Casuals’ loss of access to award and NES entitlements whilst significant and broad ranging cannot be “equalised” or reduced solely to a monetary value. The current debate regarding the cashing out of annual leave makes manifest that the issue is not restricted to the nominal monetary value attached to the leave, but also encompasses the “time value” inherent in the entitlement to be absent from work with pay. Put simply, no one would expect a permanent worker to work 1, 2, 3, 7 years etc. without an entitlement to take leave. This however is the reality for long term casual employees. The model clause68 proposed by the FWC to assist employees’ access the time to take annual leave will be of no benefit to casual employees. The AWRS study found that 31.3% of casuals in the manufacturing industry compared to 7.4% of non- casuals could not choose when to take holidays (refer Attachment 5). The data (refer Chapter 4) is that similar proportions of casual and permanent workers have between years service with the same employer. This suggests that many casuals are in fact permanent but denied access to the same entitlements as permanent workers. Mr David Kubli’s statement provides evidence that he is not allowed to access any paid annual leave or sick leave. However, when he does wish to take extended unpaid leave, he is required to apply for the leave three weeks in advance at a minimum. Mr Kubli takes forced unpaid leave during the Christmas shut down. When he did take a week of unpaid leave outside of the shut down it was to get married. Such circumstances, where a casual employee is dismissed after a period of taking unpaid leave are also reflected through unfair dismissal matters before the Fair Work Commission.69 (refer Chapter 5) Concepts such as Industrial Democracy, security, dignity at work, safety at work, gender equality, equal pay, training and skills development, engagement at work
for a casual employee is $555 per week and the average weekly income for a permanent or fixed-term employee is $1,354. The expenses for the different groups were remarkably similar, despite the differences in hours worked and income of different groups. For casual employees, the total work expenses were $245 per week (37% of their income). For permanent employees, the expenses were $377 per week (31% of their income) and for permanent part-time employees (average 28 hours per week), the expenses were $237.55 per week (28% of their income). For manufacturing casuals, the expenses were $337 per week (50% of their income) with the bulk of the increased cost coming from higher childcare costs. In fact, manufacturing casuals spend nearly as much on childcare ($190 vs $205) when compared with permanent employees, despite working many fewer hours per week (refer Attachment 5). The earnings data indicates that permanent workers earn significantly more relative to casual employees and by corollary casual employees will improve their livings standards and increase the likelihood of having their needs met through the introduction of a deeming provision and subsequent transition to permanent employment. Female workers will enjoy larger gains in income by moving to permanent employment, particularly those working full-time hours. The cost of going to work for manufacturing casuals takes a significantly larger proportion of their income relative to permanent employees and casual employees in other industries. Hours Regarding the impact of hours on the low paid the AWR confirmed that underemployment affects both full and part time workers however is mainly an issue for people who work part-time (and want to work more hours). Casuals are
and 79% of agreements containing a minimum engagement provision. This supports the Union’s claim for a floor of at least 3 hours to be provided on minimum engagements when facilitative provisions are requested by an employee. Criteria Figures Percentage Casual conversion clause 739 of 1719 EA’s 42.99% Casual minimum engagement clause 1301 of 1719 EA’s 75.68% Casual minimum engagement – Four hours or more 1032 of 1719 EA’s 60.03% Part-time minimum engagement clause 648 of 1719 EA’s 37.69% Part-time minimum engagement – three or four hour minimum 616 of 1719 EA’s 35.83% Incorporation of AMWU Awards of interest 914 of the 1719 Enterprise Agreements incorporated an award (major AMWU of interest award or otherwise). This is 53.17% of the 1719 Agreements. 338 of the 1719 Enterprise Agreements incorporated a major interest to AMWU award (Manufacturing, Graphic Arts, Food). This is 20% of the 1719 awards. Sample of Manufacturing EBAs Number of EBAs With a Conversion Clause With a Deeming Clause
employees working shifts. This amendment promotes the right to fair wages and in particular recognises the need to fairly compensate employees who work long, irregular, unsocial hours, or hours that could reasonably be expected to impact their work/life balance and enjoyment of life outside of work.190 The AMWU submits that the introduction of the s.134 (1)(da) provisions were an important step not only in compliance with Australia’s human rights obligations but in attempting to reign in rising levels of inequality, and to provide decent work for people, especially award-reliant permanent casual employees, who do not access pay and conditions on an equal footing compared to their permanent counterparts. The evidence is that casuals are not choosing to work as permanent casuals, they are paid less than permanent workers performing the same work, they are paid on the award rate because they are casual and they do not receive pay for leave and public holidays. These outcomes are inconsistent with Article 7 and we say, inconsistent with the objective under s.134(1)(da). There can be no justification for profit to be sought off the backs of young people and/or women and/or casuals by avoiding award entitlements available to other workers working in the same circumstances. The Explanatory Memorandum introducing the new objective stated the amendment was made to ensure “fair” compensation for employees working hours that could reasonably be expected to impact their work/life balance and enjoyment of life outside of work. Fair compensation is not restricted to monetary compensation and can reasonably be understood to include the deeming provision sought. The negative impact of job insecurity on work life balance is identified in the literature, for example, the Lives on Hold Report. The AMWU witness statements, David Kubli (paragraphs 30 – 32), Simon Hynes (paragraph 14 – 18) and Jill Bidington (paragraphs 14 – 15) also attest to the negative impact. Where it is not freely 190 Explanatory Memorandum FAIR WORK AMENDMENT BILL 2013, Statement of Compatibility with Human
have any rights to exercise under the unfair dismissal provisions of the Act.”491 This reflective of a wider misunderstanding and is also seen in Betty Mond v Seymour-Gross Pty Ltd [2014] FWC 5547. Misunderstandings as to the rights of permanent casual workers Various misunderstandings as to the rights and entitlements of casual workers are also evident from the catalogue. This can be demonstrated through Mrs Betty Mond v Seymour-Gross Pty Ltd [2014] FWC 5547, and Marie Axmann v Global Players Network Pty Ltd t/a GP Network Pty Ltd [2013] FWC 6719. In Betty Mond, both the applicant and the respondent misunderstood the rights of casual workers as they relate to unfair dismissal.492 The respondent believed that a casual employee could be dismissed at any time, regardless of the regularity, or length of service.493 Whereas the applicant believed that once engaged for a sufficient length of time, and on a regular basis, a casual employee would be deemed a permanent employee, and thus be entitled to redundancy pay.494 This confusion illustrates the difficulties permanent casual employees endure in identifying their rights and entitlements. The confusion arises due to the hours of work and length of service being indistinguishable from that of permanent employment, as this is in no meaningful sense ‘casual’ employment. In this respect, the applicant’s assumption is justified, given that the reality of her work patterns no longer resembles an employee merely working on a casual basis, but has been transitioned to permanent. This misunderstanding can also result directly in the dismissal of casual employees, as seen through Marie Axmann v Global Players Network Pty Ltd t/a GP Network Pty Ltd [2013] FWC 6719. In that case, the respondent company 491 Lynch v Prices Removals and Storage Pty Limited t/a Chess Prices Removals [2014] FWC 8115, [21]. 492 Betty Mond v Seymour-Gross Pty Ltd [2014] FWC 5547, [3]. 493 Betty Mond v Seymour-Gross Pty Ltd [2014] FWC 5547, [3]. 494 Betty Mond v Seymour-Gross Pty Ltd [2014] FWC 5547, [3].