The Federal Government recently changed the Fair Work Act to undo the positive outcomes won by unions for workers who were wrongly classified as casual employees. The full impact of these changes is unlikely to be clear for some time.
The regulatory impact statement to the Bill that gave effect to these changes identified ‘the problem’ in this way:
“Despite having a long industrial history in Australia, the current legal framework around casual employment, covering over 2 million employees, does not provide certainty or confidence for employers or employees to use casuals as a genuine employment option.”
This reference to using casuals as a ‘genuine employment option’ is important to note. Especially when you consider the unsupported assertion by Queensland LNP Senator Amanda Stoker in her maiden speech that “The unions rail against casualisation… but it is the direct product of the policies for which they advocate”.
One assumes Stoker is suggesting that the conditions won for employees after years of struggle have ‘forced’ employers to adopt a practice of avoidance – in the same way it could be said that tax evasion is the direct product of taxation.
Despite the window dressing of casual conversion arrangements, these legislative changes have been enacted to entrench casual work and enable the continuation and proliferation of poor employment practices.
Recent decisions of the Federal Court of Australia affirmed that an employee is not to be regarded as a casual simply because that’s the designation given by the employer. The Court identified that the question of whether an employee was a casual required an assessment of the conduct of the parties, and the ‘real substance, practical reality and true nature’ of the employment relationship ‘by reference to the actual way in which work was carried out’.
Definition of casual
The new definition of a casual employee is contained in s15A of the Fair Work Act and primarily focuses upon what is offered by an employer at the time of engagement. Subsection 15A(4) is where the agenda of the government becomes wholly transparent:
“To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.”