold and Turn to S…

Nearly half of Australian homeowners have delayed a major renovation in the past two years, accord...

Healthy Spring Habits: Why Hydration Deserves a Spot on…

Spring is here, and it's arrived warm. Sydney recorded temperatures more typical of midsummer in t...

Could a Prescription for a Bushwalk or Art Class Be the…

New social and nature prescribing hubs connect locals to community activities to combat loneliness...