Casual workers earn new right to permanent employment under workplace reforms
By Nick Bonyhady and Rob Harris
December 7, 2020 — 12.00am
Casual workers who have been with the same employer for a year and in regular shifts for six months must be offered permanent employment under the federal government's new workplace reforms aimed at tackling insecure work.
The Morrison government will on Monday announce a new statutory definition of casual employment among several measures designed to bring more certainty to the workforce following the coronavirus pandemic.
The definition of what is a casual worker is set to change under new federal laws. Credit:Michele Mossop
There are 2.6 million casual employees in Australia - the sector worst hit by the COVID-19 outbreak - with 1.35 million of them working regular shifts for their employer for 12 months or more.
The industrial relations changes will also tackle the "double dipping" problem created by a recent Federal Court decision which ruled some "casual" workers were able to claim both annual leave and casual loadings typically worth 25 per cent of their pay.
But the new laws are poised for a fight, with Australian Council of Trade Unions secretary Sally McManus claiming they will only "entrench" casual work.
Industrial Relations Minister Christian Porter said with so many people still out of work, or doing fewer hours, the government could not stand by when employers were delaying making hiring decisions because of ongoing confusion about the legal status of casual employment.
"Our definition of casual employment is likely broader than some business groups had wanted, unions are likely to say we should have made the definition broader still, suggesting to me that we have struck the right balance on this issue and delivered a fair and equitable outcome that will benefit both workers and employers," he said.
Mr Porter will introduce an omnibus bill to Federal Parliament on Wednesday which will also include a more flexible interpretation of the Better Off Overall Test by the Fair Work Commission, award simplification for employers to pay loaded rates and criminal charges for employers who egregiously, recklessly and knowingly underpay workers.
The proposed changes land between some of the union and employer positions by offering a new legal definition for which workers are casuals, who typically get an extra 25 per cent in pay but go without sick leave and paid holidays.
They restrict casual work to employees who do not know when or how much more work they will get from their bosses, as determined "objectively" by the courts. That aligns with union calls to restrict casual work to only "genuine" casuals and cuts across some employers' arguments that anyone labelled a casual and paid as such is one.
The changes propose that if an employee declines an initial offer to convert from casual to permanent work, a further right to request will be available every six months, as long as they remain eligible. But an employer may decide not to make an offer or accept an employee's request if they have reasonable grounds not to do so, consistent with arrangements established by the Fair Work Commission.
Staff who have been in the job for 12 months and working a regular pattern of hours for six will get the offer. However, employers have an escape hatch if going to a permanent role would require a significant change to the workers' hours or be unreasonable for the business.
Business Council of Australia chief executive Jennifer Westacott, who was part of the union and employer negotiations, said it would make an "enormous difference" to the issues she had raised for a long time.
"Nobody ever expected radical reform because radical reform would have been divisive reform. We need to move beyond that," she said.
Ms McManus said it was a "huge missed opportunity" to begin to make jobs more secure and turn around the number of casual and insecure jobs.
"The proposal makes it almost impossible for casual workers to convert to permanent work as if an employer is unreasonable or does not offer them permanent employment, there is little they can do about it," she said.
But the union movement's efforts to speak with one voice about the government's reforms were dealt a blow on Sunday when one division of the 150,000 member Construction, Forestry, Maritime, Mining and Energy Union launched a blistering attack on another.
Dave Noonan, secretary of the union's construction division, which is at odds with its mining and manufacturing divisions, suggested mining secretary Tony Maher had done a "secret deal" with Mr Porter to craft new legislation allowing unions like the CFMMEU to split.
"The government will use this bill to divert attention from the Industrial Relations Omnibus Bill it is putting to Parliament next week, which is the beginning of a march back to WorkChoices," said Mr Noonan, whose block have a majority in the union's national organs.
Mr Maher and Mr Noonan fell out over John Setka, the union's Victorian construction division secretary, who pleaded guilty to harassing his wife last year and, his supporters believe, did not receive enough support from the mining and manufacturing divisions.
Under law merged unions cannot go back to their previous separate parts after several years as a single entity, which Mr Porter last week announced plans to change.
Mr Maher said disamalgamation provisions should be more workable.
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Sally McManus
John Setka
Business Council of Australia
CFMMEU
Nick Bonyhady is industrial relations reporter for The Sydney Morning Herald and The Age, based between Sydney and Parliament House in Canberra.Connect via Twitter or email.
Rob Harris is the national affairs editor for The Sydney Morning Herald and The Age, based at Parliament House in CanberraConnect via email.