SA casual clerks win landmark right to permanency

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SA casual clerks win landmark right to permanency

Up to 15,000 South Australian clerical employees will be able to convert from casual to permanent status after an historic decision in the South Australian Industrial Relations Commission this week.

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Up to 15,000 South Australian clerical employees will be able to convert from casual to permanent status after an historic decision in the South Australian Industrial Relations Commission this week.

The decision, handed down by retiring Deputy President Greg Stevens, allows that after 12 months ongoing and regular employment, casuals may become permanent if they choose.

The Australian Services Union had sought a number of changes to the Clerks (SA) Award, including:

  • Redefining a casual as an hourly paid employee, working on a spasmodic basis with no expectation of ongoing employment. Anyone defined differently would be defined as a full-time or part-time employee.
  • A 20% loading on part-timers’ hourly rates in lieu of paid annual, sick, bereavement and carers’ leave, and payment for public holidays not worked, if the employee chooses.
  • Increasing part-timers hours from a maximum of 30 hours to 37.5 hours (only 30 minutes less than full-time hours).

The final order, which knocked back the definition change and additional loading, is a big win for job security in the wider sense, which Australian unions are pursuing on a number of fronts, although the Commission cautioned that permanency was not in itself a guarantee of job security.

It means workers, who in many cases had been working for years as casuals, will now be entitled to paid leave and other award entitlements like notice on termination and severance pay, parental leave, consultation and the like.

The union said as casual employees were mainly women, the categorisation had been indirectly discriminatory to female workers.

The major employer group appearing in the case, Business SA (formerly the SA Employers’ Chamber of Commerce and Industry), told the Commission the question of whether casualisation of the workforce was a bad thing, was too big for it to deal with. It said the question should be left to state or federal governments, and not dealt with through a single award.

Business SA also brought up the question of labour hire firms, saying contracts between the supplier and host firms would have to be altered, with great difficulty.

Employer witnesses said casuals preferred bigger pay packets to sharing the conditions of their permanent colleagues. Others said the ASU was attempting to dictate and regulate what went on at individual workplaces, taking away employer flexibility.

In his decision, handed down on 20 July, DP Stevens said the Clerks (SA) Award was 'one of the more important and greater used' awards of the Commission. He said despite their trenchant opposition to the ASU claim, the employers had not demonstrated why they used casual employment over permanent, and why their businesses would be harder to run if the union claim was granted. True casual employment in the industry was the exception rather than the rule, he said.

While he acknowledged that granting even part of the union’s claim would 'cut across the trend' in most industries to increase levels of casual employment, DP Stevens said that trend was largely 'unregulated and unchecked'.

Only the NSW and Queensland Governments were trying to regulate some aspects of casual employment, and Queensland unions (see previous story) and the federal metalworkers’ union were trying to make it more expensive for employers to employ casuals on a wholesale basis.

He said he didn’t accept employer claims that the SA IRC, as 'only a very small minnow in a very large pond', should walk away from the claim, on the basis that it was too hard or should be left to others to judge.

Neither did he accept that employers should have 'an utterly unrestricted and unrestrained right to employ and discharge such casual employees as they see fit'. He had previously told parties the fact that the 'vast majority' of casuals had little or no bargaining power was 'unjust and inequitable'.

DP Stevens said women employed as casuals under the award 'may suffer a form of indirect discrimination' insofar as they were unable to access permanent employment. Their inability to access maternity leave and carers’ leave provisions by virtue of their casual status went against the objects of the Act, which called for the prevention and elimination of discrimination.

He also granted the increase in part-time hours to 37.5 (while keeping the existing minimum of 7.6).

Employees who do not change their casual status after 12 months could do so at any later time, with four weeks notice.

The changes would apply to labour hire firms as well, as the evidence showed the impact would not be heavy in that area. The order will be made from 1 August this year, which means from 1 August 20001 employees who have been casuals will be able to convert.

The ASU said it was thrilled that the Commission had addressed the issue of 'so-called casuals, who aren’t at all', and acknowledged the discrimination that existed.

But state assistant secretary Anne McEwen told WorkplaceInfo the core issue was that employees now had choice over their employment status, and related entitlements.

She said the ASU would now be trying to extend the principles of this award into other common-rule clerks awards, affecting several thousand workers in the retail, hospitality and credit union sectors. The union would also hold talks with other unions with high levels of casual workers as members, like the Liquor, Hospitality and Miscellaneous Workers’ Union.

She also flagged that the union would next look at casual rates of pay and part-timer hours.

Business SA was unavailable for comment.

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