Minister for Employment and Workplace Relations Tony Burke has committed to amending the Closing the Loopholes Bill, allowing casual workers to remain casual even if they are working a regular pattern of hours.
The Fair Work Legislation Amendment Bill 2023, commonly known as the Closing the Loopholes Bill, makes adjustments to Fair Work Act 2009. Notably, the Bill proposes adjustments to the definition of casual work.
The Australian Hotels Association (AHA) received the commitment from Minister Burke, and AHA National CEO Stephen Ferguson spoke to Bars and Clubs about industry opposition to the casuals part of the bill.
“The way that we interpreted the draft of the Bill was that anyone who had a regular pattern of work could not be a casual. The Department and the Minister said that was not their intent and that they didn’t think that was the way the bill was drafted. But every other person, every other industry group had a very strong view that that was the effect.
“A couple of examples of what that would mean include parents seeking to work on the weekend, while their partner works during the week, and then they could work every Saturday, that type of employment would only be able to be offered if it was permanent.
“And the obvious example is a university student who wants to study five days a week and then just work weekends to earn money and loadings and penalty rates, that would have established a regular pattern of work and the Government was saying that person should have been employed as permanent,” Ferguson said.
He added: “The difficulty there is that the person would not have been able to get penalty rates and would not he would not be able to reject shifts, so a parent couldn’t say no if it was school holidays, or university student couldn’t say no if they wanted to go to a music festival.
“But the big trouble was at the end of that process there were fines up to $93,000, if you made a mistake as to whether someone should have been casual, or whether they should have been permanent.”
The bill will be amended to enable casual workers to remain casual even if they are working a regular pattern of hours.
“There were two parts of the bill section 15A and 359A, and the Government has agreed to completely withdraw 359A, which is the civil penalty provision for mistakes. And then they’re going to make it clear in the bill, that when a person wants to work a regular pattern of work, that the employer is not in breach of any workplace laws if that’s the case,” Ferguson said.
Ferguson also explained that as well as impacting casual workers, the Bill was causing concerns for operators and may have even caused more strain on staffing levels.
“If a university student walked into a pub and said ‘I’d like to work but I can only work weekends’ the operator could have said ‘I can offer you the work, but it would have to be fixed shifts and so you’ll be permanent and you won’t get holiday loading, you won’t get the 25 per cent casual loading and you won’t be able to reject shifts’ so that would have just driven workers away to somewhere else. So the changes retain the flexibility for the worker and the employer,” he said.
Currently, the Bill proposes to replace the existing definition of casual employment with a ‘fair and objective definition,’ as well as introducing a new employee choice pathway that allows eligible casual employees to change to permanent employment if they wish to do so. However, casual employment cannot ‘transform’ into permanent employment during the employment relationship. This change can only happen if a specified event occurs.
“The simple fact is many hospitality workers do actually prefer casual employment, given the 25 per cent wage loading and the flexibility to refuse shifts,” Ferguson said.
“Our concern with the original Bill was that employers would no longer be able to provide systemic regular casual employment to those workers who were happy with it.
“The amendments which have been committed to provide much more certainty and fairness for workers and employers and can be chalked up as a win for both.
“They strike the right balance – and we thank Minister Burke for taking the time to listen to our concerns and taking actions to address them,” Ferguson concluded.