In six months, on or around September 1 depending on the date the parliamentary-approved legislation receives royal assent, employing casuals in most Australian enterprises will be extremely hazardous.
There are currently around 2.6 million Australians who take up their entitlement to casual work usually as a second family income.
By Christmas this number will be slashed, resulting in a nightmare for family enterprises and a 25 per cent reduction in pay in the pocket for a vast number of Australians struggling with rent and mortgage stress.
Australian family businesses thrive on the flexibility of casual labour, and vast numbers of people under mortgage and rent stress use casual labour as a second job to help make ends meet.
In my view, this new legislation shows a callous disregard by the Prime Minister for this segment of his fellow Australians.
I emphasise casual labour has not been banned, but control over whether an enterprise is entitled to employ casual labour will be determined not by the employees or the enterprise but rather by the Fair Work Commission.
Unions are to be entitled to have a delegate in every enterprise employing people, whether the business is small or large. Those delegates will be trained to spy on both their family bosses and fellow employees to muster evidence toput before the Fair Work Commissionto claim the enterprise is not entitled to employ casual labour.
These hearings face long delays and threaten to create a chaotic Christmas.
The Prime Minister may deny he is deliberately attacking family business and those struggling with mortgage and rent stress – so let me go through, step by step, how he and the relevant minister engineered the legislation and the looming chaos.
Remember, currently whether a person is to be employed as a casual, at least initially, is determined by the enterprise. Many employees love casual work because of the extra cash and the fact they can determine when they work, so work can be fitted into family and base job obligations.
There is no job security or holidays, but in a an economy where there is a labour shortage this is not seen as a problem by many Australians.
Family and other businesses can relate their labour requirements to the flexibility of customer demand. Casual labour is one of Australia’s greatest boosts to productivity and employee wellbeing. But Albanese, via his Minister for Employment and Workplace Relations Tony Burke, and the loopholes in the so-called industrial relations legislation has set new rules.
Accordingly, from the start of spring 2024, an employee will be a casual employee of an employer only if “the employment relationship is characterised by an absence of a firm advanced commitment to continuing and indefinite work”.
What this means will be determined by Fair Work and involves looking into the minds of both the casual person and the employer.
It is complete parliamentary nonsense, with no regard to how business and ordinary Australians operate. But the Albanese legislation gets worse.
The above definition is then subject to further interpretation, and the ability to hire casuals must also be anchored on “the basis of the real substance, practical reality and true nature of the employment relationship … having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):
(i) whether there is an inability of the employer to elect to offer, or not offer, work;
(ii) whether, having regard to the nature of the employer’s enterprise, it is reasonably likely that there will be future availability of continuing work …”
I invite Albanese to go down to the Stanmore fish and chip shop in his electorate to explain what this means.
But there is one chilling criteria in the Albanese legislation which actually has a clear meaning and will be used by the required union delegate, or delegates, in all enterprises to report to their union. That is: “whether there are full‑time employees or part‑time employees performing the same kind of work”.
My layperson interpretation of this sentence is if an enterprise has a part-time or full-time employees doing “the same kind of work” as a casual employee, then the casual must be forced to take a pay cut and be employed full or part time.
Under the legislation it seems the penalties for employing casuals do not apply until Fair Work has declared the enterprise is not entitled to employ casuals. If the enterprise continues to do so, the penalties are harsh and can total close to $100,000.
This leaves the enterprise being forced to employ permanent part-time employees, which usually requires the rigidity of a roster. And contacting the employee out of hours to change the roster may be hazardous.
It’s a totally different relationship, which robs both the family business and the employees of the flexibility which benefits both in the modern world.
Of course, in some situations the predictability of a roster may help an employee, which is why when the ACTU originally suggested after a designated period of casual employment, an employee should be able choose part-time employment.
It was a reasonable suggestion, but few would have changed because of the pay cut and lack of flexibility. Now they have no choice.
The ACTU is now suggesting the casual premium be increased from 25 to 35 per cent (the cost differential is about 20 per cent) to “mop up” any enterprise Fair Work allows to employ casuals.
The reason the ACTU and the unions want all people working in an enterprise to be full or part-time employees is it they are more likely to become union members, delivering the union more income plus a relationship with employees – which gives the union influence over the running of the business.
It’s all about money and power, not worker protection.
