Casual employment has been a flexible and commercial way to utilise a workforce in industries with project work or natural ebbs and flows. The recent WorkPac cases of Rossato and Skene, the aftershock of COVID-19, a post-JobKeeper landscape and high-profile political debate from various stakeholders has led to, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Act) – effective since 27 March 2021.

The purpose of the Fair Work Amendment Act 

The aim of the Act is to improve the operation and usability of Australia’s national industrial relations system. The Act has been introduced in the context of, and is intended to respond to, Australia’s ongoing economic recovery in the wake of the COVID-19 pandemic. The Act’s proposed reforms primarily relate to:

• Casual employment
• Flexibility under modern awards for industries impacted by COVID-19
• The making and approval of enterprise bargaining agreements
• Greenfield agreements and major projects
• Compliance and enforcement (including in relation to wage theft).

The 3 major changes for casual employment

The Act will require some onerous obligations including:

1. Introducing the Casual Employment Information Statement
2. Redefining casual employment
3. Creating a pathway to transition a casual employee to permanent employment.

Change 1: Casual employment information statement

The Casual Employment Information Statement is similar to the existing Fair Work Information Statement which must be provided to all employees covered by the National Employment Standards. The Casual Employee Information Statement must also be provided to all casual employees including existing employees and contains information about:

• The definition of a casual employee
• When an employer has to offer a casual employee conversion to permanent employment
• When a casual employee can request a conversion
• Other information related to casual employment.

For small business employers (those with less than 15 employees) the Casual Employment Information Statement must be provided as soon as possible. For all other employers, this can be provided after 27 September 2021.

Change 2: The definition of “casual employee”

Before the adoption of the Act, the Fair Work Act 2009 (Cth) (FWA) contained no definition of casual employment. The exception to this was definition of a ‘long-term casual employee’.

The Act, section 15A provides a clearer definition to casual employment, which states:

A person is a casual employee of an employer if:

• an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
• the person accepts the offer on that basis; and
• the person is an employee as a result of that acceptance.

Within the above provision, we view there is a clear attempt to craft a definition of casual employment as any employment where there is no commitment to ongoing work. Further, the Act set out considerations that will allow the Fair Work Commission to put themselves in the shoes of the parties to determine if a casual employment relationship was created.

The objective question that comes from this provision and will likely be later assessed by the Fair Work Commission is what forms the basis of ‘no firm advance commitment’ to ongoing employment.

Change 3: Casual conversion

The Act provides for ‘Employee requests’ within section 66F of the Act, which states:

• A casual employee may make a request of an employer under this section if:
• the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; and
• the employee has, in the period of 6 months ending the day the request is given, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full‑time employee or a part‑time employee (as the case may be).

Previously, only Modern Awards allowed for conversion requests. The result of this provision is that the conversion request has now been codified and is available to all National System Employees that are covered by the FWA.

Importantly, section 66B of the Act provides that an employer must make an offer to a casual employee for conversion if they have been employed for a period of 12 months and have had a regular pattern of hours for the previous 6 months. There are exceptions to the above requirement which are based on the reasonableness of the request.

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As Australia’s COVID-19 vaccine roll-out strategy ramps up across the nation, 70% of casual workers have indicated that they would be more likely to receive the vaccine if it was recommended by their employer.

The research by workforce management solutions provider Humanforce also revealed that the vast majority of casual workers – 71% – think that employers have a right to ask their workers to be vaccinated.

However, only 30% of these casual staff worked for employers who had said being vaccinated for COVID-19 would be a requirement to secure shifts in the future.

“Given the scale of disruption the pandemic has caused for so many workplaces across Australia, there was a lot of talk even prior to the vaccine arriving in Australia and being rolled out, about whether workplaces would make it mandatory for staff to be vaccinated,” said  Clayton Pyne, founder and managing director of Humanforce. “Many employer groups have publicly advocated for businesses to be able to direct staff towards being vaccinated to help avoid future outbreaks and workplace disruptions, and most casual workers are clearly supportive of this, which is a positive finding for safe workplaces and business continuity in 2021.”

More than two-thirds of casual workers said they had been concerned about their health in the workplace throughout the COVID-19 period. These concerns were likely the reason the same number of workers said they would get the vaccine when it was available to them, while 24% were still undecided and 12% said they did not intend to get the vaccine.

Interestingly, 79% of casual workers indicated that they would prefer it if their colleagues were vaccinated, which was higher than the number who said they would get the COVID-19 vaccine themselves. Two-thirds of casual workers were also supportive of their employers requiring customers and visitors to the workplace to show they had been vaccinated.

“It’s very apparent that casual workers are concerned about COVID-19 and their health at work, and that they expect their employers to step in and take charge of protecting them and others while in the workplace,” added Pyne. “That’s why employers must now ensure they are prioritising the fine-tuning of their organisation’s position on COVID-19 vaccines. Engaging casual workers early on is vital in clearly communicating with them your organisation’s position, as well as expectations of them and others when it comes to the COVID-19 vaccine. It’s also important to have the right systems in place to effectively communicate with staff and track staff vaccination information, should it be required by your organisation.”

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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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Sydney, 18 June 2020: Research from Humanforce, a Sydney based global provider of workforce management solutions, has found that nearly one-third of Australia’s casual workers have reported feeling lonely in the workplace, leading to lower employee engagement, and lasting customer experience consequences.

More than 60% of casual workers surveyed said loneliness at work stemmed from the fact that they worked solo or with few colleagues, while 43% also said non-traditional work hours leads to less social interactions with others outside of work hours and 36% said there were limited interactions with management and the company.

“With many of us having been asked to work from home full-time due to COVID-19, worker loneliness has become a big challenge for almost all types of workers,” said Bruce Mackenzie, Managing Director and Founder, Humanforce. “However, this is not a new issue for the 25% of casual workers that make up Australia’s casual workforce. Casual workers have always been more likely to work alone or with a small number of colleagues who frequently change, and on an unfixed and non-traditional schedule, which means they are at higher risk of loneliness.”

Survey respondents said the flow on effect of loneliness was that 57% of casual workers had reduced motivation at work, 53% experienced lower job satisfaction and 41% faced mental health issues.

“Our research shows that lonely casual workers face a range of challenges that undermine their ability to be fully engaged in their roles at work,” added Bruce. “Worker engagement is crucial to delivering the best customer experiences. And with those in the retail and hospitality industries currently facing an incredibly challenging business environment, customer experience is of the utmost importance in achieving ongoing sales and consumer loyalty.”

More than half of casual workers surveyed said loneliness could be reduced through regular communication with casual workers from managers and the company, while an additional 40% said a casual worker reward program that recognises and values the work of casual employees and 39% said giving casual workers more control of the days/hours/shifts they work, would help.

“More than half of casual workers surveyed said loneliness could be reduced through regular communication with casual workers from managers and the company.”

“To avoid loneliness and a lack of engagement, casual workers clearly need a higher level of communication, to receive more recognition and to be able to take control of their work days and shifts,” said Bruce. “Unlike full-time employees, the issue of worker loneliness won’t disappear for casual workers when COVID-19 restrictions are eased. Therefore, casual worker employers must develop long-term approaches to helping keep employees connected, valued and motivated at work, in order to achieve the best results for the businesses now and into the future.”

Advanced digital workplace engagement solutions are available that help employers leverage apps and digital tools that streamline two-way communication with casual workers and allow employees to take charge of selecting and changing their shifts, as well as rate their shifts so managers can monitor worker wellbeing.

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. For more information: www.humanforce.com

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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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Sydney, 29 October 2019: Humanforce, a Sydney based global provider of workforce management solutions, has found that Australian employers could be doing much more to engage their casual workforces.

In a survey conducted by Humanforce it was revealed that only 42 per cent of Australian casual employees have felt engaged in their work. 

Humanforce Founder and MD, Bruce Mackenzie, said the survey demonstrated employers could be doing a lot more to engage and motivate their casual workforce. 

“We know that engaged employees take significantly less days off and are much more productive as it’s been proven time and time again,” said Bruce. “While many employers have recognised this by putting strategies in place for their permanent employees, many are overlooking the importance of engagement when it comes to their casual employees, which is not sustainable considering Australia has one of the highest numbers of casual workers in the world.”

The OECD Employment Outlook 2019 showed that 25 per cent of workers in Australia are casual, of which more than half report having no guaranteed hours. The Humanforce survey reflected the fact that guaranteed hours is a challenge for many casual workers, with 60 per cent of respondents saying guaranteed shifts was the most important driver in selecting a casual employer.

Yet, 75 per cent of respondents also stated that flexibility of days and hours, as well as fitting around family commitments (43 per cent) were the main attractions of casual work, illustrating that while casual workers might want the same number of shifts each week, employers may need to be open to these being changeable rather than standardised week to week.

There are a number of ways in which employers can better engage casual workers and create a sense of community, with the below showing the percentage of survey respondents who view these actions as important to them:

• A positive and fun work culture – 54% 
• Wage incentives – 52% 
• Group training and learning opportunities – 52%
• Employee rewards – 45% 
• An employer that shows an interest in you – 42% 

Casual work is often subject to high turnover, and as the survey found, many casual workers (40%) move to permanent work. Therefore, employers need to do everything they can to build staff loyalty and reduce turnover when faced with a limited pool of available talent.

Workforce management solutions can help employers to better engage with casual employees by providing a real-time view of all employees that helps to measure engagement and offer employee rewards, as well as facilitate ongoing communications such as employee feedback, events and training opportunities. 

Technologies such as workforce management solutions are something that 74 per cent of survey respondents would be open to their employer using. 

Find out more about Humanforce.

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