Last week, the NSW Business Chamber (NSWBC) indicated it would seek the creation of a new ‘perma-flexi’ category of employment to apply in heavily casualised industries.

The move comes following the Federal Court decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (‘Workpac’) which confirmed that casual employees should be categorised, for the purposes of the Fair Work Act 2009 (Cth), by reference to the common law understanding. Indicia relevant to such a determination include irregular work patterns, uncertainty, discontinuity, intermittency and unpredictability of work.

The NSWBC has expressed concern that the application of Workpac will result in ‘a number of employees who have been described as casual (and who are paid a casual loading) may in fact not be casuals and may be entitled to some of the conditions of employment applicable to permanent employees’. Its proposal would see these employees, newly categorised, attract leave, notice of termination and redundancy entitlements with a 10% flexible loading payment in lieu of the current 25% casual loading.

The instance of casualisation in Australia has increased from around 13% of the workforce in the early 1980s to 25% today. In its submission to the Senate Select Committee on the Future of Work and Workers (CFOWW) the ACTU notes almost 60% of all casuals have been employed in their current jobs for over a year and 17% of casuals have been in their job for more than 5 years. This type of long term casualisation is one way in which employers are avoiding worker entitlements and minimising worker voice, the result of which has been rising levels of insecurity and inequality.
Interestingly the CFOWW noted casualisation is rife in health and care sectors, which are associated with the highest projected employment growth. These sectors feature among those put forward by the NSWBC to which the ‘perma-flexi’ category would apply. The Victorian Council of Social Service noted that the quality of care provided in such industries is likely to suffer where casualisation continues. This consequence is of particular relevance to the upcoming Royal Commission into Aged Care Quality and Safety.

Work with dignity is a fundamental principle of the Australian Charter of Employment Rights. Employees engaged under casual conditions on a regular and systematic basis are denied dignity in terms of equitable minimum standards and benefits of employment; opportunities for training, development and career advancement; the ability to plan their economic futures and obtain financial loans; and their incapacity to balance their work with personal and caring responsibilities.

The AIER supports the recommendation of the CFOWW that the ‘Australian Government review the definition of “casual” work in light of the large numbers of Australians who are currently in non-standard employment. In order for our workplace relations system to deliver worker protection, balance in industrial bargaining and social equity the use of casual employment must be restricted to those circumstances that are genuinely unpredictable and short term. The introduction of an additional category of worker, as proposed by the NSWBC would result in increased complexity while entrenching insecurity and inequality within our system.