Industrial relations changes won’t cut long-term casual numbers

Andrew Stewart expect long-term casuals will likely remain reluctant to pursue conversion to permanent employment.

Workplace Relations MInister Tony Burke.

The Albanese government’s casual employment changes will not do much to reduce the level of long-term casual employment, as there may be little appetite for workers to take a pay cut in return for entitlements they may never expect to use, a top workplace law expert says.

University of Adelaide law professor Andrew Stewart, who ­advised the Rudd government on the drafting and structure of the Fair Work Act, said he expected long-term casuals would likely remain reluctant to pursue conversion to permanent employment even if the Closing Loopholes Bill was passed by the Senate.

Professor Stewart said claims by some employer groups that the changes would lead to the end of casual work was a “massive exaggeration” and should be dismissed.

“Similarly if anyone who supports this legislation was going to claim that this is going to make a huge difference in bringing down the number of long-term casuals, I am also extremely sceptical of that view as well,” he told The Australian. “I think there is exaggeration on both sides of the debate here.”

Professor Stewart said it was clear under the bill that if a job was genuinely casual when it commenced, but gradually lost its initial irregularity, it could only become permanent if the parties agreed on that change, or the employee was subsequently able, after six or 12 months, to pursue conversion.

“In practice, it is unlikely that the reforms introduced by the bill will do much to reduce the incidence of long-term casual employment. The factors which induce many workers to settle for such jobs, and which explain why so few casuals have pursued conversion to permanent employment even when given the right to request that, will very likely dampen any use of the new and stricter definition, the employee choice pathway, or the capacity to seek arbitration by the Fair Work Commission,” he said.

“In particular, there may be little appetite for workers to take a pay cut, in return for entitlements they may never expect to use.”

He said a better way to tackle the casualisation of the workforce was to seek, over time, to make casual employment less attractive to employers, by conferring greater benefits on casual employees, either immediately or after an initial period of employment. “This should certainly include paid personal/carer’s leave, and potentially also rights to notice of termination, severance pay and even annual leave for those who have served for long enough. But that is not the current proposal,” he said.

Asked for comment, a spokesman for Workplace Relations Minister Tony Burke referred to previous comments the minister made to the Sydney Institute when he said most casuals, including students and workers not responsible for paying the main household expenses, would not seek to take advantage of the new provisions.

“But there will be people who want to be able to convert, who currently are having trouble doing so,” Mr Burke said at the time.

“There‘s a minority of employers that, as a management tool, like to avoid giving people security. It’s a minority. It’s not many. But for those people, this change will be life changing. They’ll be working the same hours they were already working, but they’ll be doing them with leave entitlements. They’ll be doing them knowing that they have a secure job.”

Employer organisations seeking to have the Senate defeat the bill attacked amendments proposed by the government, after consultations with the nation’s peak hospitality group, the Australian Hotels Association, as phony and empty.

Mr Burke will remove the ­proposed ban on employers misrepresenting permanent employment as casual to ensure heavy penalties not apply to companies that mistakenly misclassify an employee. The government will make amendments to address concerns that casuals could not be employed with regular patterns of work if they wanted to be. It will confirm that it is possible for a ­person to work regular hours and still meet the definition of casual employee.

He has also committed to labour hire changes to ensure services contractors are not caught in the new same job same pay provisions.

Australian Industry Group chief executive Innes Willox said the casual amendments highlighted the flaws in the bill. “We look forward to the government removing disincentives for people to work as casuals should they prefer to do so and disincentives for employers to engage workers as casuals should it suit both parties,” he said. “The bill as currently framed prevents this from happening. This just demonstrates what a mess the proposed legislation is.”

ACTU secretary Sally McManus welcomed the position taken by the AHA which said it could now live with the bill following Mr Burke’s commitment to casual amendments.

“The AHA represents over 5000 businesses and employs hundreds of thousands of workers on casual contracts,” Ms McManus said. “Good employers do not want to take advantage of Australian workers. The other big business lobby groups should stop their campaign against this bill.”