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Thursday, 12 December 2002
Page: 8022

Senator HARRIS (10:47 PM) —I seek leave to incorporate my second reading debate speech in Hansard.

Leave granted.

The speech read as follows—

About the Bill

In November 2001, the Federal Court in the Hamzy decision, ruled that regulations that excluded short-term casual from unfair termination remedies were invalid, because they went further than the regulation making power in the Act.

The regulations found to be invalid had excluded casuals from accessing termination of employment remedies unless they had been working for their employer on a regular and systematic basis for at least twelve months and had a reasonable expectation of continuing employment with the same employer.

A consequence of this decision is that casual employees are currently able to bring an unfair dismissal claim against an employer (unless they are subject to some other exclusion from the provisions, for example during the 3-month probationary period).

The Government expressed concern that this decision would suddenly expose employers of many casual employees to the risk of an unfair dismissal claim, contrary to their understanding on engaging those employees, and create great uncertainty.

In introducing this bill the Government has stated that its purpose is to restore the casual exclusion that was in place prior to the Hamzy decision.

The bill would also insert a new provision into the Act requiring applicants seeking relief under federal termination laws to lodge a $50 filing fee. The fee, which is currently provided for under regulations, will be indexed annually in line with movements in the Consumer Price Index.

Australia situation

Australia has one of the highest rates of casual employment in the OECD. ABS data shows strong growth in casual employment over the past fifteen to twenty years. Figures cited in a recent Federal Court decision showed that casual employment more than doubled from 848,300 in 1984 to 1,931,700 in 1999—an increase of 117 per cent. In the same period, permanent employment grew from 4,509,900 to 5,372,500, a miserable 19 percent increase.

In little more than a decade, over a million Australians have been forced into insecure conditions of work, many working two or three jobs at once. Both inside and outside a business, employers now have at their disposal a cheap reserve capacity to which they can turn according to the situation prevailing on the market.

Globalisation is the driving force behind this push for a free and flexible labour force. The job killer strategies—downsizing, restructuring, outsourc-ing, deregulation and privatisation are more easily implemented with the use of casual labour—a strategy used to reduce costs.

Today, we have a special description for this process—the “casualisation of the workforce”— originating from the word “casual”. For casual employees, wages are often lower. Working conditions may be poorer. There is little or no chance for career development. Flexible labour market legislation does not guarantee holiday pay, sick leave or other allowances. Increasingly, these entitlements are becoming a luxury.

For the partially employed, there is tendency for intensification of work. Employers either cut down the number of personnel or increase working load per each employee. There are longer working hours; higher work loads; increased rhythm of work during night shifts or in early morning hours; and increased work without pay or overtime.

There is no indication that the casualisation of the workforce is going to slow down. To this end, casual workers need adequate legal and industrial protection.

Queensland situation

Within the last five years, the Queensland labour market has had a disproportionate share of casual employment, with up to 31.1 per cent of all employees employed on a casual basis. This compares with an all-persons percentage of around 26.9 per cent for Australia as a whole.

In line with the national trend, the number of employees working under casual arrangements has increased substantially over the last 10 years. Approximately half of the 380,000 new jobs created in Queensland during the period 1988-1998 were defined as casual.

Pros & Cons

Supporters of this Bill argue that its passage will lead to greater employment in the small business sector because the fear of wrongful dismissal claims will be removed. It is claimed that unfair dismissal laws have stopped small firms hiring additional staff.

A survey by the CPA in February 2002 indicated that 5% of businesses surveyed out of a sample of 600 were concerned about unfair dismissal laws. In a media release, Minister Abbott claimed that the survey supported the Government's case for this legislation. Shadow Minister McClelland claimed victory for the opposition maintaining that a result of only 5 per cent demonstrated there was no need for this sort of legislation. It seems that both the government and the opposition are out of touch with small business. Where are their own surveys?

One Nation believes that there must be more consultation with small businesses—the genuine small businesses who are mum and dad operators to obtain specific information on this issue. We need to address the unique problems that small businesses face in the wake of sweeping economic reforms which have occurred over the last decade.

At the end of the day, fair termination laws are only part of a very heavy burden that small businesses face. The administrative nightmare of the GST, extended trading hours, predatory pricing, concentration of ownership in the retail sector, strong competition from imports particularly in our manufacturing and farming sectors and the pressure to cut costs—to get competitive or get out—are some of the pressing issues for our mum and dad operators in the cities and for our farmers—the forgotten small business owners.

Senate Inquiry

The Senate Committee of inquiry into this bill received many submissions.

For the Bill

The Ai Group argued the need for this bill in order to restore the concepts of regular and systematic employment and reasonable expectation of continuing employment. It argued that these concepts are essential inclusions. It also explained the consequences if the bill was not enacted: It is not uncommon for a company to have a list of persons who may be available to carry out casual work and for the company to use that list from time to time when it needs casual labour. If a casual on the list works for a company irregularly and there is no reasonable expectation of continuing employment then it is unfair for an employer to be exposed to an unfair dismissal claim from such a casual regardless of whether or not the casual has been on the list and worked for the company on several occasions over a period of more than 12 months.

The National Farmers Federation (NFF) submission explained that the exclusion of casual employees under this legislation is essential for the efficient operation of agriculture.

Sadly, the NFF has hit the nail on the head. It all comes down to efficiency and what costs can be eliminated in this competitive world. A world in which Australia has lost its economic and political sovereignty to the markets.

Critics of Bill

Critics of the bill argued that casual workers should not be treated differently from other employees when it comes to termination remedies and that the casualisation of the workforce is undesirable.

During the Senate Inquiry into this Bill, it was argued that employees have changed their mind-set and that young people, in particular, seek out casual employment because they can experiment with the market, to evaluate different careers in a quick Manner. It was argued that casual employment is not a market of the disadvantaged but rather a market of those that choose a particular lifestyle.

One Nation disagrees with this thesis. Relative to Western Europe, the extent of casualisation in Australia is comparable to Spain and Portugal, and well above the United Kingdom, France and Germany. Non-standard forms of employment have become more prominent as a response to the pressures posed by economic pressures, globalisation and the quest for a readily available pool of cheap workers.


I would like to give an example from the hospitality industry, which is particularly critical to Queensland. This industry comprises bar attendants, kitchen hands, housekeepers, laundry workers, apprentice chefs, porters and receptionists. While many casual workers are so by choice, there are an increasing number of others for whom this is the only type of employment on offer.

The Hospitality sector is growing at an amazing rate. From 1986 to 1997 the workforce doubled.

But the jobs created are in the main:

· low houred

· low paid

· short term

· casual.

Problems for small business

Employers are conscious that the casualisation of the workforce results in less loyalty to the enterprise and lower skill levels. Small businesses also recognise that casualisation is creating new problems of morale and motivation among employees.

Small businesses employers operate on very narrow margins. The mum and dad operators often have no choice but to employ casual labour. Due to some of the pressures I have already outlined, these businesses can no longer afford to employ part time or full time workers. This is a growing trend and it is not the fault of small businesses. It is a manifestation of the deep economic crisis that Australia currently faces.

Factors to consider

There are many questions that need to be answered about the long term impacts of casual employment:

· Workers are seldom eligible for superannuation—how will they save for their retirement?

· What are the long term impacts of people in casual jobs who receive very little training and have no opportunities for career advancement?

· What are the long term impacts for workers who are unable to get a bank loan with this sort of insecure employment?

· What are the long term effects upon the social welfare system with demands for payment when casual work ceases?

· How can casual employees participate in the government's mean spirited user-pays health system?

Apart from ABS aggregate data, policy makers seem to be operating in an information vacuum as to the factors leading to the increased importance of casualisation and the social and economic implications that flow from it. The vast majority of research in this area focuses on the demand perspective. There is little research available from the government about the impact of casual work arrangements on people's work and personal lives. We know very little about the quality of casual employment at the level of the firm, and very little about casual employment from a supply perspective.


Official national statistics compiled since 1982 reveal that the number of casual employees in Australia has more than doubled, a phenomenon which is arguably the most dramatic development in the labour market in recent times. Casual employees are often viewed as a homogenous group characterised by low levels of commitment and a solely utilitarian view of work. In reality, casual employment is a form of employment that is deprived of most standard benefits, rights and forms of protection and that is marked by substantial levels of precariousness.

The passage of this bill will deny short term casual employees access to federal unfair termination remedies. It would also repeal regulations whereby all casual employees with 12 months service are able to make a termination application. Only casuals with 12 months service who had been working on a regular and systematic basis for the period and had a reasonable expectation of continuing employment with their employer would be eligible to access federal unfair termination remedies.

Under this bill, people may clock up 12 months service as a casual but because their work is not as regular, they will be unable to seek redress if their employment is unfairly terminated. Casual employees would have their employment rights reduced rather than enhanced.

The amendments made by this Bill may well place small business further outside the regulated industrial relations system, and entrench a second rate employment market for employees.

Encouragement of a mass casual workforce is undesirable. Insecurity and fear for the future are spreading. Australians want a balanced and secure working life. While the present fair termination laws may well need to be overhauled—for example, there may need to be a limit placed on penalties which can be awarded in court—One Nation believes that underlying causes of work force casualisation must be fully debated and addressed. We must evaluate the long term social, economic and cultural costs of casual employment and strategies must be effected to deal with the ensuing problems.