In early December 2020, the Federal Liberal Government introduced a Bill containing a suite of amendments to the Fair Work Act 2009 (Cth) that seek to significantly undercut workers' rights.
The bill is called the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020. The so-called "reforms" do nothing to support workers or job growth, instead the Bill imposes changed that - if made law - will:
The Bill creates a definition of a casual employee. A person will be considered a casual if:
These changes seek to alter the outcome of the landmark case of Workpac v Rossato  FCAFC 84 in which the Full Bench of the Federal Court held that Mr Rossato (who worked in the mining industry) was "other than a casual employee" even though his contract of employment described him as a casual employee.
This meant that he was entitled to be back paid annual leave, paid personal leave, and public holiday loadings in accordance with the Fair Work Act 2009 (Cth) because - in reality - he was not treated as a casual employee.
Casual employees usually have irregular work patterns, breaks in continuity, and the ability to accept and reject work. Whereas, Mr Rossato was required to have a firm advanced commitment to continuing indefinite work according to an agreed pattern. The employer, in this case, had all the commercial benefits of a permanent employee while avoiding paying for the costs associated with that benefit.
The Court also held that employers cannot offset (or reduce) their liability for unpaid entitlements by setting off an underpayment involving a casual against the 25% casual loading paid to casual workers. The inability to "offset" underpayments discourages employers from treating casuals like full-time employees without paying for the benefits. The Bill is seeking to change the law and permits employers to "offset" any underpayments against the 25% casual loading paid to casual workers.
Finally, this new definition of casual employee focuses on the offer of employment and the acceptance of that offer. It does not pay mind to what occurs in reality. It is designed to overturn the Workpac v Rossato decision. It allows employers to take advantage of people who have no choice but to accept the job presented to them. Ultimately, it permits employers to sign workers up as casuals, treat them like full-time staff members without providing job security or paying leave entitlements such as annual leave and personal leave.
When the Fair Work Commission approves an Enterprise Agreement, they need to compare the enterprise agreement to the relevant modern award and make sure that the Enterprise Agreement is better off overall for all employees and prospective employees.
This test ensures that when workers collectively bargain, they are able to build their entitlements over time and seeks to prevent employers from changing rostering practices to undercut entitlements after an agreement is approved.
The Bill proposes to allow the Fair Work Commission to completely disregard the BOOT tests when approving agreements for employers hit by COVID-19 and means that Enterprise Agreements that leave workers worse off than the relevant Industry Award, could be approved.
The Bill introduces part-time flexibility provisions to Awards covering workers in the retail, food, and accommodation industries.
The "flexibility provisions" permit employers to not pay overtime rates when a part-time employee works additional hours, so long as:
This change is the thin end of the wedge. While the Bill says that such arrangements will be available for two years, there is no guarantee that the Government will not seek to extend them to other Awards and industries and make the change permanent.
The Bill also contains a wage theft offence which is nothing more than a red herring. The offence is not supported by compliance and enforcement measures, does not encourage employers to engage in due diligence, targets only "systematic offenders" and fails to provide an effective mechanism for holding executives to account.
It is a blatant attempt to override the much more comprehensive reforms legislated by the Victorian Government that:
This Bill undermines the rights that were fought hard and won by unions.
If you have any questions about your enterprise agreement, your rights and entitlements as a casual worker or think you are being underpaid you can always reach out to your delegate or organiser at HACSU.
Laura Blandthorn is a lawyer and practices in Industrial and Employment Law, based out of Slater and Gordon's Melbourne office. Having previously been an advocate at the Young Workers Centre at Trades Hall, Laura is passionate about helping people get the justice and support they need and deserve.
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