Friday, 7 July 2017

Casual workers not guaranteed permanent job under Fair Work ruling

Updated about 11 hours ago

There was much fanfare around the Fair Work Commission's (FWC) decision to extend rights around casual conversion to nearly 90 more industries.
Unions hailed the ruling as a big win for casual staff who want more job security.
But employer groups and an industrial relations experts doubt the decision will lead to a seismic shift in the Australian labour market. Here's why.

What changed with yesterday's decision

The right of long-term casuals to convert to permanent employment isn't completely novel — the same provision has been in most manufacturing awards for years.
What Fair Work did was extend the same rights to all the other awards — the documents that set down minimum employment standards in most industries and form the basis on which most enterprise agreements are negotiated.
What the decision means is that all casual workers now have the right to request permanent employment if they work regular hours over a full year.
It does not mean that they are entitled to be converted to a permanent position.

I'm a casual and want to become permanent, how do I do it?

First of all, this is a draft ruling, and employer groups, unions and other interested parties can still make submissions to the FWC before it makes a final determination, so things could change.
So hold your horses, this isn't the law yet.
If it does come into effect in its current form, then employers will be required to inform casuals about their rights.
"All casuals after 12 months will get a notice saying you could potentially be entitled for consideration of permanent status," explained Professor John Buchanan, an industrial relations expert from the University of Sydney.
But not all casuals will be eligible.
"The key criteria are you must have worked a standard pattern of hours on an ongoing basis without major change over that 12-month period," he said.
In other words, if you worked 9-5 Monday to Friday one week, but then just did a couple of days the next with no regular pattern, you are considered a genuine casual and not entitled to conversion.
But if you worked say every Thursday 5-9 and Sunday 10-4 you might be eligible to convert to permanent part-time.
If you are eligible then you need to approach your employer and ask them about being converted to permanent employment.
That can be daunting for employees, especially young staff who are casuals that are relatively easy to fire.
"However, the current provisions of the Fair Work Act provide some protection against employers treating them adversely for exercising a workplace right, such as making a request under the clause," advised the Sydney industrial law team at Slater and Gordon.
"If an employee is of the view that they meet the criteria outlined above and would like to request that they be made permanent, they should join their union!
"Their union representative will be able to assist them in approaching their employer."

But there's a catch … or four

The unions originally called for the mandatory conversion of all casual staff to permanent positions after six months' consistent work with a single employer.
But, aside from the one-year time frame, Fair Work also sided with business on making the conversion from casual to permanent rather optional, at the discretion of the employer.


In fact, the Australian Industry Group (AI Group) hailed the ruling as a "significant win for employers".
"They've retained the right, despite union claims, to refuse requests for staff members to move from casual to permanent under reasonable circumstances, given the conditions and circumstances of the business," AI Group chief executive Innes Willox said.
As the Slater and Gordon lawyers explained, there are actually four grounds on which a request can be refused:
  1. If it would require a significant adjustment to the casual employee's hours of work;
  2. If it is known or reasonably foreseeable that the casual employee's position will cease to exist;
  3. If the employee's hours of work will significantly change or be reduced within the next 12 months; and
  4. On other reasonable grounds based on facts which are known or reasonably foreseeable.
Of particular concern to employees is reason number four, as Slater and Gordon's lawyers explain:
"The last ground is broad and could be used by employers to refuse the request on tenuous grounds."
The net result for casuals is that your employer will have to tell you after a year that you may be able to convert to a permanent position, you can make a request if you work regular hours/shifts (like a permanent staff member would) but your employer can pretty much just say "no" if they don't agree.

Do I want to convert to permanent anyway?

Permanent employment has some distinct benefits, such as regular hours, sick and holiday leave entitlements and much greater job security.
For example, employers do not necessarily need to fire a casual if they want to shut them out, they can just slash the amount of shifts they are rostered on for.
However, permanent employees do not receive casual loading (which is paid as compensation for not getting leave) and therefore can earn less than their casual counterparts.

So will it make a difference?

After the decision, the Australian Council of Trade Unions (ACTU) described the ruling as a small step towards addressing an "epidemic of insecure work" and the casualisation of the country's workforce.
But Professor Buchanan said it is unlikely to transform the nature of work in Australia.
"This right has been around in the manufacturing sector since the early 2000s and there has not been an exodus of casuals heading for permanent status, so many workers haven't availed themselves of this right anyway," he said.
Mr Willox agrees.
"We don't see that it will have much impact at all — what it is, is an extension of a right that is covered in many awards to cover virtually all people under awards," he said.
"That's fair enough — that people can ask — but the reality is in most cases, people don't want to convert from casual to permanent because the casual nature of their work gives them the flexibility that they want to study, to spend time with their family or other things.
"They also receive a loading for working as a casual and they would lose that earning and some of their flexibility rights if they were to become permanent."

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