‘Right to request’ permanency no answer for casuals

Published: 25 Mar 2019

What would a labour hire boss say if a casual mineworker asked for a permanent job?  A) No  B) Don’t come back tomorrow C) Nothing, too busy laughing.

Yet the ‘right to request’ permanent work is what the Coalition is proposing as a solution to the casualisation crisis in our industries.

In response to the community pressure Coalition candidates are feeling over job insecurity, the Morrison Government has introduced the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019. It proposes that casual workers should have the right to ask to convert to permanency and the boss should have the right to refuse on reasonable business grounds. In other words, it doesn’t mean much at all.

As our National Legal Director Alex Bukarica told a senate inquiry into this Bill last week: “Let's say that, in labour hire company X, there are employees who ask for or request the right to convert. Labour hire company X could say, 'Sorry, we can't, because the client says to us that we must provide casual employees and, if we convert you to permanent, we will lose our contract.' That's reasonable business grounds.”

In the coal mining industry, employing large sections of the workforce on casual arrangements through a labour hire employer has become the preferred business model for most operators.

At many coal mines, half or more of the workforce are casual labour hire workers earning much less than the permanent workers next to them. It’s wrong. 

Our Union’s win last year in the matter of WorkPac v Skene exposed the widespread ‘permanent casual’ rort. Coal miner Paul Skene, like the vast majority of casual labour hire mineworkers, was designated and paid as a casual but had regular, on-going work that was permanent in nature. He was therefore entitled to receive backpay for annual leave under the National Employment Standards.

This case has created an important legal precedent that has rattled employers and generated retaliatory legal action that is still being played out.

Importantly, it has exposed the lack of adequate definition of casual work in the Fair Work Act.

Employers argue that if they call someone a casual and pay them as a casual, they are a casual. The Skene ruling says that even if an employee is in full-time, regular, on-going work with an advance roster, they are a permanent employee regardless of how the employer designates them.

Apart from not giving casual workers any meaningful hope of converting to permanency, the ‘Right to Request casual Conversion’ Bill would lock in a definition of casual that is purely based on employer designation.

This would be a bad outcome for workers, allowing employers to continue to dodge their obligations to provide on-going employees with annual leave, carer’s leave and job security. Permanent workers deserve permanent entitlements. That’s why we are arguing against this bill becoming law.

Instead, we need real protections against casual exploitation. There have been some important commitments from federal Labor including ‘same job, same pay’ for labour hire workers – to prevent employers using casuals to drive down wages; and a right for casual workers in on-going work to convert to permanency after 12 months, not just request it. These are the kind of changes that would make employers change their dodgy practices.

One thing is certain. We can always count on employers in our industries to find new and creative ways to get out of giving workers a fair deal. BHP has demonstrated this with its new ‘Operations Services’ subsidiary that effectively brings a cut-price labour hire workforce in-house. We are challenging the Operations Services agreement in the Fair Work Commission and will do everything we can to fight arrangements that treat some workers as second-class citizens.

The best way to win better conditions for all mineworkers – labour hire and permanent – is to have organised, unionised workplaces. Our great wins at Hitachi (link) and Wongawilli (link) show that by building union density in our workplaces and being willing to take on the boss, we can deliver real improvements in pay and conditions, including permanent work.

We are always stronger together.    

We need stronger laws to stop casualisation

 

 

Tony Maher,
National President
Construction, Forestry, Maritime, Mining and Energy Union