Last week a High Court ruling was handed down that will prevent millions of casual workers access to any kind of paid leave.
It was a ruling that overturned last year’s Federal Court decision in which “casual” coal miner Robert Rossato successfully argued he should get sick and carer’s leave on the basis that he worked full-time hours over several years for the same employer, and therefore shouldn’t have been classed as a ‘casual’ in the first place. Just because his employer chose to call him a ‘casual’, he argued, didn’t mean that was a true or legitimate representation of his work status.
The Federal court agreed and Rossato won – setting a powerful precedent for future class actions, not to mention laying fertile ground for potentially exciting law reform. Unions were ecstatic. Workers were ecstatic. Employers and the Morrison Government were not.
So what did Morrison do? He ripped the guts out of the Industrial Relations laws earlier this year so that now, if an employer says you’re a casual, well then – that’s what you are. Regardless of the actual, true nature of your employment.
Why is This Latest Ruling Significant (and also Outrageous)?
Because it represents a shift in the way courts have been told to think about workers’ rights, from a focus on the reality to a focus on their contracts – i.e, on how their bosses choose to define their work – rather than the reality of how workers are being engaged. It’s basically turning a blind eye to sham contracting to protect bosses from having to offer a modicum of security to their workers.
Young Workers’ Centre principal lawyer Oanh Tran sums this up perfectly.
“If it looks like a duck, and it quacks like a duck, it’s a duck. If a worker like Robert Rossato is engaged on full-time hours, for years and years, with advanced-notice rosters, he cannot be a casual employee.
“But first Morrison’s IR law changes and now the High Court has said that simply because bosses say that a duck is a sheep – we all have to accept that it’s a sheep.”
“Absurd doesn’t even begin to describe it. This is a kick in the guts to so many workers, especially young workers.
“It will entrench insecure employment, something COVID should have taught us is an abomination if we didn’t know it already.”
Join the Casual Workers Who Are Over It and are Fighting for Change
Lukas and Charlie have just finished the Young Workers’ Centre’s Union Winter internship program – and they’re fired up to campaign for a fairer deal for other casual workers.
Lukas, a waiter and proud Hospo Voice member, admits there have been times he’s worked casual shifts whilst being unwell, including going to work with tonsilitis. He needed the income, but he says that during COVID it was also “a psychological thing” of not wanting to let down his boss.
“I’m really aware that it’s such an insecure time for small businesses with COVID lockdowns, and my manager was under huge pressure himself,” he says. “The reason for that struggle is the Morrison Government not rolling out vaccines properly. That’s what’s led to the outbreaks that have caused these lockdowns.”
Charlie, who is currently working as a casual outdoor ed instructor, says he feels the pressure of having zero safety net. He cannot afford to live independently and is less likely to take time off when he needs it.
While Charlie underwent his apprenticeship, he worked at a servo and ran pizza deliveries to supplement his income and reflected on the difference it made when one of those jobs was permanent part-time. “It was so nice, just knowing I had those 10 hours a week permanently locked in, and the sick leave was there if I needed to take it,” he recalls.
Both of them are keen to get more involved in Young Workers’ Centre campaigns. For Lukas, who describes the Federal Government’s IR law changes as “horrifying,” working collectively is the only hope for change.
“I see the union movement as the only thing that’s creating real movement – in changing policies and laws like with wage theft, and improving people’s working lives like when people go on strike and work collectively.
“How can young workers be happy in their lives when their employment is so insecure?
It’s not surprising that there’s a rise in mental health crises in the context of increasing casualisation. Life right now is insecure and unpredictable enough as it is.”
Last Wednesday, a High Court ruling was handed down that will prevent millions of casual workers access to any kind of paid leave. It was a ruling that overturned last year’s Federal Court decision in which “casual” coal miner Robert Rossato successfully argued he should get sick and carer’s leave on the basis that he worked full-time hours over several years for the same employer, and therefore shouldn’t have been classed as a ‘casual’ in the first place.