Employer groups welcome proposals but unions vow to push back
The contentious industrial relations omnibus Bill has an ally in the National Road Transport Association (NatRoad), particularly around the reform of casual employment.
Some elements of the Bill are widely backed by employer groups but derided by unions, already evoking WorkChoices comparisons.
The reform would introduce emergency provisions – such as due to Covid-19 impacts – for employers to negotiate arrangements that do not comply with the better off overall test (BOOT), criminalise deliberate and systematic wage theft, offer ‘part-time flexibility’ for workers to trade penalty rates for more shifts, and apply a definition for casual work and remove backpay claims for misclassified casuals.
The latter reforms are “supported by the road transport industry”, NatRoad CEO Warren Clark claims.
He points to problems associated with engaging employees on what were intended to be casual arrangements, but have been subsequently categorised as permanent employment by courts, which have caused industry confusion.
“Clearly, if an employee is engaged under a modern award as a casual and is paid the casual loading, then they must be engaged and paid as a casual in accordance with the award and they shouldn’t be able to ‘double dip’,” he says.
“The Bill will bring about sensible and worthwhile change.
“Certainty about employment arrangements is vital. Businesses must have the confidence to employ and employees must receive their correct entitlements.
“Where the law is uncertain and unfair that doesn’t happen.”
How a court decision reignited the casual work definition debate, here
Clark explains the Bill will introduce a statutory definition of a casual employee and will prevent unintended outcomes in situations where employers have to pay an employee twice for the same entitlement.
“In the event that an ongoing employee is misclassified as a casual, the Bill enables casual loading amounts to be offset against claims for leave and other entitlements in certain circumstances, to address the potential for ‘double dipping’ when recognising the employee’s correct classification.
“Together with the statutory definition, the ability to offset the loading already paid will give employers confidence to create jobs by using casual employment as a flexible employment option that will benefit all parties.
“While the industry is still grappling with the challenges created by the pandemic on the back of a driver shortage, the last thing we need is a legal barrier to flexible employment options.”
On the issue of casual workers being assigned ‘permanent’ responsibilities, Clark backs the Bill’s statutory obligation for employers to offer regular casual employees’ conversion to full or part-time employment.
The new entitlement will require an employer to offer an eligible casual employee conversion to full or part-time classification after 12 months of employment, with a residual right of conversion in certain circumstances for employees who have not received or accepted an employer offer to convert.
“This will help employees engaged as casual employees who work regularly to become ongoing employees, if that is their preference, noting that in the road transport industry many casuals will work regular patterns of hours because the system operates on the basis of driver rostering,” Clark says.
“We call on the Government to allocate resources to educating employers about these new procedures, as many have turned their backs on employing casuals because of the existing confusion in the law.”
The Transport Workers Union (TWU), echoing wider union sentiments, says the definition of casual work in the Bill will entrench the right of employers “to use casuals as they want”, establish insecure work in a statutory definition, and decrease job security.
“The Morrison government’s omnibus IR Bill will allow employers to make agreements that cut the wages and conditions of workers,” Kaine says.
“We stand firmly against any provisions which allow employers to apply to put in place an enterprise agreement for several years which fails to meet minimum standards.
“Over half of casual workers do not receive the legal 25 per cent loading in their pay according to a report this week by Professor David Peetz of Griffith University.
“The focus of the Government should be to ensure workers are paid their entitlements.
“After a year when transport workers proved themselves to be essential workers carrying out a critical service this is a slap in the face.
“Drivers have kept essential medicines, fuel and food supplies going, traversing closed borders and overcoming delays and administrative hoops.
“Their efforts should be recognised and their pay and conditions should not be threatened.
“There is much at stake with the government’s flawed Bill. The link between pay and safety in road transport is well established.
“When wages and conditions are cut this will have an effect on deaths and injuries on our roads.
“Drivers need more not less protections, to recognise the vital worker they do and to keep the safe on the roads.”