IR reforms: Businesses and government to thrash out casual work definitions and wage theft at top-level meeting

Potential changes to the definition of casual employment will be a top item on the agenda in Canberra today, as Minister for Employment and Workplace Relations Tony Burke meets with industry representatives to hash out the next chapter of the federal government’s reform agenda.

Groups representing small businesses, including the Council of Small Business Organisations of Australia and the Australian Chamber of Commerce and Industry (ACCI), are among those set to discuss a range of policies lawmakers could not squeeze into last year’s blockbuster Secure Jobs, Better Pay Bill.

Burke is set to have direct involvement in the discussions, which will cover rules around casual workers, wage theft criminalisation, anti-discrimination provisions in the workplace, and big-picture discussions around minimum standards for gig economy workers.

New definition of casual work

Speaking before the National Press Club last week, Burke said the federal government will focus on enshrining a specific definition for casual workers in 2023.

In 2021, a high-profile court case affirmed the notion that an employer defining a job as ‘casual’ in their contract serves as solid evidence the job is, in fact, casual.

In turn, the former Coalition government passed legislation tweaking the Fair Work Act, declaring that a person qualifies as a casual if they “accept an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.”

However, the Labor government is concerned that relying on contracts signed at the start of an employee’s tenure may not capture the reality of their job, particularly if they work regular, predictable shifts on a nominally ‘casual’ basis.

While the casual conversion pipeline now exists, so too does a fear that casual workers may perform their jobs identically to those on full-time or part-time contracts but without the same entitlements offered to those workers, fueling what the federal government has branded as insecure work.

The Australian Council of Trade Unions has also called for a “common sense and fair definition” of casual work, as part of its broader campaign to boost workplace rights for employees.

But further tweaks to the definitions of casual employment will only do more harm than good, ACCI says, particularly for small businesses who have just got their head around the last Fair Work Act amendments.

“Casual employment arrangements are crucial for small business and provide flexibility to both the employer and employee,” Jessica Tinsley, ACCI’s deputy director of workplace relations, told SmartCompany.

“The union movement has long pushed for a change to the definition of casual employment to make it harder for employers to engage casuals,” she added.

“If the government were to give in to this demand, we will see greater uncertainty for business, less flexibility and lower wages for employees and will place hundreds of thousands of Australian jobs at risk.”

Wage theft criminalisation

Beyond questions over the definition of casual employment, the discussions are set to touch on the criminalisation of wage theft — another promise Labor brought to the 2022 election.

While Victoria has introduced state-based criminalisation, and the first case of its kind is currently before the courts, Labor wants a nationwide crackdown on exploitation which costs workers an estimated $1 billion each year.

The exact shape of those reforms will be of keen interest to small businesses, given the need to protect workers from bad actors, while also considering how complexities in the workplace relations system can lead to ‘accidental’ underpayment.

“Employee-like” solution for gig economy

Discussions will also cover the federal government’s intention to find an “employee-like” middle ground between independent contractors and employees within the gig economy sector.

Speaking on Sunday, Burke said it was his hope that Australia’s workplace relations system could be amended to allow a categorisation that doesn’t see worker rights and entitlements “fall off a cliff” when they engage with gig work providers.

But Burke indicated a willingness to discuss how, precisely, such an arrangement would work, given the appreciation some workers have for gig platform options.

“There are — I’m not pretending there aren’t — people across the board who want more secure jobs than they can currently get,” he said.

“Absolutely, that’s true, and we are delivering on that — but we also don’t want to fall into the trap of pretending that everybody who is not an employee wants to be an employee.”

Wednesday’s discussion will also touch on Labor’s push to establish “same job, same pay” provisions ensuring labour-hire workers earn the same as employees for the same work, anti-discrimination efforts, and new safety standards for long-haul drivers, among other topics.