At the height of the 2020 COVID-19 outbreaks we came to better understand insecure work as a disease vector and an immediate danger. However, these employment conditions constitute an enduring threat to our well-being that the federal government seeks to entrench and expand via the Fair Work Act (Support Australia’s Jobs and Economic Recovery) Bill. Despite its name, the bill should be partly understood as a reaction to recent Federal Court decisions pertaining to leave entitlements for casual workers. Its objective is not economic recovery but the further destabilisation of worker power.
As there is no statutory definition of casual work, its determination flows from court decisions that take an employee’s work patterns into consideration. The new bill aims to establish a definition that overrides this by relying entirely on whether the employer made a firm advance commitment to continuing and indefinite work at the time the employee was appointed. Employers will thus be able deny workers’ rights to ongoing employment and entitlements regardless of the regularity of work or the employment period. While the proposed reforms include a limited ‘right’ to convert to a permanent contract, this is practically unenforceable as employers can avoid it on ‘reasonable grounds’, an absurdly broad term. Furthermore, there is little to prevent the employer from ending a worker’s employment on the day they request conversion. In short, it puts all the power to determine the employment relationship and its outcomes in the hands of employers.
Unsubstantiated casual employment
Recent research reveals the deceptive nature of casual work. Despite casual jobs making up 25.1 per cent of the workforce, only 6 per cent of these jobs qualify as truly flexible labour. Instead, most people who hold them fit the definition of what David Peetz has called ‘unsubstantiated casuals’. These are workers who have been with their employer for more than one year, with reasonable expectations that they will continue to be with their employer in twelve months’ time, and who have regular pay and hours. The defining feature of their work is not flexibility but low power. The outcomes of such disempowerment include low wage growth, various forms of abuse, safety risks and negative public-health consequences. As we have argued this form of work is about control.
Building on these arguments, a compelling case study of the dynamics of casualisation can be found in the Vocational Education and Training (VET) and English-language intensive courses for overseas students (ELICOS) sectors. ELICOS teachers are typically employed on ‘casual’ contracts with no entitlements to annual leave, personal leave or redundancy. It is common for these teachers to remain with the same employer for years. Due to the nature of intensive English-language courses, which must include twenty contact hours per week, teachers also have regular and systematic work schedules. There is a strong expectation that if they have been charged with delivering a particular course, they will continue to do so year-round. As part of our research for this article, we interviewed a number of union and non-union teachers.* We have included their testimony to illustrate the experience of working in a sector characterised by insecurity and in which converting to a permanent contract is very difficult.
I did try to convert to permanent after two years of working at the college. I asked my immediate manager, who said it wasn’t his decision but that he would bring it up with the higher-ups. When I tried to chase up the issue, the answer was always that they hadn’t decided yet and to ask again later. Eventually I realised that it was going nowhere, so I just gave up on it.—Sarah (casual for over ten years)
Insecure work and wages
Several class actions have been filed following the recent Federal Court WorkPac v Skene and WorkPac v Rossato cases, and the business lobby is ringing alarm bells about ‘double dipping’. This amounts to accusations that workers who have been paid a casual loading may unfairly claim additional entitlements to the tune of $39 billion. This is a disingenuous interpretation given that the 25-per-cent casual loading is largely a myth.
While some analyses demonstrate that workers may earn a modest 4- to –5-per-cent premium, others suggest that casual employees take a significant wage penalty over time. Many do not receive any loading at all. Yet the majority are dependent on a single employer for years. By deliberately misclassifying these workers as casuals, employers have been able to satisfy their ongoing labour needs, benefit from wage penalties, and withhold entitlements at the same time. Who should be regarded as ‘double dipping’ under such circumstances? Employers in ELICOS are no exception, with wage theft, sham contracting, coercion and long-term penalties typifying workers’ experiences.
I first worked in ELICOS as a ‘contractor’ being paid a flat rate at a small college in Melbourne. It was stressful and difficult to manage the superannuation and tax obligations that come with being on a contract, and I felt that my precarious employment status prevented me from challenging my employer.—Julie (casual for two years)
In practice the flexibility isn’t really there. At my college we have a teaching schedule based on four-week blocks. As a general rule, if we request leave (unpaid) for some of that time our employer forces us to take the entire block off, meaning that we are penalised one month’s wages.—Hannah (casual for three years)
With even the governor of the Reserve Bank advocating for workers to demand more money, we must acknowledge that strong collective bargaining effectively motivates wage growth. Insecure work allows for the tacit threat of unemployment, damaging union density and weakening the bargaining position of workers. It thus affords employers greater control over wage-setting processes, including the use of non-union agreements to suppress wage growth and various forms of underpayment. These practices are common in heavily casualised sectors like ELICOS and have serious consequences for workers.
I worked for the same organisation for over ten years without any leave entitlements. It was only after joining the union in 2019 that I discovered I had been underpaid for over seven years. I had trusted my employer to update my pay in accordance with the award, but instead I had to fight for over a year to get back more than $20,000.—Sarah (casual for over ten years)
I have always felt super precarious. Student surveys can mean the end of your job. We are disposable… They can discard you and hire someone else.—Julie (casual for two years)
The proposed changes to our industrial-relations laws are a push to entrench this systematized theft of workers’ incomes. They are part of a well-documented history of employers using insecure, non-standard employment to suppress wages and violate awards. That employers may be on the hook for a $39-billion restitution for doing so is a crisis of their own making. Yet it is not just about the money. There are less obvious but no less serious negative outcomes that result from disempowering workers.
Industrial relations, well-being and discrimination
Industrial relations frame our working lives. As they shift the balance of power, they determine how workers interact with their employers, navigate workplaces and relate to each other. As such, they shape the social terrain in which serious dangers arise, including overwork, physical and mental health risks, discrimination, and bullying. The question of changing the Fair Work Act is therefore also a question of how we prevent and resolve these problems across the workforce.
By maintaining downward pressure on wages, there is a real risk that the proposed changes may intensify a trend towards overwork as more and more people hold multiple jobs. Although working multiple jobs can in certain situations be healthy and constructive, when financial constraints and insecurity constitute the most significant motivations for doing so there is good evidence to suggest that it is harmful. Workers frequently take on multiple jobs to mitigate poor wages and as a hedge against insecurity. Millions of people—the majority of them women—already hold multiple jobs in Australia, and this trend is increasing.
Serious health problems result from overwork. These include cardiovascular disease, musculoskeletal disorders and diabetes. Further, overwork harms our family relationships and is strongly associated with sleep deprivation, anxiety and depression. Working too much increases the risk of injury, and this is not limited to a single workplace. Insecurity itself is a health risk that carries a 34-per-cent increased risk of heart disease. Given that the federal government’s JobMaker credit may actually exacerbate underemployment, simultaneously lowering wages may result in more widespread overwork across multiple jobs. Buying into these changes thus constitutes a threat to our well-being for the sake of employers’ profit margins.
My doctor recommended I take one month of leave following a hernia operation, but I couldn’t afford to stay home. I could tell I was doing the wrong thing, but without leave I had no choice. When I returned, my manager asked me to move a significant amount of teaching materials up several flights of stairs. My request to delay the move by two to three weeks due to the operation was denied and met with bullying, and I was lucky to have students who helped me.—Sarah (casual for over ten years)
The security of our jobs also has an impact on how safe we are from bullying and discrimination in the workplace. There is evidence that poor working conditions precipitate bullying, and that it is positively associated with financial pressure, insecure work and regulatory failure. This is especially true in contexts with high job demands but limited organisational resources such as supportive supervisors, healthy workplace cultures or robust policy frameworks. Permanent employment is not a solution, but it constitutes a foundation on which to build these resources. By diminishing them through insecure work, the omnibus bill endangers workers when we should be moving in the opposite direction.
Our entire relationship with management is coloured by that imbalance of power. In terms of handling complaints, bringing up issues in the workplace, and issues with management… It feels very unsafe because of how disposable we generally are. I think it’s true that we are disposable.—Hannah (casual for three years)
Age discrimination is common in Australian workplaces and it is more likely to have a negative impact on workers aged fifty-five to sixty-four, those looking for work, single parents, and people in lower income brackets. Importantly, many older workers report being turned down for positions on the basis of age. Older workers face the dual challenge of being regarded as less competent both because of their casual work history and because of their age. Given that the government’s JobMaker credit appears to incentivise sacking older workers, there is a risk that they will be left unable to find meaningful work due to Australia’s pervasive ageism. These workers are permanent in everything other than name and deserve secure jobs.
The middle-aged casual teachers…I feel that lack of security. Maybe I’ve got ten to fifteen years until super or a pension. I’m here today… What about tomorrow? What about the pandemic? This is all I’ve ever done. What else am I going to do? My biggest concern is ageing teachers and what is to happen with them. If they lose their positions, it’s really hard to get re-employed.—Stella (casual for four years)
We are in the midst of a wage crisis that predates the pandemic and has its roots in the proliferation of non-standard, insecure employment relationships. Entrenching these relationships will deepen inequality and put us all at risk of serious harm. Women, older workers and people already below the poverty line will most likely bear this burden. It is not enough to measure the health of our society by how many jobs exist or how quickly the economy is growing. The quality of our jobs informs our quality of life. In order for the omnibus bill to become law, it will have to pass through both houses, which will require the approval of a number of crossbenchers. We cannot allow employers to continue using the rationale of flexibility to deprive workers of entitlements and power while satisfying their ongoing, largely inflexible labour needs.
* All names have been changed.
Lauren Kelly, 28 Jan 2021
…a genuine acknowledgment that care workers, cleaners, warehouse workers and food-production workers—among many others—produce significantly more social value through their labour than the average executive is a challenge to the classist hierarchies of work.