The Guardian November 28, 2001


Win for casual workers

by Bob Briton

There was good news last week for the growing proportion of the Australian 
workforce employed as casual workers.

In the Federal Court there was a unanimous decision of a three-member full 
court that the exemption of casual workers from protection under unfair 
dismissal legislation by the Federal Government was invalid. The Court 
found in favour of a short-term, casual employee of Tricon International 
Restaurants which trades as the fast food outlet KFC.

The long-running test case was mounted by the Shop, Distributive and Allied 
Employees Association. The announcement by Justices Murray Wilcox, Shane 
Marshall and Leslie Katz prompted an immediate response from Workplace 
Relations Minister Tony Abbott and assorted business groups who vowed to 
get even.

The Federal Government may choose to reword the regulations with which they 
sought to exclude casual employees engaged for less than 12 months from the 
unfair dismissal system. However, even if it found a form of words that 
satisfied the Federal Court, it could have trouble getting the re-jigged 
regulations past the Senate where the Greens are bound to have greater 
influence.

The Federal Government's problems before the Court flowed from the 
definition of "short term casual employment" in the regulations mentioned 
above.

As it stood, someone who worked for the same employer for ten years could 
still be excluded from unfair dismissal protection as a "casual employee 
engaged for a short period".

The Court also found that the relevant provisions of the Workplace 
Relations Act did not give the Government the powers needed to exclude 
short-term casual workers.

It goes without saying that the Federal Government introduced "expert 
evidence" to the Court to the effect that job creation could be jeopardised 
if bosses lose the right to dismiss casual workers at the drop of a hat.

On this occasion Professor Mark Wooden of the Melbourne Institute outlined 
the case for the Government but the judges found he had produced no firm 
evidence of a connection between unfair dismissal protection and any 
negative effects on employment. 

Of course, this won't prevent the Government and employer organisations 
campaigning around this article of the new right faith in its renewed 
attempts to deny casual workers the minimum of decent treatment in their 
employment.

This latest victory for casual workers can be added to the success last 
November of the AMWU in Victoria when they won a guarantee of permanency 
for casual workers employed for more than six months by the same employer.

It will surely encourage the United Trades and Labor Council in South 
Australia which is campaigning at the moment for parental leave for regular 
casual workers.

There is still a long way to go before the labour movement can declare 
itself satisfied with the circumstances of casual workers. A brief 
examination of the Smart Casual Association's report last August called 
Don't Bother coming in Today would snap any progressive observer out 
of their complacency. 

They found that 44.5 per cent of young workers are employed as casuals. 
Only 21.9 per cent of them are union members, 55 per cent don't know their 
correct rate of pay, 33per cent work unpaid overtime, 75 per cent reported 
work-related injuries to their boss, 22 per cent of those suffered negative 
repercussions. The statistics paint a gloomy picture.

The latest victory in the Federal Court must be used to further encourage 
casual workers to organise.

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