Worker found to have had right to full-time permanency
A freight handler’s right to become a permanent full-time employee has been cemented in the Federal Court of Australia, with Toll’s defence in the case failing.
Along with new so-called casual conversion rights, which the Fair Work Commission expanded this year and appears yet to have been tested in court until this case, the transport giant fell foul of the relevant, 2013, enterprise agreement along with several other shortcomings.
That stated objects of that agreement “promoting job security” and “maintaining the safety net and enhancing fair working conditions”.
But the central issue was that Toll had sought place the worker on permanent part time basis of 30 hours a week, rather than 38 hours he was entitled to expect on a ‘like-for-like’ basis.
The judge, Justice Jeffrey Flick, in a ruling that runs to 324 paragraphs, notes that Clause 12.6 of the Road Transport and Distribution Award 2010 – the clause dealing with the “right to elect” to convert from casual employment to permanent employment – provides the option after 12 months and that clause 21(e) of the Agreement and 12.6 of the Award confers a right to the like-for-like basis.
“The right which is conferred upon an employee by cl 21(e) is not to be constrained by that which an employer may be prepared to offer,” the ruling states.
“Clause 21(e) confers a valuable right upon a casual employee who can bring himself within the benefit of that clause. That right is not merely a right to convert to a permanent position; it is also a right to convert to a permanent position on a ‘like for like basis’. It is not a matter within the sole province of an employer to offer less than the right conferred.”
The events central to the case also occurred early last year, when Toll was seeking to reduce costs throughout its structure including capping casual staff work hours.
Toll was ordered to pay $43,000 in total for failure to provide employee records on request; failure to consult in respect to the capping of hours and the changing of start times; misrepresentation the worker’s right to represented and the like-for-like failure.
Toll says it is invested in casual conversion.
“Toll is committed to providing job and financial security for our people, and we wholly support our casual employees in having the opportunity to convert to permanent employment,” a spokesperson tells ATN.
“Since 2011, our national enterprise agreements have provided greater opportunities for casuals to convert to full time than the award.
“The enterprise agreement subject to this court decision outlines a commitment from Toll to convert 300 casual employees to permanency in the first year of its term.
“Toll will carefully review the court ruling and use this as an opportunity to improve our systems and processes to better support our people to have a long and rewarding career at Toll.”