Improving rights for casuals
19/2002
Contents
INTRODUCTION
THE COMPOSITION AND CHARACTERISTICS OF THE CASUAL WORKFORCE
Gender
Hours worked by casuals
Employment security
Duration of casual employment
Casual employment by industry
Casual employment by occupation
Union membership
WHY CASUAL EMPLOYMENT IS GROWING
Supply
Demand
“Just in time” labour
Institutional changes
AUSTRALIAN LEGISLATIVE RESPONSES
Parental leave
Termination of employment
Long service leave
WHAT IS A CASUAL?
Award definitions
Legal definitions
THE METALS CASUALS CASE
The decision in context
The safety net
Primacy to bargaining
Allowability
The claims
OTHER RELEVANT CASES
Clerks (SA) Award
Queensland Casual Loading Case
Country Printing Award and Graphic Arts - General - Award
CASUAL LOADING
Traditional and other factors
CASE PROPOSITIONS FOR APPLICATIONS DRAWING ON THE METALS CASUALS CASE
EVIDENCE NEEDED FOR A CASE
General
Right to elect
Casual loading
ORGANISING FOR CASUAL RIGHTS
Questions to ask
What can workers do?
Permanent workers
Attachments
Casual loadings in major federal awards Appendix A
LHMU member letter Appendix B
LHMU member survey Appendix C
INTRODUCTION
The increase and spread of casual employment in the Australian labour market presents one of the greatest challenges to unions.
Casual employees make up over one quarter of the total workforce, a proportion which has doubled since 1982.[1] Casuals are to be found in the public and private sectors and in all industry sectors and occupations. Sixty per cent of employment growth between 1990 and 1999 was casual.[2]
The purpose of this document is to assist unions with award applications aimed at increasing the rights of casual employees, particularly those employed on a regular and long-term basis.
In the Full Bench decision in Re Metal Engineering and Associated Industries Award 1998 – Part 1[3] (“the Metals Casuals Case”), the Commission determined significant improvements to employment security for casual employees under the Award and an increase in the casual loading.
The key elements of the decision were:
- A right for casuals to convert to full-time or part-time employment after six months (extendable by agreement to 12 months);
- Terms of engagement to be provided in writing;
- Minimum daily hours for part-timers and casuals;
- Increase in casual loading from 20 to 25 per cent.
The case was run by the AMWU on behalf of the Metal Trades Federation of Unions. The application was strongly opposed by employers and the Commonwealth.
The union ran an extensively researched and presented case, concentrating on evidence about casual employment within the manufacturing industry. The case was run specifically on the basis that it was not a test case.
However, it is open to unions in other industries to make applications based on the principles of the Metals Casuals Case. However, applicants will have to run a full case with sufficient evidence to back up their submissions.
It may be that not all elements of the case are relevant to every award; for example, many awards already provide for a casual loading of 25 per cent or above.
THE COMPOSITION AND CHARACTERISTICS OF THE CASUAL WORKFORCE
Gender
In August 2001, 31.5 per cent of female and 23.6 per cent of male employees were employed on a casual basis.[4] Eighty four per cent of women and 54 per cent of men employed casually are engaged on a part-time basis.[5]
The gender balance of the casual workforce is changing, with men making up a greater proportion. Women’s share of casual employment has dropped to 53 per cent In August 2001, from 74.1 per cent in 1984. During the same period the number of male casual employees grew by around 200 per cent.[6]
In industries dominated by female employment the majority of part-time positions are available only on a casual basis. Many women prefer or are obliged to work part-time. In December 2000, 38 per cent of unemployed females sought part-time employment. This is especially evident for those women that are the primary carers of young children.
46.1 per cent of women work part-time hours and 71 percent of all part-time employees are women.[7] As most part-time jobs are offered on a casual basis, women are disproportionately represented in the casual workforce. Whilst significant and growing number of casuals are male, they tend to work longer hours, many on a full-time basis.
Hours worked by casuals
Casual employees worked an average of 23.3 hours per week in August 1998, an increase from 21.6 hours in 1988. The increase in average hours is a consequence of the significant increase in male casual employment.
Eighty two per cent of casual employees work part-time. The ABS defines a part-time employee as any employee who usually works less than 35 hours per week in all jobs.
11.6 per cent of the full-time workforce in August 2001 was employed on a casual basis, more than double the 1982 estimate of 4.5 per cent.[8]
Table 3:Average Hours Worked per Week for Casual and Other Employees by Sex.
Casual / Other1988 / 1998 / 1988 / 1998
Males
/ 28.5 / 29.1 / 38.3 / 39.2Females / 17.7 / 18.4 / 33.2 / 32.7
Persons / 21.6 / 23.3 / 36.5 / 36.4
Source:ABS, Labour Force, Australia. Cat. No. 6203.0. July 1999
The ABS reported in July 1999:
“When surveyed, all part-time employees were asked whether they would have preferred to work more hours. The results indicate that not only did casual workers tend to work fewer hours than other employees in August 1998, but casual part-time employees (33%) were more likely than other part-time employees (19%) to prefer to work more hours. These proportions represented an increase from August 1988 when 20% of casual employees and 11% of other employees working part-time would have preferred to work more hours.”[9]
A 1999 ACTU survey of 6,770 employees found that 38 per cent of casual employees indicated they would like to work more hours and 25 per cent of casual employees believed that they could not get enough work to support themselves or their family.[10]
A further 59 per cent of casual employees and 69 per cent of fixed term workers would prefer their current job to be permanent.
Employment security
An examination of indicators of relative levels of employment and income security show that casual employment is more precarious than traditional employment.[11]
- More than 62 per cent of casual employees have variable monthly earnings. This compares with 12 per cent of those in traditional employment.
- In 1998 around 10 per cent of casual employees had two or more jobs.
- Less than 3 per cent of the casual workforce had access to any form of paid leave.
Precarious employment combined with a fluctuating income combine to severely restrict the ability of casual employees to take out housing and personal loans, often causing further financial and personal hardship.
Casuals Kit1
Employment arrangements and indicators of security, 1998
Indicators of security
Employment arrangements / Number of employees (a)‘000 / Proportion who work part-time
% / Proportion with earnings that vary monthly
% / Proportion with two or more jobs
% / Proportion with any paid leave
% / Proportion with a duration with employer of more than 2 years
%
Traditional employees
Ongoing part-time employees
Casual employees
Restricted tenure employees
Employees paid by a labour hire firm
All employees
/ 4 126.8583.8
1 486.9
356.4
84.3
6 726.1 / . .
. .
82.1
35.8
36.2
28.9 / 11.8
26.4
61.8
27.9
44.7
25.5 / 3.2
9.8
9.6
8.0
*5.3
5.6 / . .
. .
97.2
37.4
78.4
25.0 / 64.2
63.9
26.5
22.9
10.4
53.6
(a)The total does not equal the sum of employees in each group because the total includes other employees who did not fall into any of the listed groups and because those classified as being in casual jobs, restricted tenure jobs and jobs paid by a labour hire firm are not mutually exclusive.
Source:ABS; Australian Social Trends, Cat. No. 4102.0, July 2000; Forms of Employment Survey, August 1998
Casuals Kit1
Duration of casual employment
There is compelling evidence to show that casual employment is not generally short-term or temporary. A Ministerial Information Paper prepared by the Department of Employment, Workplace Relations and Small Business found:
“ABS data indicate that many casuals have been with their current employer for lengthy periods of time. In 1998, almost three out of five casual workers (58 per cent) had been with their employer for more than a year; over 20 per cent had been with their employer for five or more years; and some 10 per cent for ten or more years. Furthermore, three-quarters of self identified casual employees expected to be with their current employer or business in twelve months time.
Wooden argues that data support his claim that the average job tenure for a casual adult employee is almost 4 years in comparison to a so-called permanent full-time employee who enjoys a tenure between 6 and 7.5 years.[12]
61.3 per cent of female part-time casuals and 46.8 per cent of male part-time casuals have been employed by their current employer for more than 12 months.
64.2 per cent of male full-time casuals and 58.4 per cent of female full-time casuals have been employed in excess of 12 months.[13]
Casuals Kit1
Length of time with current employer, permanent and casual employees by gender. November 1998.
Full-time / Part-time / Full-time / Part-timepermanent / permanent / casual / casual / Total / All
employees / employees / employees / employees / employees / casual / casual / casual
(000's) / % / (000's) / % / (000's) / % / (000's / % / (000's) / (000's) / (000's) / %
Males
Less than 1 year / 478.8 / 16.1 / 22.8 / 26.3 / 143 / 35.8 / 208.4 / 53.2 / 853.0 / 351.4 / 721.7 / 41.5Less than 6 months / 249.2 / 8.4 / 13.9 / 16.1 / 106.2 / 26.6 / 148.5 / 37.9 / 517.8 / 254.7 / 508.9 / 29.3
6 and under 12 months / 229.6 / 7.7 / 8.9 / 10.3 / 36.8 / 9.2 / 59.9 / 15.3 / 335.2 / 96.7 / 212.8 / 12.3
1 and under 3 years / 597.2 / 20.1 / 29.5 / 34.1 / 92.7 / 23.2 / 103.4 / 26.4 / 822.8 / 196.1 / 447.8 / 25.8
3 and under 5 years / 454.8 / 15.3 / 14.7 / 17.0 / 41.4 / 10.4 / 38.3 / 9.8 / 549.2 / 79.7 / 206.3 / 11.9
5 and under 10 years / 561.7 / 18.9 / 11.8 / 13.6 / 47.8 / 12.0 / 25.2 / 6.4 / 646.5 / 73.0 / 191.0 / 11.0
10 years or more / 882.3 / 29.7 / 7.8 / 9.0 / 74.9 / 18.7 / 16.7 / 4.3 / 981.7 / 91.6 / 170.3 / 9.8
2974.8 / 100.0 / 86.6 / 100.0 / 399.8 / 100.0 / 392 / 100.0 / 3853.2 / 791.8 / 1737.1 / 100.0
Females
Less than 1 year / 296.3 / 18.0 / 90.6 / 16.1 / 63 / 41.6 / 307.3 / 38.7 / 757.2 / 370.3
Less than 6 months / 147 / 8.9 / 48.3 / 8.6 / 44.2 / 29.2 / 210 / 26.4 / 449.5 / 254.2
6 and under 12 months / 149.3 / 9.1 / 42.3 / 7.5 / 18.8 / 12.4 / 97.3 / 12.3 / 307.7 / 116.1
1 and under 3 years / 372.8 / 22.6 / 131.7 / 23.5 / 33.6 / 22.2 / 218.1 / 27.5 / 756.2 / 251.7
3 and under 5 years / 288.7 / 17.5 / 90.8 / 16.2 / 15 / 9.9 / 111.6 / 14.1 / 506.1 / 126.6
5 and under 10 years / 340.1 / 20.7 / 120.8 / 21.5 / 20.6 / 13.6 / 97.4 / 12.3 / 578.9 / 118.0
10 years or more / 348.7 / 21.2 / 127.7 / 22.7 / 19.1 / 12.6 / 59.6 / 7.5 / 555.1 / 78.7
1646.6 / 100.0 / 561.6 / 100.0 / 151.3 / 100.0 / 794 / 100.0 / 3153.5 / 945.3
Source: ABS Career Experience, Cat. No. 6254.0, November 1998.
Casuals Kit1
Casual employees, length of service with current employerLess than 12 / More than 12 / More than 5 / More than 10
months service / months service / years service / years service
% / % / % / %
Full-time casual employee
Male / 35.8 / 64.2 / 30.7 / 18.7
Female / 41.6 / 58.4 / 26.2 / 12.6
Part-time casual employee
Male / 53.2 / 46.8 / 10.7 / 4.3
Female / 38.7 / 61.3 / 19.8 / 7.5
All casual employees / 41.5 / 58.5 / 20.8 / 9.8
Source: ABS Career Experience, Cat No 6254.0, November 1998
Casual employment by industry
In 2001the industries with the highest proportion of casuals were Agriculture, forestry and fishing; Accommodation, cafes and restaurants; Cultural and recreational services and Retail trade.
With the exception of agriculture, the majority of employees in each of these industries is female. In all industries the majority of permanent full-time positions are held by men. Table 13 shows that women comprise 67 per cent of all non-seasonal casual employees in the Agriculture industry.
Retail trade was the industry with the highest number of employees and casual employees.
Casual employment by occupation
Casual employees are concentrated in lower skilled and paid occupations. The proportion of casuals decreases as the skill level of the occupational group increases. The level of casualisation is lowest at the level of managers and administrators and professionals. There has been significant growth in both the level of casual and restricted tenure employment in the education sector, at 16.2 and 16.6 per cent respectively. A significant percentage of this increase is at the professional level involving teaching staff.
More than half of all elementary clerical, sales and service workers are employed on a casual basis, closely followed by Labourers & related workers at 42 per cent.
Union membership
Only 9.4 per cent of casual employees, defined as employees without leave entitlements, are union members, compared to 30.1 per cent of employees with leave entitlements. Interestingly, union density amongst casuals increased from 8.9 per cent to 9.4 per cent in the year to 2001, while it fell from 30.6 per cent to 30.1 per cent amongst permanent employees.[14]
WHY CASUAL EMPLOYMENT IS GROWING
Supply
Most individuals are not in a position to choose the form of their employment contract. In 1986, 40 per cent of casual employees would have preferred to be permanently employed. [15]
An ACTU survey recently found that 59 per cent of casuals would prefer permanent employment.[16]
People may enter the workforce on a casual or part-time basis because other commitments prevent them from working on a full-time basis. Many casuals, particularly full-time students and younger workers prefer part-time employment. The school retention rates and higher levels of participation in tertiary education over the past two decades have increased the labour force available to undertake part-time or casual employment. Year 12 retention rates have increased from 35 per cent in 1980 to 72.45 per cent in 1999 (66.4 per cent for males and 78.5 per cent for females).[17]
Increased workforce participation rates of women and, in particular, women with children, have also contributed to the supply of labour willing to work part-time hours. The female participation rate has increased from 44.6 per cent in April 1980 to 54.7 per cent in December 2000. The male participation rate was 72.5 per cent, with an overall participation rate of 63.5 per cent.[18]
Another source of potential casual employees is found in the expanding pool of older, predominantly male employees who have been unable to obtain alternative employment following retrenchment as a result of downsizing, closure or outsourcing.
Demand
The growth in casual employment in Australia is primarily demand driven. Of the 1.15 million jobs created in Australia in the decade to 1998, almost 70 per cent were offered on a casual basis, the vast bulk of which were part-time casual positions.
The growth in casual employment appears impervious to cyclical fluctuations in the economy. The level of casual employment in Australia has continued to rise as a percentage of overall employment through periods of economic growth and decline.
“Just in time” labour
The use of casual employees allow employers to maximise flexibility through the use of “just in time” labour. Changes in technology and management techniques have enabled some employers to match variable demand with casual employment.
Allan’s study of the employment behaviour of private hospitals found that employers are extending the use of precarious forms of employment into all occupational categories, whilst simultaneously attempting to build long-term relationships with casual employees.
“The main contention is that, in the case of private hospitals, employers do attempt to establish enduring employment relationships with the non-standard workforce. This arises because private hospitals are increasingly using non-standard labour to lower costs by more carefully matching labour use to variations in hospital utilisation. A relatively continuous demand for non-standard workers, in turn, generates pressures for managers to develop on-going relationships with these staff to ensure a steady labour supply and to preserve the quality of service provision. Employers are thus seeking core workforce behaviours from a growing peripheral workforce.”[19]
Allan argues that, unlike manufacturing, the delivery of personal services entails a personal interaction between the consumer and the service deliverer and that the quality of service is a crucial component of the service itself.
Allan describes the “managerial conundrum” involving the need to maintain a flexible, peripheral workforce and, on the other hand, provide a reliable and quality service. A management decision to increase the utilisation of casual labour was intended to allow the private hospitals to match the level of labour utilisation with demand.
To minimise staff turnover, one of the case study hospitals, Privcare, targeted middle aged, married local women for employment as casuals. Allan found that part-time casual employees were more likely to be married than full-time staff and over 60 per cent of female casual employees had over one year’s service and more than 30 per cent had over two years’ service. It was found that the average length of service for female casual staff was 25 months. This compared to 37 months for full-time staff and 56 months for part-time staff.
At another hospital involved in the case study, the Charity Hospital, over 90 per cent of casual staff had been employed for over one year and 74 per cent had more than two years’ service. The average length of service of casual nursing staff, at 43 months, was found to be one month greater than full-time nursing staff.
Part-time work, whether casual or ongoing, allows for improvements in the efficiency of labour utilisation. The elaborate fine-tuning of rosters and staffing levels and mix of full-time, part-time and casual staff over an increased spread of ordinary hours ensures that overtime is used only in case of unexpected events or emergencies.
In most cases there is a clear financial incentive to reduce the use of overtime offered to full or part-time employees and to utilise casual labour. A standard casual loading of 20 per cent compares to a standard overtime loading of 50 per cent.
These cost savings can easily be lost through absenteeism and the consequences of poor morale, if the desired flexibility by the employer does not correlate with the regularity of work and flexibility desired by the employee. This may especially be so during periods o+f high demand for labour.
Employer choices regarding the appropriate mix of labour may, in many cases, not be informed decisions or may be based on what could be paid rather than what has to be paid.
A report produced by the Evatt Foundation found:
“The evidence from this project suggests that the higher rates of casual employment in workplaces/industries in the private sector and/or the lower rates of unionisation reflect the greater ease with which the existing regulatory framework is breached, rather than a rational consideration of the costs and productivity of labour. On the evidence available here, employer decisions to engage labour on a casual basis rest partly on a miscalculation of the costs of casual employment , an inappropriate assessment of their employment needs and the (incorrect) assumption that on-going casual employees could be terminated with greater ease.”[20]
Institutional changes