Award re­view - sig­nif­i­cant de­ci­sion: ca­sual and part time em­ploy­ment

Australasian Timber - - ASSOCIATIONS - Brian Beecroft Chief Ex­ec­u­tive Of­fi­cer Tim­ber Trade In­dus­trial As­so­ci­a­tion

EM­PLOY­ERS WOULD be aware that the Fair Work Com­mis­sion is cur­rently un­der­tak­ing its four-yearly re­view of mod­ern awards. Re­cently, as part of the re­view, a Full Bench of the Com­mis­sion handed down its de­ci­sion con­cern­ing a num­ber of union claims re­lat­ing to ca­sual and part time em­ploy­ment.

What was the ca­sual and part time em­ploy­ment case about?

The ACTU, on be­half of its union af­fil­i­ates, had made a num­ber of claims af­fect­ing ca­sual and part time em­ploy­ment in over 100 mod­ern awards and broadly seek­ing “one-size-fits all” award pro­vi­sions on these im­por­tant mat­ters. The claims in­cluded:

• Min­i­mum En­gage­ments: A stan­dard four hour min­i­mum en­gage­ment for ca­sual em­ploy­ees and part-time em­ploy­ees.

• Ca­sual con­ver­sion: An award pro­vi­sion re­quired em­ploy­ers to of­fer weekly em­ploy­ment

(full time or part time) to ca­sual em­ploy­ees af­ter 6 months of reg­u­lar em­ploy­ment with the ca­sual em­ployee able to elect to be­come a weekly em­ployee or re­main as a ca­sual. For some awards, the unions pro­posed that ca­sual em­ploy­ees would be “deemed” to be weekly em­ploy­ees. • Restric­tions on new ca­sual work: An award pro­vi­sion that would pre­vent an em­ployer from of­fer­ing new ca­sual em­ploy­ment with­out first of­fer­ing ex­ist­ing ca­sual or part time em­ploy­ees an op­por­tu­nity to in­crease their hours.

The unions’ claims were op­posed by the ma­jor em­ployer groups em­pha­sis­ing that the ACTU had not ad­vanced suf­fi­cient ev­i­dence, its claims were in­ap­pro­pri­ate, and would dis­rupt cur­rent award min­i­mum en­gage­ment pro­vi­sions hav­ing re­gard for par­tic­u­lar in­dus­try cir­cum­stances.

The De­ci­sion also dealt with union and em­ployer claims to vary other ca­sual and part-time em­ploy­ment pro­vi­sions in some award groups or in­di­vid­ual awards.

What does the Com­mis­sion’s de­ci­sion mean?

The Com­mis­sion re­jected the unions’ claim to pre­vent em­ploy­ers from en­gag­ing new em­ploy­ees with­out first of­fer­ing avail­able hours to ex­ist­ing staff, cit­ing a lack of ev­i­dence and the im­prac­ti­cal­ity and un­sus­tain­abil­ity of such ar­range­ments.

The Com­mis­sion also re­jected the unions’ claim for 4 hour min­i­mum en­gage­ments across the board for all ca­sual and part-time em­ploy­ees. How­ever, some as­pects of the union claim were granted, in a mod­i­fied form.

Ca­sual con­ver­sion

The Com­mis­sion de­cided that mod­ern awards should con­tain ca­sual con­ver­sion pro­vi­sions.

The Com­mis­sion has formed the pro­vi­sional view that a model ca­sual con­ver­sion clause will be in­serted into 85 awards that do not cur­rently con­tain such a pro­vi­sion. It is pro­posed that the clause will in­clude the fol­low­ing:

• A qual­i­fy­ing pe­riod of 12 cal­en­dar months;

• A qual­i­fy­ing cri­te­rion that over such pe­riod the ca­sual em­ployee has worked a pat­tern of hours on an on­go­ing ba­sis that would not be in­con­sis­tent with the part-time and full-time em­ploy­ment pro­vi­sions of the par­tic­u­lar award;

• The em­ployer must pro­vide all ca­sual em­ploy­ees (re­gard­less of whether they are el­i­gi­ble for con­ver­sion) with a copy of the ca­sual con­ver­sa­tion clause within 12 months of their ini­tial en­gage­ment; and

• The con­ver­sion may be re­fused by an em­ployer only in par­tic­u­lar cir­cum­stances:

○ It would re­quire a sig­nif­i­cant ad­just­ment to the ca­sual em­ployee’s hours of work to ac­com­mo­date them in part­time or full-time em­ploy­ment in ac­cor­dance with the terms of the ap­pli­ca­ble mod­ern award; or

○ It is known or rea­son­ably fore­see­able that the ca­sual em­ployee’s po­si­tion will cease to ex­ist; or ○ The em­ployee’s hours of work will sig­nif­i­cantly change or be re­duced within the next 12 months; or

○ On other rea­son­able grounds based on facts which are known or rea­son­ably fore­see­able.

The Com­mis­sion has in­vited fur­ther sub­mis­sions on the con­tent of the pro­posed model clause. Any awards that al­ready con­tains a ca­sual con­ver­sion clause will not be var­ied in this re­spect.

Ca­sual min­i­mum en­gage­ment

The Com­mis­sion has also formed the pro­vi­sional view that a 2 hour min­i­mum en­gage­ment for ca­sual em­ploy­ees will be in­tro­duced into all 34 awards that cur­rently do not cur­rently con­tain a ca­sual min­i­mum en­gage­ment. Any award that al­ready con­tains a ca­sual min­i­mum en­gage­ment will not be af­fected, e.g. the Tim­ber In­dus­try Award 2010 al­ready con­tains the pro­vi­sion for min­i­mum en­gage­ment of 4 hours.

When do the changes com­mence?

None of the above changes have come into ef­fect as yet. For some of the above pro­posed changes there will be fur­ther Com­mis­sion pro­ceed­ings. TTIA Mem­bers will be no­ti­fied when the above changes are due to com­mence.

The TTIA op­er­ates the Tim­ber In­dus­try’s only in-house pre­mier In­dus­trial Re­la­tions ad­vice line along­side le­gal and work­place health and safety ser­vices. If your com­pany is in­ter­ested in in­for­ma­tion with re­gard to mem­ber­ship, please con­tact TTIA on (02) 9264 0011.

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