Casual changes a looming disaster for millions

The Industrial Relations Omnibus Bill sounds tame enough, but it has shockingly anti-worker provisions that threaten the employment security of millions of Australians.

IEU members affected by this move include all fixed-term employees, including principals. 

At the heart of these changes is the insertion in the Fair Work Act of a new definition of casual employment. This new definition overrides all existing Award, Agreement and common law contract provisions and will operate retrospectively. 

Touted by the Morrison government as necessary to ‘provide greater certainty for employers and employees’ the new provisions had, in fact, a more banal and partisan birth. Mining companies have long used a web of shelf companies and labour hire providers to supply their workforce. Long-term ‘rolled-up’ casual rates are a common feature of this type of employment, even though workers will effectively be in the same job for years. Unions have been increasingly successful in challenging these arrangements in the courts, retrieving years of foregone leave entitlements for members. 

The changes to the definition of casual in the Fair Work Act provide that if an employer and an employee, at the point of engagement, agree that the employee is casual, then no matter how much the actual nature of the employment (regular hours for example) resembles ongoing, permanent employment the work is deemed to be casual. The retrospective element of the legislation ensures that all existing union actions in the courts, seeking to recover hundreds of millions of dollars in lost entitlements, will be extinguished. 

The new definition of casual, however, was prepared in haste and is long and poorly drafted. Just how it will operate and which categories of employee it will capture is so uncertain that the Fair Work Commission has been entrusted with conducting a review of all awards to ‘ensure consistency’. 

The Teachers Award is one of six awards selected for the first stage of this review. The Commission has released a discussion paper that poses questions concerning the current provisions in the Award. It is here that the potential consequences of the government’s action are laid bare. The Commission has asked for example whether the existing restrictions (or any restrictions for that matter) on the length of any casual engagement are consistent with the new definition. 

Much more worryingly they have asked whether fixed-term employees should now be defined as casuals. Were this to be the case all current and future fixed term employees, including principals, would have their entitlement to leave, including sick leave and school holidays, cancelled at a stroke. 

The IEU has recently made our first submissions to the review, seeking to highlight the disastrous results of these changes on the entitlements and employment security of many of our members. The review will be completed by September, and we will update members on our progress in this crucial fight.

This article was originally published in The Point, V1, No2, 2021.