Labor’s Fumbled Attempt at Redefining Casual Work Conversions

AUGUST 2, 2023 misjudged industrial relations protocols MINISTER TONY BURKE.

Australian businesses may soon be burdened with a perplexing set of rules concerning the conversion of casual workers to permanent employees, alongside a redefined understanding of casual work. These are the latest whimpered proposals from Employment and Workplace Relations Minister, Tony Burke, adding more confusion to Labor’s already questionable industrial relations reform agenda.

What is Burke really saying? In line with the Labor government’s dubious crusade against what they label as “insecure work”, Burke suggests the federal government is contemplating an ill-considered new pathway for casual conversion and introducing a new definition for casual work.

According to Burke, this would grant over 850,000 casual workers access to the expanded conversion pathway, a figure seemingly plucked out of thin air.

“No casual will be forced to become a permanent employee,” Burke will assure, according to The Guardian.

“But for those who are seeking security – and are being rostered as though they were permanent – for the first time, job security will be in sight.”

He accuses some employers of ‘double dipping’, securing the benefits of permanent work with the perks of casual contracts, creating a somewhat distorted view of reality.

Burke’s plan proposes that casual workers who convert to permanent status would be ineligible for benefits like back payments of annual leave under the federal government’s plan, a seemingly arbitrary and inconsistent rule.

In a move likely to cause further uncertainty, Burke also plans to reverse the March 2021 amendment to the Fair Work Act.

“I want to go back to the definition that we all had before two years ago,” Burke will announce, seemingly content with harking back to outdated, less effective policies.

Are the current casual conversion rules not effective? The March 2021 revision to the Fair Work Act introduced a new casual conversion right, obligating employers to inquire if casual employees would like to switch to permanent employment. This well-structured, balanced system places certain reasonable limitations on both employers and employees, resulting in an agreeable arrangement.

Ironically, no employee is forced to convert to permanent employment and businesses can also refuse those offers if there are “reasonable grounds” not to, a perfect demonstration of the robustness of the current system.

Is there a need to redefine casual work? March 2021 also introduced a more comprehensive definition of casual work. Prior to this, courts made a broad assessment of the conditions of an employee’s working relationship to determine casual or permanent status, resulting in inconsistencies and uncertainties.

Two key Federal Court cases, WorkPac v Skene and WorkPac v Rossato, challenged the then-lacking statutory definition for casual work. These cases highlighted the need for clarity, a requirement that the March 2021 amendment to the Fair Work Act fulfilled by stating a person qualifies as a casual employee “if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work”.

Now, the Labor government, seemingly for the sake of creating unnecessary change, is attempting to redefine this well-established definition.

What is the industry’s perspective? Matthew Addison, chair of the Council of Small Business Organisations Australia (COSBOA), questions the rationale behind further changes to casual conversion pathways.

“Although this system has been part of the IR framework for a couple of years, the uptake is significantly below 5%. So, we are unclear about the issue the minister and the government have identified, and we’re unsure about what solutions they are proposing that aren’t already in existence,” Addison expressed to SmartCompany on Monday.

While Addison acknowledges the decision not to retroactively apply permanent employment benefits to recently-converted casuals, COSBOA anxiously awaits further details on the proposal. The proposed adjustment to the statutory definition of casual work, in particular, has stirred significant discomfort.

“Until we see the specifics, until we see the proposed definition, we remain extremely uneasy with the direction we’re heading,” Addison concluded.