In 2022, around 40 per cent (2 in every 5) of Australian workers are in precarious work. This includes casual employment, fixed-term contracts, labour hire and sham contracting.
All types of precarious work are impermanent and unprotected by laws and industrial arrangements. People have limited job and income security and very little protection from arbitrary actions by employers.
The level of casual work in Australia is the third highest of the OECD countries. In August 2021, according to the Australian Bureau of Statistics, 2.4 million employees (23% of all employees) were casuals and not entitled to paid leave. Their pay and hours worked varied from week to week without any guarantee of a minimum amount of work.
Casual workers earn less than permanent workers – casual workers with full-time hours average just over three-quarters of what full-time permanent workers get. Casual part-time workers get just over a half of permanent part-time workers.
What needs to be done
A new and comprehensive set of employment rights is needed to give all workers real security. This requires either a new employment law and-or very substantial changes to the current ‘Fair Work Act’. The basis should include:
- All types of employment to be treated as ongoing with unrestricted application of all employment rights including unfair dismissal.
- The default position that employees have ongoing employment with leave, defined working hours and termination only with notice and for statutory reasons.
- Exceptional circumstances for temporary employment to be limited to situations such as temporary replacement of a named worker in a defined job, or to do an explicit ‘one-off’ task, or in emergencies and extremis.
- As a minimum, equivalent standards to those in the EU Directive on Platform Work 2021 to be applied in Australia, with a legal presumption that an ongoing employment relationship exists between the digital labour platform and a person performing platform work.
- All workers to have access to portable leave arrangements covering all types of accrued leave including sick, personal and long service leave.
- Revise unfair dismissal provisions to apply to all workers without qualifying periods and extend them to the failure of employers to provide permanent employment.
- In all unfair dismissal matters, proof of fairness and due process to be on the employer. Workers found to be unfairly dismissed must be offered the option of reinstatement.
- Adequately resource the Fair Work Commission and other relevant tribunals to ensure that unfair-dismissal matters are handled expeditiously.
The current legislative regime under the Fair Work Act protects managerial prerogatives over restructuring and redundancy. The bargaining regime is structurally weighted against workers. Workers and unions are required to advance all their claims during the bargaining period and unmet claims are dormant for the life of the agreement.
Bargaining operates in a different way for employers even though, formally, they also cannot take protected action outside a bargaining period. However employers are free, among other things, to restructure, contract-out, out-source, declare redundancies and reduce the hours of casuals at any time during the life of an enterprise agreement.
The best way to restore balance is to legislate that significant restructuring is undertaken only according to a negotiated agreement. The negotiation should cover the scale and scope of change and job losses and the implementation of change including the criteria to apply in the event of any redundancies. To remove any doubt, the Fair Work Act should require that significant restructuring cannot occur other than under a scheme of arrangement that has been certified by the Fair Work Commission. In turn, the Act should require that restructuring is implemented with maximum retention of workers, no increase in casualisation, out-sourcing or contracting-out, and a demonstrated preference for retraining over redundancy.
The necessary balance between employers and workers in restructuring and redundancies will also require two other changes. First, that the parties in negotiations over major restructuring would be able to apply for bargaining orders and take protected
action on exactly the same basis as for the making of a new agreement. Second, that the Fair Work Commission would be able to arbitrate on the substantive matters including but not limited to the scale and scope of job losses, criteria for redundancy and retraining arrangements.
Political party positions
The ACTU developed in 2018 a detailed policy: “Australia's insecure work crisis: Fixing it for the future”.
The ALP has a strong policy of making job security ‘a core focus for the Fair Work Commission’s decisions’; extending the FWC powers so it can set standards for app-based gig work; legislating for casuals to have a path to permanent work, and limiting the number of fixed-term contracts. They will also adopt stronger measures on wage theft and requiring labour-hire workers to get the same conditions as direct workers.
The Greens have a comprehensive policy based on presumption that all employment must be ongoing unless there is a case for genuine casual employment.
While both parties deal with precarious work neither really gives workers and unions the means of dealing with managerial prerogatives to dismiss almost at will on grounds of redundancy.
(This article is part of the SEARCH Activists Guide to the 2022 Election. You can download the entire guide by clicking here.)