In the era of fake news, modern society has never seen such\nhigh levels of political misinformation. Whether it has been the Brexiteers\u2018 guarantees\nof improbable prosperity for an independent Britain, or Donald Trump\u2019s recent promises\nto \u201cmake America great again\u201d, lazy and untested rhetorical concepts appear to\nhave high political capital. Anyone seeking\nto think deeply about any particular issue within the political or social\nspectrum is forced into a perennial (and healthy) state of non-partisan scepticism.\n <\/p>\n\n\n\n
But Bill Shorten yesterday said something truly astonishing\n\u2013 and as a practicing industrial relations lawyer I feel compelled to call\n\u2018bullshit\u2019 on it. The centrepiece of the\nALP\u2019s (and ACTU\u2019s) election industrial relations platform is its \u2018war\u2019 on casual\nemployment. On this issue, Shorten said:\n<\/p>\n\n\n\n
“Too often, long-term casual work is used as a mechanism to pay workers less, deprive them of leave, and make them easier to sack” <\/em><\/p>\n\n\n\n These comments are not mere \u2018election puffery\u2019. These are representations about the current\nstate of the law, made by one of Australia\u2019s most senior lawmakers. These are\nnot the words of inflated reality TV star \/ millionaire that is \u2018winging it\u2019 in\nan area of law that he doesn\u2019t know and doesn\u2019t care about. These are the words of a government official whose\nprofessional background is industrial relations, and who is uniquely positioned\nto know the intricacies of this area of law. <\/p>\n\n\n\n With that in mind, let\u2019s break these assertions down. According to Shorten, long term casual work\nis a mechanism for:<\/p>\n\n\n\n \u201cPaying Less\u201d<\/strong><\/p>\n\n\n\n Every Modern Award covered employee (which now represent the\nvast majority of vulnerable employees in Australia) provides that casual\nemployees should be paid a substantial loading (normally 25%) of the base\nminimum rate to recognise the fact that they are casual. Breaching these provisions \u2013 and \u2018paying\ncasual employees\u2019 less, would be a breach of section 45 of the Fair Work Act, a\ncivil penalty provision. The law, as it\ncurrently stands, provides that casual employees are paid more<\/em> per hour. Not less. \nIt is true that in many cases casual employees work less hours than\npermanent employees. They are also often working more sporadic or unpredictable\nhours. They are at times working less\nhours than they would like. However, a\nhuge number of jobs only exist because they are casual. And those casuals work more hours than people\nthat have no work at all. <\/p>\n\n\n\n \u201cDepriving of Leave\u201d<\/strong><\/p>\n\n\n\n The concept of \u2018leave\u2019 is extremely broad. In the current legal framework, this falls into two categories. Firstly, there are the various types of \u2018paid leave\u2019 \u2013 financial benefits which accrue as an incident of someone\u2019s job. Secondly, there is the entitlement to take unpaid time off without detriment to your ongoing employment. <\/p>\n\n\n\n In the first category – with regard to annual leave and\npersonal leave, the Modern Awards directly provide for casual employees to be paid\na leave component per hour (this is part the loading set out above). Regarding Long Service Leave, state base\nlegislation provides this to long term casuals in any case, in additional to\nthis loading. From a financial\nperspective, there is no argument available that casuals are \u2018deprived\u2019 of\nleave. It should be recognised that it\ncan be (in many circumstances) difficult to convert this financial benefit into\n\u2018paid time off\u2019. If casual employees want to experience \u2018paid time off\u2019, they\nhave the financial responsibility for accruing and saving these funds, whereas\nfor full time and part time employees this is managed by the employer. For some low-income employees this is\ndifficult and challenging. But to describe this as a financial \u2018deprivation\u2019 is\nsimply false. <\/p>\n\n\n\n In the second category – the ability to take actual time off\nwork without detriment – Shorten\u2019s\ncomments are a complete simplification. \nWhen it comes to parental leave \u2013 clearly the most economically and socially\nimportant type of unpaid leave – long term casuals currently have the same\nlegal protection under the National\nEmployment Standards <\/em>as anybody else. With regard to other forms of\ndiscretionary leave without pay, full time and part time employees have an\nongoing obligation to provide work to their employer. They have to ask permission to take extended\nleave. On the other hand, casual\nemployees can work (or withdraw their availability to work) any time they wish.\nThis is the primary benefit of being a casual. It is convenient for the ACTU\u2019s\ncurrent political narrative to pretend that this scenario doesn\u2019t exist, and\nthat the entire class of employees employed throughout Australia on a casual\nbasis are done so as a method of social oppression. But anyone that has been an employer in\nindustries that rely upon university students or other young adults (as I did\nfor over a decade) will recognise this as not true. <\/p>\n\n\n\n \u201cEasier to Sack\u201d<\/strong><\/p>\n\n\n\n This is the big one. This comment is not only false and inflammatory,\nbut an irresponsible misrepresentation of the law. <\/p>\n\n\n\n There are a number of causes of action available to any\nemployee that has been sacked. The\nGeneral Protections provisions of the Fair\nWork Act 2009<\/em> (Cth), and the suite of human rights legislation provided at\nboth commonwealth and state level draw no distinction between casual and\npermanent employment. <\/p>\n\n\n\n Unfair Dismissal legislation, the primary remedy, does draw a distinction. However, protection is offered to any casual employee that is engaged \u2018regularly\u2019 and \u2018systematically\u2019 for a six month period, and has a \u2018reasonable\u2019 expectation of being engaged again. This is an extremely low threshold (much lower than any conversion to permanency threshold that has been raised or suggested by the ALP). <\/p>\n\n\n\n Under our current laws, it is not \u2018easier to sack\u2019 a casual worker. There may be occasions, in a practical sense, where an employer may find it slightly \u2018easier\u2019 to sack a casual worker, but in my experience this is only because those employees may not always realise that legal remedies are available to them. This type of misinformation from their key political advocate doesn\u2019t help. <\/p>\n\n\n\n If these are the real reasons motivating Shorten to promise casual workers conversion to permanency, then they are false promises. Because the law already allows for these things with fair and robust protections. <\/p>\n\n\n\n In fact, if an employer were to make representations to a casual employee along these exact same lines: that they were \u201centitled to be paid less, deprived of leave, and easier to sack\u201d, this would be an unlawful misrepresentation of the worker\u2019s rights. The employer would be in very clear breach of section 345 of the Fair Work Act, a civil penalty provision. The person making the representation (whether an owner, director, or employee manager or HR representative), could also be liable for personal civil penalties under section 550 for being knowingly involved in the misrepresentation. <\/p>\n\n\n\n But we consider it ok for Mr Shorten to make false representations about workers\u2019 rights, in order to win an election?<\/p>\n\n\n\n Once again, the employers of vulnerable employees appear to be held to a standard much higher than their political leaders. <\/p>\n\n\n\n Very like Donald Trump\u2019s heartless pre-election promises to workers in the ‘rust belt’ about the future of US manufacturing, Shorten\u2019s latest bout of industrial relations misinformation will serve to hurt and confuse the very people his platforms are supposed to protect, and it stinks of disingenuous and deliberate class warfare provocation. <\/p>\n\n\n\n Short of a full-scale revolution, where the means of production are forcibly wrestled from the owners and delivered to the working classes (and we all know how that story ends), propagating class warfare based on mistruths has zero social or political benefit. It may help the ALP get elected, but it won\u2019t fix the lives of working people.And poorly conceived promises of radical industrial relations change have the capacity to cause fundamental damage to the economy, especially small and medium business. This in turn will only hurt the interests of their employees and other stakeholders. <\/p>\n\n\n\n Social change requires social policy. Strong, coherent, sustainable and meaningful policy. Not vacuous industrial relations rhetoric. If the ALP genuinely wish to help vulnerable Australians, this change could be brought by intelligent, economically sustainable and equitable tax reforms. This could in turn provide universal access to early learning and quality education to vulnerable people, provide great healthcare and social programs for the poor, make long term intelligent investments in vocational pathways and skills development, decriminalise drugs, and put in place long term measures to protect the environment for our next generation, perhaps the most vulnerable of us all. <\/p>\n\n\n\n But telling lies about industrial relations helps no one,\nand it serves only to point many reasonable votes in the opposite direction. <\/p>\n","protected":false},"excerpt":{"rendered":" In the era of fake news, modern society has never seen such high levels of political misinformation. Whether it has been the Brexiteers\u2018 guarantees of improbable prosperity for an independent Britain, or Donald Trump\u2019s recent promises to \u201cmake America great again\u201d, lazy and untested rhetorical concepts appear to have high political capital. Anyone seeking to […]<\/p>\n","protected":false},"author":1,"featured_media":1064,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1042"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1042"}],"version-history":[{"count":8,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1042\/revisions"}],"predecessor-version":[{"id":1065,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/1042\/revisions\/1065"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/1064"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1042"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1042"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1042"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}