The employer community is putting on quite a show about a recent Federal Court decision that a casual labour hire coal miner employed full-time for years was not really a casual under the law and was therefore owed some paid leave.
They claim the WorkPac v Skene decision is a disaster due to the vast extent to which Australian businesses use casuals in regular, on-going work, that will lead to a multi-billion dollar outbreak of worker ‘double-dipping’ on casual loadings and paid leave.
Now it has emerged that WorkPac, the labour hire company at the heart of this case, is lobbying politicians to support legislative change negating the decision because it would be unfair on small to medium businesses.
A quick look at this case tells us this is very much a story about exploitation of casual labour by some of the biggest, richest, multinational companies operating in Australia – in particular, the big mining companies.
The companies WorkPac supplies labour to include global mining giants BHP, Glencore and AngloAmerican.
It’s no surprise that this decision exposing the blatant, systematic misuse of casuals has come out of coal mining.
Paul Skene, the mineworker at the centre of this case, worked at a Rio Tinto coal mine in Central Queensland. These are no mum-and-dad outfits.
Long-term casual work is unfortunately the harsh reality for a large and growing number of Australian workers. But it’s no surprise that this decision exposing the blatant, systematic misuse of casuals has come out of coal mining.
Mining companies have been ruthless pioneers of the ‘permanent casual’ work model. In the past few years, the industry has seen exponential growth in the use of casual workers supplied by third party labour firms. Across the NSW coalfields, typically up to half of workers are not directly employed by the mine operator, but by labour hire contractors.
The jobs filled by casual labour hire workers aren’t casual at all. In fact, casual coal mineworkers perform the same work on the same rosters as permanent employees over periods of years.
Like Paul Skene, they are often provided rosters that are set 12 months or more in advance and are required to attend every shift, day in and day out.
But instead of being financially compensated, casual mineworkers typically earn hourly rates 30 per cent less than permanents - and that’s including the casual loading that employers claim makes it all worthwhile.
Casuals get no paid holidays or sick leave and they live with the constant threat of being ‘stood down’ or ‘let go’ at any time, like if it’s raining, or they raise a safety concern or ask for a holiday. There is precisely zero benefit and significant cost to mineworkers of being employed casually.
While labour hire operators like WorkPac are the direct employers of casual workers in mining, this model is actively driven by the big mining companies. For them, it is cheaper and more convenient to have a divided and insecure workforce.
Employer groups’ melodramatic claims about the impact on small businesses seeks to distract from the exploitative labour hire business model that has been exposed and further bolster their rights to unimpeded access to a casualised workforce.
The WorkPac v Skene decision was based on circumstances that are extremely common in coal mining, where casual workers are rostered a year in advance, work full-time regular hours and are indistinguishable from permanents.
While employer groups’ analysis has shown up their over-reliance on casual employment, these circumstances aren’t present in many other industries and the broader relevance of the decision is still to be determined.
Using it as an excuse to seek to further erode access to permanent and predictable work – with brainwaves like the ‘perma-flexi’ contract – for workers in industries such as hospitality, aged care and retail is cynical and opportunistic.
We have a better idea. If employers are concerned about workers claiming both a casual loading and paid leave there is a simple solution: employ people correctly.
There is no capacity to “double dip” if an employee is correctly categorised.
Our political representatives should not underestimate the strength of feeling in the community about casualisation.
As to the famous ‘pub test’ they are so fond of, I dare them to go to a pub in the Hunter Valley and to convince the patrons that the ‘permanent casual’ mode of employment is good for workers and families. However, I wouldn’t recommend it, for safety reasons.