CASUAL Workers - Landmark case

Discussion in 'Legal Issues' started by coins, 21st May, 2020.

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  1. coins

    coins Well-Known Member

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    FEDERAL COURT RULING:

    "A massive workplace “loophole” is coming to an end thanks to a landmark court ruling – and it’s a huge win for countless workers."

    Court rules casual workers are entitled to paid leave backpay

    Does anyone know since what date this will apply from for casuals who have been in fact been regular employees working 2 days a weekend for every weekend for many years?

    Also, would this apply to past casual workers in a similar situation who left their job a number of years ago?

    Seems like a massive win for many casuals who have been missing out on many benefits in the past.

    Should affected past and current casual employees be approaching their employers asap about paying this or the government will enforce this on behalf of the casual employees?
     
    Last edited: 21st May, 2020
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  2. coins

    coins Well-Known Member

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    Lawyers say businesses should consider converting casuals after landmark Federal Court ruling re-ignites "double dipping" claims - SmartCompany

    Workplace Law managing director Athena Koelmeyer says firms should identify all of their casual workers and consider whether to offer them conversion to part-time roles.

    “If your casuals are not true casuals, as in they’re not truly random, ad hoc and called in when you absolutely need them, then it’s no longer a risk — it’s almost certain you’re going to be on the hook,” Koelmeyer tells SmartCompany.

    “Not only for entitlements that are paid to permanent employees, but also you’re going to get no relief by way of offset from casual loading rights, based on this decision.”

    Class actions “tip of the iceberg” for employers
    Australian Council of Trade Unions Secretary Sally McManus says the ruling is a win for workers suffering because of “systemic casualisation”.

    “We need the stop the practice of some employers labelling jobs ‘casual’ when they are in fact permanent. This has stripped workers of rights and security,” McManus said in a statement circulated Wednesday.

    Workplace lawyer Peter Vitale says businesses can’t do anything about back payment liability up until this point, but could make changes to their current and future arrangements to limit their exposure.

    “If your casuals are not true casuals, as in they’re not truly random, ad hoc and called in when you absolutely need them, then it’s no longer a risk — it’s almost certain you’re going to be on the hook,” Koelmeyer tells SmartCompany.
     
  3. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    Yes it have implications for many in certain industries who employ casuals...Like hospitality, IT and tourism etc. This stuff is not needed now. It could even mean employers seek to terminate engagement of casuals at this critical time. Forcing them to engage in individual workplace disputes and costly legal action. I liked how a employee can double dip and the court brushed that aside sugesting the loading had no defined link to not being given leave.... Take the loading and the leave. Seems like the FWA has big holes in it.

    It will be appealed according to some industry bodies.
     
  4. coins

    coins Well-Known Member

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    Court upholds casuals 'double dipping' precedent

    Huge win' for workers
    CFMEU national president Tony Maher said "this is a fantastic decision that puts an end to the ‘permanent casual’ rort that has become a scourge in the coal mining industry and across the workforce".

    “Employers must now stop with the nonsense that calling a worker a casual makes them so," he said.

    “When a job is full-time, regular and ongoing, it is permanent and deserves the security and entitlements that come with permanent work."

    He said the union would now fight to "restore rights and lost pay for casual labour hire workers across the coal mining industry who have been illegally ripped off".
     
  5. coins

    coins Well-Known Member

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    Unfair dismissal claim if an employer does that, according to the AFR article above.

    Workplace lawyer Peter Vitale says businesses can’t do anything about back payment liability up until this point, but could make changes to their current and future arrangements to limit their exposure.

    However, he cautions that part-time conversions must be voluntarily accepted by workers, who may be remiss to give up their 25% loading during the COVID-19 pandemic.

    “There’s a significant disadvantage for them [casuals] to convert to permanence,” Vitale tells SmartCompany.

    “If an employee insists on continuing on that basis [as a regular casual] the risk of a WorkPac scenario continues to be significant.

    “If the employer says, ‘well, we’re not going to give you any more shifts unless you convert to part-time’, there’s going to be all sorts of questions … about unfair dismissal claims or an adverse action claim,” he continues.
     
  6. Jess Peletier

    Jess Peletier Mortgages, Finance & Property Strategy Aust Wide Business Member

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    Interesting - we're seeing WAY more casual workers these days. Having regular staff getting the higher casual rate can be a good thing for both employer AND employee - the employee can go on holidays at moments notice, employer has flexibility to do what works for their business...

    If you don't want a casual position, don't take a casual position... :confused:

    BTW - my employees aren't casual, but lots of people like the flexibility it gives. It's not a one-sided arrangement.
     
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  7. Scott No Mates

    Scott No Mates Well-Known Member

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    I take it that there will be quite a bit of digestion of this judgement and probably an appeal or three as well.

    The temp/labour hire places will go to the wall (all to be phoenixed to one of countless other shelf companies), casual workers will never see a cent.
     
  8. Joynz

    Joynz Well-Known Member

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    But these employees in the judgement are not really casual if they have to be on the job for the same two days a week - every week.

    They can’t just go on holidays at a moment’s notice as they could do if they really were casual. They can’t just refuse a shift when it’s offered because they are expected to be there for the same two days a week.

    That’s not ‘casual’.

    Isn’t the more apt comment ‘if an employer wants casual workers - treat them like casual workers not like part time employees’.
     
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  9. Rose89

    Rose89 Well-Known Member

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    Yes there are some people who actually want casual work but a lot of people are taking casual jobs because that’s all that’s on offer, then are treated like permanent staff without the benefits or security of a permanent job. It’s a huge problem with the job market at the moment. To say don’t take a casual job if you don’t want it is very disconnected from real life where people prefer any job over nothing.
     
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  10. Joynz

    Joynz Well-Known Member

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    I don’t believe in ‘double dipping’, (25% loading and the benefits back pay) but it might be the only way to force some employers to do the right thing and convert their fake ‘casuals‘ to part time permanent - or start treating them as casuals.

    I actually thought this issue was done and dusted about 10 years ago - at least in Victoria...
     
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  11. datto

    datto Well-Known Member

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    It’s about time this has happened.

    Casuals working as pseudo permanents. Not on. Have to lie to the bank to get a loan. Fearing the boss could stand them down at any moment. Maybe no job keeper allowance.
     
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  12. coins

    coins Well-Known Member

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    Why would casual workers never see a cent? In my case I'm directly employed by a market research company as a "casual" working 2 days a week, every single weekend, for maybe 8 years or more. In reality, that is not "casual" when working every single weekend. This landmark case should mean that since starting work with them then they are up for 8 years or more of back pay. The only question seems to be when the government will enforce this for all companies that have been treading permanent staff as "casuals".
     
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  13. Scott No Mates

    Scott No Mates Well-Known Member

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    Many of the employment agencies offering temps will shut up shop as they offer contract roles at casual rates. Many of these are long term roles, terminable at will with set hours but no benefits accruing. These agencies, if there is a liability arising for benefits, will phoenix ie disappear and restart.

    Employers (public sector) don't want the headcount, cannot engage on the long term etc, fill vacancies with 'consultants' (aka casuals) without the obligation of employing staff when hampered by employment freezes etc.
     
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  14. chindonly

    chindonly Well-Known Member

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    Not sure if this will truly impact all casuals as we know it. This was a very specific case.
    If you read the background, I believe it was full time hours (for years), was FIFI / DIDO with rosters set 6 months in advance. Very little flexibility, and accommodation was provided.

    Most casuals are only rostered 2 wks in advance, and not FT hours for years.

    It will be appealed, and I believe there has already been legislation passed to offset double dipping.

    Not sure on using this as a precedent for other cases though.
     
  15. jrc

    jrc Well-Known Member

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    The court judgement only reflects the law that has existed for a long time. Employers often think casual is easy but it actually means casual. If you are going to be employing someone for regular shifts then possibly a fixed term contract might be the way to go. However several consecutive fixed term contracts could lead to being classified as permanent
     
  16. Jess Peletier

    Jess Peletier Mortgages, Finance & Property Strategy Aust Wide Business Member

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    Maybe so - but playing devils devils advocate...

    Is it a money management issue? Casuals get paid 25% loading instead of holiday and sick pay. That's instead of 4 weeks annual leave and 2 weeks sick...which is 11% of the time they're expected to be at work.

    If they were paid the same, but had no benefits I could understand the issue - but they're paid significantly more than a permanent counterpart.

    To my mind - the fact they have regular, ongoing hours means the employer 'needs' them...which gives them some certainty and security to their employment status.

    Is the disadvantage actually as great as it's perceived to be? Or is it just because people generally don't manage their money differently, and then feel hard done by when they do get sick, or want to take holidays?
     
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  17. coins

    coins Well-Known Member

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    Are you sure all casuals get paid a 25% loading? Is that law? I really have no idea how much "loading" I get paid as all people doing my type of work are all employed as casuals.

    Plus having to work anytime there's a public holiday too at those same rates, which you have failed to mention above. No extra penalty rates for working on public holidays.
     
  18. Jess Peletier

    Jess Peletier Mortgages, Finance & Property Strategy Aust Wide Business Member

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    I don't know, I was just quoting something above. Haven't done the research. :) A quick google suggests 15-25%.

    Even at 15% it'd come pretty close to covering the odd public holiday, I'd imagine?

    (Not having a go at all, I respect that you're paid casually, but even permanent jobs are not so permanent in reality...)
     
  19. Scott No Mates

    Scott No Mates Well-Known Member

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    It can only be determined when there's an applicable award or EBA ie someone on the award gets $20/hr, sick leave, mat/pat leave, LSL, public holidays, annual leave etc does an "all-in" rate of say $30/hr compensate for the uncertainty & loss of continuity benefits?
     
  20. tedjamvor

    tedjamvor Well-Known Member

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    Not true, at least in the case of the Hospitality Award. Has both Saturday+Sunday as well as PH penalty rates for both permanent and casual staff with casual staff always +25% compared to the permanent.

    Casuals don't have the same protections in being able to take extended (unpaid) leave for holidays etc. Many businesses will cut these staff, or reduce hours to the min required until staff leave because they need more money.