CASUAL employees are likely to be granted the right to convert to full-time work after six months in the NSW Secure Employment Test Case, according to a leading employment lawyer
CASUAL employees are likely to be granted the right to convert to full-time work after six months in the NSW Secure Employment Test Case, according to a leading employment lawyer.
Maurice Baroni, senior associate with Clayton Utz, predicted the NSW Industrial Relations Commission is likely to follow the precedent set by the Australian Industrial Relations Commission in 2000 when it granted casual employees under the federal Metal, Engineering and Associated Industries Award the right to convert to full or part-time employment after six months work with the same employer.
“Whether the application as a whole will be successful is difficult to say,” Baroni said. “Given the current constitution of the commission it’s likely that certain parts of it will be successful.
“It’s not entirely clear which parts, but certainly the right for casuals to convert to permanent employment will be successful, whether in total or part. There will be some change to awards as a result of that decision,” he said.
Baroni predicted that the impact upon labour hire companies would be significant, in that they would not necessarily be able to guarantee continuous work on the part of casuals.
“There’s a major issue for those organisations and how they deal with that. One can readily see that it could devastate that business overnight for obvious reasons,” he said.
Baroni also said it would change the way HR professionals do business in regards to fluctuating labour requirements and utilising the services of labour hire companies.
He also predicted that, if the commission does grant casuals the right to convert to full-time employment in NSW, other jurisdictions might follow suit.
“The equivalents to labour councils in other states will probably initiate similar proceedings. Nothing’s special in NSW about the utilisation of casuals, labour hire firms and contractors,” he said.
The test case, which is due to be heard in May, also seeks to restrict employers from outsourcing labour. Baroni said this could be an issue for employers in terms of utilising sub-contractors in lieu of the permanent workforce.
“The application is quite detailed in terms of how outsourcing can occur, when it can’t occur and what must happen before it occurs – if indeed it can occur,” he said.
“It’s a very big issue in NSW for the way businesses will operate in the future, and anyone that says it’s not is kidding themselves.”
John Plummer, president of the Recruitment and Consulting Services Association (RCSA), said that the test case was a “direct attack” on the use of casuals in the workplace and the ability of employers to use flexible labour practices.
“It’s an attack upon the livelihood of members of the RCSA, because we can only see reduced use of casuals in the workforce if everything gets up,” he said. “Our member base in the RCSA has a very large casual workforce management component.”
He said that if the major points of the test case are successful, it would be “very bad news” for the employment services industry and also impact negatively upon client relationships and fee incomes.
He predicted that it could lead to a 25 per cent reduction in business for the recruitment industry, although “half is entirely possible”.
“We have to recognise it for what it is, and without a doubt it’s an orchestrated attempt by the unions to control our industry,” he said.
“It’s not only here in Australia, but there arecurrently 23 states in America that have similar ‘union inspired attacks’ on the casualisation of the workforce.”
However the Labor council of NSW, which lodged the test case with the NSW IRC, said it has been concerned for some time about the growing casualisation of the workplace.
Our view is that we need to review what’s happening in the labour market,” said Chris Christodoulou, deputy assistant secretary of the council.
“We think it’s appropriate that if labour hire is being used as a way of introducing casuals into the workforce, then those workers should get no less rates of paying conditions than the employees of the host employer,” he said.
Christodoulou also said that Australia had the second highest rate of workforce casualisation in OECD countries.
“We’re finding that a number of labour hire companies quoting to pay the same wages and conditions as the host employer, but then they’re undercut by other labour hire companies that pay cheaper forms of wages,” he said.
