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Casuals and the Workplace

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Casuals and the Workplace, Unfair Dismissal Australia

Alongside the recent and changing circumstances of the coronavirus pandemic, an issue that has arose is the increasing rate of casualization in the workplace. In a recent interview with the ACTU secretary Sally McManus, she expresses her concern with the increasing rate of casuals at 25 percent in the past 20 years, as it has caused insecurity within the Australian workforce1.

During this time of much uncertainty, Australian employees are left to feel displaced and neglected by their employers. However, what is even more concerning is the Government contracting out essential services and the impact this is having upon Australians. Where these untrained security contractors have acted so recklessly that they are reason to cause Victoria back into a six-week lockdown.

What is casualization?

Casualisation describes the transformation of a workforce from permanent contracts to employment engagement on a short-term or casual basis. Quite interestingly, in Australia 35% of its workers are either casual employees or contractors2

The Fair Work Commission lists that these casual employees:

  • Have no guaranteed hours of work
  • Usually works irregular hours
  • Doesn’t get paid sick or annual leave
  • Can end employment without notice, unless notice is required by a registered agreement, award or employment contract3

Casualization in the Australian workforce and impact on employees

Quite often, we hear casual employees not being able to make plans to spend time with their friends and family, as they do not want to promise their loved ones they’ll be able to come with their uncertain rostered hours. Or having difficulties to secure a car loan or deposit because of this insecure form of employment. However, more seriously casual employees often find themselves too scared to exercise workplace rights in fear their employer may take adverse action against them. This can include inquiring about their pay or workplace entitlements, in fear that they may be terminated or have their hours reduced. Therefore, these insecure workers are left with no incentive and are far less confident, as they cannot rely on the benefits that unions have fought for workers.

Many ask why the Australian workforce has taken this shift towards casualization if they lack these entitlements of full-time or part-time employees. Casual employment is used as a means by employers to minimize costs as they can avoid having to pay entitlements such as notice of termination and leave. As well as employers being able to adjust the hours of casual employees to suit the business, without needing to provide much notice. Where casual employees can be left off the rosters with no means of income for weeks, even months if the employer decides so. Thus, leaving many casual employees in positions they may be forced to resign as they are not receiving any hours, and are unable to support themselves or their family.

Additionally, if a casual employee has been unfairly dismissed they may have problems going to the Fair Work Commission to seek remedy unless they can demonstrate they were employed on a regular and systematic basis.

How does a casual employee differ from contractors?

Quite often, business owners and employees become confused with the difference between a casual employee or a contractor. In order to draw this distinction, an examination of the relationship between the individual and the employer must be analysed.

A contractor is an individual or business that a commercial enterprise hires to perform a specific function. As of such, the key distinction between these two forms of employment include:

  • Hours of Work

Contractors are able to determine what hours they work to complete the task they were hired for, unless their agreement states otherwise. Meanwhile, casual employees are often rostered on to work specific hours, as decided by their employer.

  • Control and Autonomy at Work

Contractors are not specifically bound by the business that hired them to perform the duty. Meanwhile, casual employees are bound to work beneath the instructions and expectations of their employer. Thus, not having as much autonomy and freedom within their work.

  • Liability and Risk

Contractors when on a job are responsible for any liabilities or defects. To which they often are required to have their own independent insurance as a means of protection. Meanwhile, casual employees do not have this liability and in most circumstances the corporation will be liable for the conduct of its employees.  

  • Payment

Contractors are paid for completing the work that they have completed on duty and quoted the body that hired them. To which, such payment is often done through an invoice and after the job has been completed. Meanwhile, casual employees will receive payment routinely with payroll either weekly, fortnightly or monthly.

  • Tax

Contractors must pay GST and tax payments to the ATO, meanwhile causal employees usually do not as they have their tax deducted by their employer.

  • Superannuation

Contractors are responsible for managing their own superannuation payments, meanwhile causal employees have their payments made by their employer into their nominated superannuation fund.

  • Equipment

Contractors are responsible for supplying and bringing their own equipment to complete the job they were hired for. Meanwhile, causal employees are usually provided the equipment by their employer at the place of business.

Despite these differences, one thing that contractors and casual employees have in common are the lack of security and entitlements within their employment. Similarly, beneath the Fair Work Act 2009, independent contractors are protected from adverse action, coercion and abuses of freedom of association. If a contractor is in a position where adverse action has been taken against a contractor exercising one of these protections, they may be able to make a General Protections Claim to the Fair Work Commission.

Victorian Hotel Quarantine Case Study

In recent developments of the Coronavirus pandemic, specifically in Victoria, the backlash of using independent contractors to enforce quarantine of overseas traveller has begun to transpire.

Back in March, the Victorian Government decided to put the responsibility of enforcing the mandatory 14-day quarantine of overseas travellers in the hands of independent security contractors. The same security contractors that work amongst the nightlife industry, providing their services to nightclubs and bars. Where there is a known history of ill practice and corruption amongst this industry. In fact, the Fair Work Ombudsmen recently released that this private security industry had far higher levels of workplace disputes, mostly arising from contractors being used to lower the cost of paying employees lawfully.

Not even two months after this decision, the first infection of a security contractor became public to which lead to an outbreak of the virus in Victoria. Where currently the state is again in a stage three lockdown for six weeks. Where family and friends are unable to attend funerals and weddings for their loved ones. Where children are unable to attend school and be educated, even those doing their VCE for tertiary education. Where businesses are being forced to shut down and terminate employees who must provide for their families. Leaving not only Australians, but other countries to ask what possibly could have gone wrong.

The contracting out of this essential service left these questionable individuals in charge of such a vital role in flattening the curve, without the required training to do so. From breaking up fights at clubs and checking ID’s, these contractors were placed in quarantine hotels with as little as a few minutes of training. Where stories are beginning to surface of contractors not correctly wearing personal protective equipment, disposing of waste correctly and engaging in other unhygienic practices. Even worse, these contractors were sleeping with infected guests and afterwards going to other contracting jobs, such as Uber instead of self-isolating to prevent the spread of the virus.

Perhaps if those hard-working employees with the relevant training and knowledge were hired instead by the Victorian Government, the state would not be in another lockdown.

Conclusion

The casualization of the Australian workforce and the contracting of essential services is damaging the morale and confidence of our Australian employees. Our workers deserve to have security at work, where they are protected to exercise their workplace rights and have notice and leave entitlements. Where these casual employees who arrive at their job and work hard, despite not being afforded security and entitlements should be recognized.

We must start the discussion to help fight for security and fairness in our Australian economy, and keeping our jobs protected. If we don’t act now, it may be too late. Where if it isn’t you that’s affected, it may be your daughter or son who suffers. Together, we can restore justice in our workforce.

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