According to a recent government consultation paper: after age 35, women are more than twice as likely as men to be working part-time and casually. Women are overrepresented in casual work at 54.6%. And rates of insecure work are higher amongst socially and economically disadvantaged.
The Federal Government is proposing to have another go at addressing casual employment, in the name of making it “fairer” for all. It is suggested that the new approach “will legislate a fair, objective definition to determine when an employee can be classified as casual. There will be a new pathway for eligible workers to seek permanency, should they wish to do so.”
A recent talkback show had a predicable response from an Employer’s Association on how this proposal will make life more difficult for employers and small businesses who are already struggling. How the current rules around casual conversion work well and afford flexibility for both parties. The talk back that followed did indeed have (a minority) of listeners who described how casual employment did suit them. How it was a deliberate choice, and it worked well for both parties. And there are instances where it does work well: the casual summer job for the teen or young adult who is putting themself through school or further education. Or the instance of the nurse who can’t make the very prescriptive shifts work for their family so instead works casually. I know great organisations who use it as a deliberate way to supplement their permanent workforce by making interesting project work available to talented people who are looking for flexible project work because of their particular personal circumstances.
In all these instances, there is a mutuality of benefit. It works for both parties. Neither party thinks the other is ripping them off. Both parties get something from the relationship, and it meets the needs of both parties. It meets the “pub test” or the sniff test.
The problem is – casual employment has never just been about those examples. If it was, then successive governments would not have needed to try to enact legislation to make it work.
Here is the other side of the story.
- Employees kept as “casual” for years and years. The worst that I have heard is in excess of 20 years. The employee accrues an entitlement to long service leave, but no other paid entitlement. Paid sick leave, paid annual leave, paid public holidays, notice and redundancy payments are all excluded. The argument to this one is that the employee should “save” the loading and use it for the times that they are sick/need leave etc. But many casuals don’t receive the proper loading. And of course, human nature being what it is, it’s rare for people to think – “in twenty years, I may be sick and need to take sick leave, so I should start saving for that now.” Indeed, some may say that many people would be horrified by the thought of still being a casual employee many years down the track.
- Then there are the employees kept as casual for extended periods of time, and then “terminated” for no apparent reason. No redundancy payment, no paid notice period. The ultimate flexibility for the employer. The casual can of course lodge a claim for unfair dismissal, but many are unaware of their rights in this regard or find the system hard to navigate.
- Or the casual employees paid in cash in brown paper envelopes, with no entitlement to long service leave. And goodness knows whether they are a worker for the purposes of workers’ compensation etc.
The argument that flexibility goes both ways is one that if often used – that employees have the right to turn down shifts that don’t suit them. And technically this is true. Again in reality it often doesn’t work that way. Often casual employment equates to less power.
For casual employees, it is nigh on impossible to get a home loan because the job can be terminated at any point (and often is). Work is unpredictable and unstable. And the casualisation of the workforce is increasing..
Casual conversion- why doesn’t it always work?
Casual conversion has been enshrined in the Fair Work Act. In essence, after 12 months, if there is a regular pattern of hours, employers must offer to convert the employee to permanent unless there are reasonable grounds not to do so. But this obligation does not apply to small businesses (although casual employees of small businesses can request it of their employers).
And, importantly, not all businesses comply – particularly those who have more vulnerable or disadvantaged employees who may not know their rights.
One employer told me that if they were to comply with all the legislative requirements they would not be able to compete, because their competitors certainly weren’t complying.
Another small hospitality employer said they didn’t know the rules. And how can they be expected to comply with something they don’t know about.
The Takeaway
A few bad employers can and do spoil it for everyone.
If the government were really serious about getting to grips with this issue, it would have an authority devoted to actively seeking out and prosecuting serial offenders (much the same way that wage theft is now being addressed), with protection and support for those vulnerable employees who are threatened because of their visa or other status. Until then, we are just tinkering around the edges of what has been a systemic issue for decades.
Getting the balance right means that there’s the opportunity to have both flexibility and build a strong psychologically safe culture for all.
With thanks to Jen Porter.
More Resources
More about casual employees – Fair Work Ombudsman
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