Note: I’m not a lawyer.
My take is that this issue has a way to go to play out. The case was about a specific situation. While some are talking it to say it sets a precedent, there others saying it does not.
I suspect the politicians will ultimately settle, clarify, the matter. There are many big business interests that will want this, which will focus the minds of the legislators in Canberra. I am sure the lobbying is well under way.
In the meantime, casual employees should be managed as needed by the business with shifts changing as the business needs change. Variation to the roster to serve the business needs is key.
I agree this decision is going to become a political hot potato and we are already seeing some support for the full court decision from the Federal opposition. I really can’t believe that the judges made no allowance for the employee’s casual loading. Certainly creates an argument for fluctuating shifts for casuals.
Steve, in addition to politicians working on this I expect there will be an appeal for exactly the reason you highlight – the lack of an allowance for the 25% loading.
What’s frustrating to me is that the casual status has been abused by these labour hue first and, ultimately, their customers.
Mark comments on this are sensible and I agree it as a long way to run yet.
The following morning after the Decision I read both the Australian and the SMH on this issue.
The Australian announced the world was ending, the sky falling in and the only way to fix the issue was the Federal government to pass law right now to support the use of casuals as depicted in this court case. Further all casual labour across the economy as a whole would be affected and it was now a crisis that had to be resolved right now.
The SMH had one particular comment along the lines, the reduced payment for conditions forgone by casuals bore no real relationship to the 25% casual loading paid. In this case the value of conditions lost was substantially greater than the 25 % loading.
I pay casual rates in my business. The loading is more than the sum loss of conditions, Holiday Leave, Sick Leave, Family Leave, Redundancy and other forms of leave given today excluding long service leave which all get as a legislated right, casual, permanent full time and permanent part time. All less than the 25% loading. Permanency is lost and this is the balance of the 25% loading not covering easily definable lost conditions (various leave entitlements).
Casuals do not have the right to permanency though they do have the freedom not to work should their family or other needs demand their time away from work. This is something I acquiesce to with their assistance in having another casual staff member rostered in each case. This is what I call Family Friendly Rostering. I as the business owner have the right to cease using a casual to meet my business needs as required with in theory, no redundancy.
I have noticed that the retail side of a lot of Newsagencies like mine are staffed by married women with a family and this of course is their number one interest in life. I have on more than one occasion offered my 3 of my senior staff the option of permanency on a full time or part time basis and it was clearly refused. I initially thought the reason why was loss of the 25% casual loading payment. It was not. Rather it was the loss of flexibility, the freedom that casuals have to refuse work or what hours perform so they can meet family needs.
In this case reported in the media the position involve was a full time position in a mine on a fly in fly out basis with and an ongoing demand should the person perform the job satisfactorily. The person was called a casual and paid substantially less than Rio Tinto paid its employees per hour. The labour hire paid and less than Rio Tinto paid its employees even with a 25% loading. In this case Rio Tinto was using casuals to clearly reduce its employment overheads reduce labour costs thus avoiding award conditions to which it had agreed with employees and representatives.
Yes I think as Mark said this issue has a long way to run.