Lets’ start this conversation with a few questions that I’m sure many business owners and leaders in the staffing industry are asking themselves at the moment: Is that a casual worker we just on-hired? Are we sure they are a casual worker? Or are they a permanent employee, with full leave and other entitlements? The casual rate they are receiving could become awfully expensive later if they are also entitled to annual leave, long service leave, redundancy pay and termination notice.  Not to mention the casual loading you’ve paid them.

Well guess what?  You do not get to offset that against a not-casual-worker’s claim for entitlements.  Congratulations on your new full-time employee that you generously paid at a casual rate!

Since 20 May 2020, this is exactly the risk you take on every casual hire and it transforms the entire staffing and labour hire industry and the broader Australian business economy.

20 May 2020, of course, was when the “Rossato Decision” was handed down by Justices Bromberg, White & Wheelahan, which shook the trees quite literally.  The ruling was that Mr Rossato was not a casual employee, even though he was:

• hired under 6 consecutive contracts that explicitly stated he was hired as a casual employee
• covered by an EBA that covers casual workers and grants a 25% casual loading
• the loading is specifically in lieu of entitlements (leave, redundancy pay & termination notice)
• was paid at a flat rate, incorporating the casual loading, which was higher than the minimum required by the EBA.

So it walks and talks like a casual, is hired and paid as a casual… but now has the entitlements of a full-time permanent worker.

If it sounds like a nightmare, you’re on the right track (because it’s not as if the Modern Award system isn’t already tricky enough!)

Welcome to your new status quo.

The ‘Rossato’ decision is not going to go away, nor is it likely to be changed – because it is a confirmation of a previous decision. That makes it the new status quo, as established in WorkPac -v- Skene (“Skene”).

Skene’s ruling was that just because you identify, contract and pay someone as casual, doesn’t mean entitlements don’t apply. Under Skene, if an employee can show working arrangements that demonstrate a firm advance commitment as to:

1. the duration of employment and/or the days and hours they are scheduled to work; and

2. that the work scheduling/rostering is regular and systematicThen they may still be considered as having those entitlements like a full-time permanent employee.

Why did the ‘Rosatto’ decision go against casual worker entitlements for casual hires?

There were a few primary factors in the decision, including:

• Rosters were provided to Rossato months in advance, which demonstrated the employer’s advance agreement that he would be employed in a stable, predictable and indefinite manner
• Although he was paid a flat rate higher than the EBA required, the exact amount he was paid due to the “casual” nature of his employment was not specified.
• There was no way to conclude that Rossato’s rate wasn’t simply the going market rate at the time.

His contract stated that he received his rate in lieu of entitlements, instead of stating that the rate was in payment for or in satisfaction of entitlements

What can you do to avoid this scenario?

You could not hire casual staff at all. That’s not a wonderful solution. At least, in that way, you’re paying for what you get.

In specific industries, where you know your clients are going to want regular candidates at regular times on an ongoing basis you will need to consider the regularity that candidates are engaged.  For example, changing rosters and patterns of work.

What is an absolute imperative, is that the information provided to your candidates needs to be noticeably clearer on how they are engaged and how their entitlements are being dispersed to them?

Alternatively, you might simply accept that hiring casuals is a gamble that may result in a hidden balloon payment of leave, redundancy payout and notice requirements.

If you’re looking for a more reasonable and economically sane strategy, you can try ratescalc.com to protect your business and business process against such outcomes. https://www.ratescalc.com/ has a full suite of calculators, automated document production, advanced APIs and integrations with many recruitment systems.

That means, no matter what the ‘Fair Work Commission’ decides or what happens in the future, your employment operations will remain fair and equitable. Even if it is decided that you have a full- time permanent employee after the fact, the casual loading is itemised and specifically paid as payment for entitlements not received.

So, that means that your hires can receive a casual’s rate or a permanent staff member’s entitlement which is clear but never both for the same work done.

We cannot think of anything fairer to all parties than that!

(If you’d like to read a little more about this landmark case, check out this article from IRIQ which provides an excellent brief summary.)

Disclaimer: This article is no substitute for legal advice and does not take into account the particulars of your individual situation. Whilst Ratescalc offers many features to protect against industry risk, your work process and daily practices will always be the most critical factor in risk mitigation and avoidance. The team at ratescalc can guide your organisation on how best to enable your business through the use of its proprietary software. Formal notices, contracts and schedules issued to your candidates / employees on behalf of your organisation should be reviewed by your trusted legal advisors.

Col has worked in the recruitment industry for nearly 30 years with 8 years specifically in technology consulting.  He has worked with boutique, national and global organisations gaining invaluable experience and life lessons to share and enable my clients with these unique insights. 

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Eighty-three per cent of casual workers in Australia prefer working for companies offering automated workplace technologies, research from Humanforce, a Sydney-based global provider of workforce management solutions, has found.

A further 22% of casual workers also said they would consider leaving a company if it did not offer technology that helped them to manage their work.

“Offering casual workers the technological tools that they clearly want, and that will help them to succeed in their roles, will show them that they are valued employees that a company is willing to invest in,” said Clayton Pyne, CEO of Humanforce. “On top of feeling valued, use of technology will make the day-to-day working lives of casual workers much easier and increase the chances of them wanting to stay in a role longer.”

Casual worker respondents said the work tasks that they thought held the most value in being automated by technology included accepting and swapping shifts (48%), communication around work availability (46%), easier and faster app-based communication (45%) and online rosters and timesheets (43%).

“There is a common misconception out there that casual workers don’t stay in one job or at one company for very long, and therefore they don’t require the same access to technology or supports as full-time employees do. Flying in the face of this, our research actually found that the majority of casual workers stayed in their casual jobs for longer time periods.”

The largest group of casual workers – 29% – said they had stayed in the one job for over five years, while a further 20% had stayed two to five years, followed by another 18% for over 12 months. At the shorter-term end of the scale, only 2.5% of casual workers had only stayed at one job for less than a month, 5.7% for less than three months and 13% less than six months.

“Casual workers are at the front-line of customer service, acting as the face of an organisation to the public. Engaged, long-term casual employees can better serve the public through a greater company, product and service knowledge. Having the right workplace technologies in place to support the work of casual employees should be a focus for all companies across Australia, especially now at a time when customer loyalty is challenged and positive customer service interactions have never been more important.”

Using apps and digital tools, advanced workplace management solutions automate a range of tasks that are commonly required of casual workers. These include employee availability, shift management, communication with management and teams, online rosters and timesheets, leave management and onboarding.

Casual workers said that they would gain most benefit from these automated technologies if they received training from their company (51%) or online (46%).

Methodology

Humanforce surveyed 503 Australian part-time and casual workers in April 2020 using a research platform.

Humanforce is a global provider of workforce management solutions for companies who need flexibility to manage complex workforces. Companies use Humanforce to manage everything from time and attendance, employee rostering, onboarding and availability. Humanforce has strong partnerships with industry leading payroll providers, with over 100 integrations and enable customer employees in over 9000 locations globally. Humanforce was founded in Sydney in 2002, and today has offices across Australia, New Zealand, Singapore and the UK. 

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While newly legislated government policies, such as JobKeeper, have been a lifeline to some employers, not all casual workers qualify for these initiatives.

So how are employers and casual workers being impacted by COVID-19, and what things can businesses do to ensure they stay connected with their casual workers and maintain transparency and stability within their business during an incredibly challenging time?

The impact of COVID-19 on casual worker employers

Industries that employ large numbers of casual workers such as hospitality, retail, tourism, and events saw their revenues disappear overnight due to travel restrictions and social distancing measures, with many having to cut back casual worker numbers or close operations completely. However, casual workers in industries such as fast-moving consumer goods (FMCG), logistics providers and distribution centres have seen a large surge in demand, which has put a heavy strain on employers to rapidly onboard new team members to meet customer demand. Many of these businesses have had to increase their casual worker levels and have looked to employees who have been stood down by other industries.

Pleasingly, there are also examples of businesses that employ a casual workforce that have been able to pivot their operations to meet needs that have arisen due to COVID-19, such as fashion brands manufacturing personal protective equipment (PPE) for the medical field or hotels, such as the Pan Pacific Hotel in Perth offering rooms to house the homeless.

Above all, though, the impact on casual workers has been widespread. Almost three quarters of casual workers report they are suffering financially, the Humanforce survey also found.

The fact is, many casual jobs in Australia are reliant on cafes, restaurants, bars, physical retail stores, event venues and stadiums being open. If these businesses aren’t open and operating at anything near normal levels, then there is no role for many casual workers, because their jobs must be performed on site, not remotely.

The fact that casual work is heavily reliant on being able to work on-site was reflected in the survey, with 68% of casual workers saying their job could not be undertaken remotely or working from home.

Stay active and connected with your employees

Keeping your brand active and staying connected with your casual employees as well as your customers is essential to maintaining business credibility. Inactiveness is the riskiest response to the uncertainties of an economic disruption. If the situation has left you with a dwindling number of casual staff compared to before, you need to try and keep these people on your radar by staying engaged with them, as you will need these casual workers when business starts to ramp up again.

Workplace engagement was also highlighted as being a key concern to casual workers in Humanforce’s survey. Casual workers whose employment had been interrupted by COVID-19 said staying in touch with the company for when it reopened (18%) and maintaining relationships with co-workers (17%) were primary concerns.

By keeping connected with your valued casual workers you can help to communicate with your staff any necessary changes in response to COVID-19, how you might be able to help them in the interim and to reassure them that as soon as things return to normal you will need them again. This means implementing an effective and regular communications strategy to keep your casual worker network informed of any updates or changes.

Monitoring casual worker wellbeing

COVID-19 is having a big impact on people’s health – physically and mentally – and casual workers, with their irregular work patterns and greater lack of security compared to full-time staff, are especially vulnerable. It is now more important than ever before that employers are able to keep connected with all casual workers (including any workers temporarily stood-down) and arrange regular check-ins on their wellbeing and providing support where possible.  For those casual workers still employed, simple ‘shift rating’ tools can help staff flag issues and personal stresses to their managers in a digital and non-intrusive way.

Keeping casual workers engaged using technology

The research also showed that employers are more likely to rely on more basic and traditional methods of communication with casual workers, compared with the more advanced digital engagement tools available to full-time employees. Survey respondents indicated that a low number of employers communicated with them via messaging apps (24%) or video conferencing (24%), instead choosing to maintain contact with employees using email (65%) or phone calls (56%) and text message (42%).

Using mobile technology for communications is the most useful tool for ensuring that your casual workers stay connected with your company during this period, so that when business begins to return to normal again you have an engaged team ready to start work. Technology can also help your business to stand down staff with transparency and compliance, as well as monitor the wellbeing of your casual workers.

Casual worker engagement is critical for Australian businesses looking to maintain a level of business continuity through the COVID-19 period, as without a motivated, connected workforce, achieving sales and fostering positive customer service experiences becomes more challenging.

Australian businesses also need casual workers to assist in their recovery from COVID-19 lockdowns. As businesses re-open following the easing of lockdown restrictions, those employers who maintained communication with workers and kept them connected with the business will find themselves best placed to benefit.

Bruce Mackenzie is the Founder and Managing Director of Humanforce– a leading global workforce management solution. Humanforce operates through seven global offices and today half  a million people will clock into work on their system. Bruce’s success stems from his drive to make work exceptional.

Beyond Humanforce, Bruce is President of the North Sydney Chamber of Commerce, President of the East Sydney RAC, Vice President of Australian Business Industrial, Member of Sydney First and a State Councillor of NSWBC.  

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