Yes, there are some businesses who may abuse the notion of ‘casual’ engagement; but does the recent Workpac v Rossato case mean that it is now the majority of well-meaning businesses that are going to be punished because of that minority?
The recent Workpac v Rossato case has scared a lot of businesses who employ casuals.
Let’s say upfront – we know there are businesses out there engaging people as casuals when really they are not casual at all. Businesses who keep people casual because they believe they can then reduce their hours at the drop of a hat, or after 4 years suddenly just stop rostering them without risk of repercussion. Those businesses are not doing the right thing according to the legal system and need to review their practices. But what about the ones who are genuinely trying to do the right thing? Are they now to suffer the ripple effect?
We’ve worked with over 300 organisations and, in our experience, SMEs abusing the flexibility of casuals are in the minority. And those that have the kind of mentality that leads them to abuse the casual system to treat employees unfairly are not ones that we chose to work with. We do work with a large number of great employers though, who under the new rulings have reason to fear that they will get caught up in the backlash even though they are genuinely trying to do the right thing by their valued casual workforce.
These businesses have a genuine need for casual employees – perhaps due to seasonality, fluctuating demand, trying to manage cash flow, or not being able to predict workload. And so they need to be able to easily increase or decrease their labour resources. So they hire casuals – university students, working parents, people looking to break into the job market, or people taking on a second job. Yes this is stereotyping a little, but the point is that there are a lot of people who have genuine reason to be happy with a job that gives them flexibility and like the higher pay rate instead of accruing leave.
Then what happens is over time they develop a rhythm that works for both of them. The employer tries to do the right thing by giving as much stability and regularity of hours as they can, and tries to roster a few weeks in advance so their employee can plan accordingly. They might throw in a bonus every so often, and some even go above and beyond in giving some paid days off between Christmas a New Year. They may even offer the employee to go part-time at some point but the employee decides they like the flexibility and extra pay as a casual.
In return, the employee tries to do the right thing by being available as much as possible, because ultimately they want the income and good, enjoyable work with an employer who cares is great to have.
And so everyone is happy. Until they’re not …
Unfortunately working relationships don’t always stay strong or end well. And if the employee feels disgruntled and decides they would like to explore entitles to now claim permanent status, all the previous good intentions by both parties can, unfortunately, become redundant.
The recent Federal Court decision shows that at that point it comes down to how the working arrangement ‘looks’. All the things the business did to be a good employer comes back to bite them. Their attempts to give a casual as much stability and regularity as they could now contributes to determining the employee was not casual. Any days of paid leave they generously offered similarly make it look like it wasn’t a casual engagement. The rosters given a few weeks in advance to allow the employee to plan are taken as a sign of security of work – again, not indicative of a casual.
Sadly, the way it looks at the moment, it is these well-meaning business owners who may suffer the consequences of the recent court cases. And at the moment they are questioning whether it is worth them employing casuals. The negative flow on effect for employers and employees alike has the potential to be significant.
Despite all of this, we encourage our clients to continue to put the relationship first, and do what they believe to be the right thing by both their business and their employees. They also need to be smart and safe in their business practices. If you need assistance with this, please contact us to talk about what measures you can and should put in place to effectively engage and manage casuals.