AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s. 113 applications to vary

s. 108 references of applications to vary

THE VEHICLE INDUSTRY – REPAIR, SERVICES AND RETAIL – AWARD 1993

(ODN C No.01339 of 1974)

[Print H5658 [V0019]]

(C No. 39482 of 2000)

Retail, Wholesale and Distributive Employees (NT) Award 2000

(ODN C No. 02985 of 1980)

[Print S8032 [R0018]]

(C No. 39483 of 2000)

The Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998

(ODN C No. 00389 of 1975)

[Print P9138 [H0008]]

(C No. 39484 of 2000)

Clerical and Administrative Employees (Victoria) Award 1999

(ODN C No. 34749 of 1995)

[Print M8184 [C1128]]

(C No. 39485 of 2000)

Totalizator Agency Board of Victoria Off Course Totalizator Employees Award 1993

(ODN C No. 21022 of 1992)

[Print K8649 [T0392]]

(C No. 39486 of 2000)

AUSTRALIAN COUNCIL OF TRADE UNIONS

Volume 1

WRITTEN SUBMISSIONS

Table of Contents

Vol 1

Introduction

/ 5

Detail of claim

-grounds
-jurisdictional issues / 9

Definition of casual employment

/ 15

Casual loading

-as a deterrent to casual employment
-parental leave & casual loading
- / 21

Trends in casual employment

-growth in casual employment
-composition of casual workforce
-hours worked by casuals
-indicators of security
-duration of casual employment
-casual employment by industry & occupation / 29
Reasons for growth in casual employment in Australia
-supply of casual labour
-demand for casual labour
-institutional changes / 53
Legislative responses to growth in casual employment
-Queensland
-New South Wales
-Victoria
-Tasmania
-Commonwealth
-Hreoc
-New Zealand
-qualifying period of entitlement to parental leave / 61
AIRC’s role in the development of community standards and the current parental leave entitlement
-test cases
-national wage cases
-individual cases
-development of parental leave standard
-family leave decision
-personal carers leave decision
-minimum entitlements / 75

International Instruments regarding workers with family responsibilities

-family responsibilities convention
-interpretation of international conventions
-report on workers with family responsibilities
-international conventions / 107
Balancing work & Family / 129

Declining fertility rates

/ 133

Cost/Benefit of claim

-comparative costs of casual and ‘permanent’ labour
-cost to employer
-benefit to employer
-cost to employee
-cost to government / 137

Conclusion

/ 149

D No. 8/2001

Volume 2 (part 1 & 2) contain Exhibits.

Volume 3 Contains Witness Statements

List of Tables

Table 1 / Casual Employees, by Full-time and Part-time Status, 1982-1999 / 31
Table 2 / Casualisation Density by Gender / 33
Table 3 / Average Hours Worked per Week for Casual and Other Employees by Sex / 35
Table 4 / Employment Arrangements and Indicators of Security, 1998 / 39
Table 5 / Length of time with current employer, permanent and casual employees by gender. November 1998 / 41
Table 6 / Casual employees, length of service with current employer / 42
Table 7 / Casual & Permanent, Full & Part-time Employment by Gender - Cleaning Services / 43
Table 8 / Casual & Permanent, Full & Part-time Employment by Gender - Clubs / 44
Table 9 / Casual & Permanent, Full & Part-time Employment by Gender – Cafes & Restaurants / 45
Table 10 / Casual & Permanent, Full & Part-time Employment by Gender - Accommodation / 45
Table 11 / Casual & Permanent, Full & Part-time Employment by Gender – Motor Vehicle Retailing Services / 46
Table 12 / Casual & Permanent, Full & Part-time Employment by Gender – Food Retailing / 47
Table 13 / Casual & Permanent, Full & Part-time Employment by Gender - Agriculture / 48
Table 14 / Employment Type by Industry and Occupation, 1998 / 50

1.

Introduction

With over a quarter of Australian workers now employed on a casual basis, too many workers are missing out on parental leave and its associated security of employment. Parental leave has been recognised as an important entitlement for workers since the Maternity Leave Test Case decision of 1979.[1] Maternity leave was subsequently extended to cover adoption and to apply to fathers.

All long-term casual employees should be entitled to this leave and it is inequitable that they are denied a basic community standard.

The Commission in the Maternity Leave decision of 1979 adopted the view that the concept of continuity of employment in industry should not be incompatible with motherhood. The Commission expressed the view that:

“The claim, if granted would recognise the special industrial interests of those female employees who elect to combine motherhood with continued participation in the work force. The preservation of job security in the event of maternity might well facilitate career opportunities and encourage career aspirations amongst women who have hitherto regarded termination of employment as an inevitable consequence of motherhood.”[2]

The views of the Full Bench of the Commission in 1979 remain relevant today and should be placed in the modern context, particularly as they pertain to casual employees.

The nature of casual employment has significantly changed in the last two decades. The percentage of the work force employed on a casual basis has more than doubled; the average length of employment on a casual basis has considerably expanded and the industries with substantial levels of casual employment have also increased. Consequently, the gender, age and occupation of a casual employee are more widely spread than ever before.

More than a quarter of the Australian workforce is now employed on a casual basis; nearly 60 per cent have been employed for 12 months or more by their current employer.

The State Governments of Queensland and New South Wales have passed legislation, which provides long term casual employees with the right to take parental leave. The Victorian Government currently has a similar Bill before the Victorian Parliament. The Pregnant & Productive report by the Human Rights and Equal Opportunity Commission made a recommendation to the Federal Government that the Workplace Relations Act 1996 (Cth) be amended to provide parental leave to long term casual employees.

Casual employees are less likely to be in a position to negotiate appropriate workplace arrangements and primarily rely on the award as a minimum safety net to provide basic community standards.

The rights and protection associated with parental leave is a basic community standard that should be available to long-term casual employees.

The provision of unpaid parental leave to long-term casuals is both equitable and cost efficient. The provision of such a benefit will remove an unjustifiable discrimination against casual employees and will assist staff retention, loyalty and productivity.

It is appropriate and within the scope of the Commission ‘s powers to grant the application before it.

Filed by ACTU - Casual Parental Leave - Submissions Vol 1. March 20011

2.

Detail of claim

Application has been made to vary the following awards:

  • Vehicle Industry – Repair, Services and Retail Award 2000;
  • Retail, Wholesale and Distributive Employees (NT) Award 2000;
  • The Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998;
  • Clerical and Administrative Employees (Victoria) Award 1999; and
  • Totalizator Agency Board of Victoria Off Course Totalizator Employees Award 1993.

With the exception of the Totalizator Agency Board of Victoria Off Course Totalizator Employees Award 1993 (Totalizator Award), all awards currently contain a parental leave clause that excludes application to casual employees.

The applications seek variation to the awards to provide an entitlement to a casual employee employed by an employer on a regular and systematic basis for several periods of employment or an ongoing period of employment during a period of at least 12 months.

The Totalizator Award does not contain a provision for parental leave. The application is intended to insert a parental leave clause in similar terms to the other awards.

The ACTU has sought to have the applications joined and for the matter to be heard by the Commission as a test case.

Grounds on which applications are made

The formal grounds on which the applications are made are:

  1. That the application is justified in that it provides for the equitable provision of parental leave to full-time, part-time and long-term casual employees.
  1. Application is consistent with the principal object of the Workplace Relations Act 1996(the Act); in particular ss3 (a); 3(i); 3(j) and 3(k).

Section 3Principal Object of this Act

3The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

(a)encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market;

(i)assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

(j)respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(k)assisting in giving effect to Australia’s international obligations in relation to labour standards.

  1. The application is consistent with ss 88B(2) and 88B(3) of the Act.

88B(2) [Safety net established] In performing its functions under this Part, the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to the following :

(a)the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;

(b)economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment;

(c)when adjusting the safety net, the needs of the low paid.

88B(3) [Considerations] In performing its functions under this Part, the Commission must have regard to the following :

(a)the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed

(b)the need to support training arrangements through appropriate trainee wage provisions

(ba)the need, using a case-by-case approach, to protect the competitive position of young people in the labour market, to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment, through appropriate wage provisions, including, where appropriate, junior wage provisions;

(c)the need to provide a supported wage system for people with disabilities;

(d)the need to apply the principle of equal pay for work of equal value without discrimination based on sex;

(e)the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

  1. The application is consistent with S 89A(2) of the Act.

89A(1)Industrial dispute normally limited to allowable award matters For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3);

(a)dealing with an industrial dispute by arbitration;

(b)preventing or settling an industrial dispute by making an award or order;

(c)maintaining the settlement of an industrial dispute by varying an award or order.

89(2)Allowable award mattersFor the purposes of subsection (1) the matters are as follows:

(h)parental leave, including maternity and adoption leave;

(r)type of employment, such as full-time employment, casual employment, regular part-time employment and shift work;

  1. The application is consistent with section 93A of the Act, ‘Commission to take account of Family Responsibilities Convention’; Schedule 12 of the Act.
  1. The application is consistent with S143 (1C) (f) of the Act.

143(IC) [Decision not discriminatory] The Commission must ensure that a decision or determination covered by subsection (1):

(f)does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

  1. The application is consistent with S170KA of the Act.
Division 5 – Parental leave
  1. The application provides for flexibility and efficiency in the operation of the award.
  1. The application provides for flexibility and efficiency within the labour market.
  1. The application does not impose an additional or undue cost on respondent employers.
  1. Such other grounds as to the Commission may be just.

Jurisdictional Issues

The Commission has jurisdiction to deal with the applications before it.

Parental leave is an allowable matter s.89A (2) (h)

The application made to revise a test case standard in accordance with Principle 4 of the Commission’s April 1999 ‘Statement of Principles’, ‘Test Case Standards’.

“4. Test Case Standards

Test case standards involving allowable award matters [s.89A (2)] established and/or revised by the Commission may be incorporated in an award. Where disagreement exists as to whether a claim involves a test case standard or a non-allowable award matter, a party asserting that it does must make and justify an application pursuant to s.107. It will then be a matter for the President to decide whether the claim should be dealt with by a Full Bench.”

3.

Definition of casual employment

As the nature and extent of casual employment has dramatically changed in Australia, the need to adequately identify casual employment has increased. Casual employment is increasingly associated with an ongoing expectation that work will be provided and accepted. The concept of ongoing or ‘permanent’ casual employment, whilst perhaps a contradiction in terms, exists in the workplace.

The Full Bench of the Australian Industrial Relations Commission in its recent decision concerning an application for a variation to the Metal, Engineering and Associated Industries Award, 1998 – Part I, (Metals casual case),[3] observed;

“[65] The AMWU relied upon and found some support in cases dealing with the construction of statutory provisions for a proposition to the effect that "casual employment" at common law is employment of an irregular character. Thus, as Dixon J observed:

"... unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual. Where the employment involves a contract of service lasting some weeks followed by a long interval of idleness and then another such contract of service and so on, more difficulty arises, if the view is taken that the employee is a casual worker. ..."[Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 555]

[66] That case was concerned with the construction of a provision in Workers Compensation legislation. As the conflicting judgments disclose, the common law notions of "successive contracts", "employment by the hour", "running contract", or "one continuing contract" fall well short of providing a clear criterion for the presence or absence of a "casual worker" or casual employment[ibid: cf. the reasoning of Evatt J at 561-562; McTiernan J at 565-566]. Neither of those latter expressions appears to have any common law foundation, although use of them, or variants, abounds in Australian statutes and regulatory instruments. Moreover, the case law generally demonstrates that the term "casual employee" has no fixed meaning. The statutory or other context in which the expression is used, and the facts and circumstances of each case must be scrutinised to arrive at the true nature of any employment relationship.”

Exhibit 1

Vol 2 Part 1

There has been a substantial growth in the use of and nature of casual employment in Australia. In some industries casual employment has become the norm rather than the exception. Ongoing, (perhaps less accurately described as permanent and full-time casual employment), may be seen to be a contradiction in terms, but exits in practice in significant areas of the economy.

These changes have added to the definitional uncertainty of what constitutes a casual employee. Awards will often define a casual employee as an employee who is employed and paid as such and are of little assistance in defining the true nature of the employment relationship between the parties.

It is increasingly difficult to differentiate between those persons with an expectation of ongoing employment, often referred to as permanent employees, and those that do not have an expectation of ongoing employment, true casual employees.

Often the true nature of an ongoing or continuing contract of employment is cloaked behind the term casual, when the employment relationship is in no respect casual in nature.

A range of factors have been examined by industrial tribunals in determining whether an employment contract was of a casual or continuing nature, generally for the purpose of determining whether there was a termination to establish jurisdiction to deal with an alleged unfair dismissal, these include:

  • whether there was a reasonable and mutual expectation of continuity of employment;
  • whether the worker had a reasonable expectation of ongoing provision of work;
  • whether the worker worked to a posted roster system or if there was regularity in the provision of work to the employee;
  • the number of hours worked in a week and if there were consistent starting and finishing times;[4]
  • whether notice was required prior to absences; and
  • whether unpaid or paid leave was granted.

In Haseldine v. Blue Moon Catering Service 1974 AILR at 200, some of the principles involved in distinguishing between ‘permanent’ and ‘casual’ employment were stated clearly:

“The normal weekly contract of hiring is a contract of indefinite duration where under the employer agrees to employ the employee and the employee agrees to work for the employer, and each party has the right unilaterally to terminate the contract. Such a contract continues in operation until one of the parties gives notice. It does not require the parties, at the end of each week, to discuss whether it will be renewed and, if it is renewed, when the employee will commence work again.

A casual employee can be a person who has an arrangement with an employer that when the employer requires his services he will call on him. The employment is irregular, the employee not working on a fixed day or at fixed times. When he is not working he has no continuing contract of employment with the employer requiring him to work again at a specified time, although he may have agreed as to when he will be available again.

He is working when so requested by the employer. Each time he performs a job he is working under a new contract of employment; it is necessary for the employer to arrange with him when and where he will work. He may not agree to work on some occasions.

The regular part-time employee, however, works under a continuing contract which is of indefinite duration. It requires the action of a party to terminate it; until this is done it continues in operation. The employee is entitled to his regular pay.”

In the above case a women was employed as a hostess at ‘intermittent’ functions. At the conclusion of some of these functions she did not make further arrangements to work at a future function. It was found that the applicant worked under a series of separate contracts as a result.