Casual, vulnerable and vocal – the HR dilemma of 2018

Notoriously complex legislation, a revitalised union movement, and a hard-nosed regulator – are all converging on the casual worker

Casual, vulnerable and vocal – the HR dilemma of 2018

Business is facing the perfect storm in workplace relations. Notoriously complex legislation, a revitalised union movement, and a hard-nosed regulator – are all converging on the casual worker.

With the Fair Work Ombudsman reporting a 66% increase in fines over 2017, an alarming trend of non-compliance can be traced to employer assumptions on the work arrangement. Are casuals easier to hire, pay, and dismiss?

The answer can be a costly ‘no’. Tripping up many employers is the common belief that a flat hourly rate with 25% casual loading will override the provisions of the modern award, including overtime and penalty rates, paying to the right classification, or even casual conversion. Unfortunately, determining the provisions of the award can be problematic in itself. Independent researchers acting on behalf of the Fair Work Commission recently concluded that 88% of modern awards did not have a clear answer on overtime.

Young and overseas workers – typically deemed vulnerable – have become a focal point of the debate (accounting for more than 40% of the casual workforce). Sally McManus, Secretary of the ACTU, is leading a bitter public campaign against the ‘casualisation’ of the workforce, urging workers to make a stand against perceived ‘wage theft’. Meanwhile, media headlines are testament to the severe fines imposed on employers who underpay casual workers, whether intentionally or by accident.

Arguably the greyest area of compliance surrounds the casual who works on a ‘regular and systematic’ basis for a period of 12 months or more. If that worker were to lodge a claim of underpayment in a common law court, the judge may uphold the worker as a permanent employee, opening the door to an Unfair Dismissal claim (if the contract was terminated) and underpayment for accrued annual leave.

A recent decision by the Federal Circuit Court of Australia (Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018] FCCA 279) saw a long-term casual labourer – who was dismissed after incurring an injury - receive 15 years of paid annual leave.

Businesses can get on top of what they need to do now to protect their business by attending any one of the seminars across NSW – presented by award winning law firm Australian Business Lawyers & Advisors.

Register now by clicking here.
 

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