Convenient casuals or contract casualties?


Gig workers took centre stage at the Australian Public Transport Industrial Association (APTIA) national summit in March.

Convenient casuals or contract casualties?
Casualisation of the workforce appears to be an important issue for drivers this election

Party lines were drawn at the Australian Public Transport Industrial Association (APTIA) national summit held on Wednesday, March 23, as politicians joined industry experts to debate the future of bus driver employment laws.

The virtual summit was well attended, with speakers looking towards the  approaching federal election and the impacts it could have on the industry.

Coming in from the right, Assistant Minister to the Attorney General, Assistant Minister for Industrial Relations and Assistant Minister for Women Senator Amanda Stoker represented the Liberal National Party, and a stance on the importance of workplace flexibility.

Stoker began by speaking of concerns that workers in the industry had a lack of choice when it comes to casual or contracted work.

"Up until Covid, the proportion of the workforce who had been casual had been the same for around the previous 20 years," Stoker said. 

"In [the public transport] industry, where casual employment is valued, the average age of these drivers is 53. A lot of the drivers need the flexibility of casual work."

Assistant Minister to the Attorney General, Assistant Minister for Industrial Relations and Assistant Minister for Women Senator Amanda Stoker

She pressed that she wanted drivers to have better autonomy in choosing their employment status.

"For many workers there is a preference for casual work. They shouldn’t be lost by those in the union movement who have an old school way of viewing employment," she said.

"Many of the casual drivers preferred the higher level of pay as opposed to higher benefits."

While some of these issues relating to casual employment have been addressed and passed into law, the Senator referred to others, such as creating flexibility in modern Awards, making approval of Enterprise Agreements more accessible and extending the time frame for Greenfield Agreements to cover the length of a project.

She also discussed the importance of enforcement and compliance provisions to protect employees against underpayment of wages, which were not yet passed but would be revisited in a new Parliament.

SECURE EMPLOYMENT

From the Australian Labor Party’s perspective,  secure employment was a priority over protecting the gig economy – a position represented by ex-state and national secretary for the Transport Workers Union and current Senator Tony Sheldon.

"Of course, as drivers retired and left the industry during the Covid pandemic, it has created challenges for operators and workers alike," he said. 

Senator Tony Sheldon.

"We found that insecure work comes in many forms. There are many Australians who choose to work part time, as a casual or a contractor. The issue we found was that many of the workers don’t have a choice and many workers either have to choose between starvation or starvation wages."

Sheldon, who recently chaired a Senate Select Committee on Job Security, noted that there were much bigger problems than job security. He said his party in government would seek to address the elephant in the room: wage growth, which has not kept up with the cost of living.

INDUSTRIAL RELATIONS

Professor Andrew Stewart, the John Bray Professor of Law at Adelaide University, gave his overview of both the major parties’ approach to industrial relations, with a clear preference for the opposition.

Stewart stated that he had not heard a single policy commitment from Senator Stoker and was convinced that the opposition would target security at work and wages growth as the basis of its industrial relations policies.

He also flagged that, during this next term of government, the current president of the Fair Work Commission would retire, and the government of the day would need to appoint a new one. 

In 2020, Stewart assessed casual drivers in the bus industry after a key case involving a mining company and a contractor handed down its decision, showing that the issue of casual drivers continues to plague the industry.

Professor Andrew Stewart

Then-executive director of the Bus Industry Confederation Michael Apps weighed in on the debate, commenting on what recent decisions and policy means for casual drivers.

"The Bus Industry Confederation has advocated to its members a ‘wait and see’ approach to the decision and has sought legal advice on its implications for our employers," he said. 

"It is evident, however, that the implication for our industry from the decision is that employment for casual school bus drivers, who work regularly for 40 weeks a year, will have to be re-assessed by their employers and casual coach and charter drivers also may no longer be able to be employed as casuals."

An example of this from 2010 showed that under the Passenger Vehicle Transportation Award 2010, drivers were entitled to receive $38.94 per hour on weekends, and $48.68 per hour on public holidays.

Classifying the bus drivers as contractors and paying them a flat rate meant that they missed out on casual loadings, overtime rates, weekend and holiday penalty rates, as well as night and early morning work penalty rates.

The Federal Circuit Court found that the four drivers were underpaid by $46,012 between 2012 and 2014. Even though the bus company had since paid the four workers back in full, the judge fined the company $89,250 for ‘deliberately’ wrongly classifying the bus driver employees as independent contractors.

Sheldon weighed in on these decisions. He noted that they show that casual work, compared to contracted work, will continue to be an issue throughout this pre-election and election period and is heightened by the gig economy.

"The greatest threat to reputable companies is the gig economy and the way these companies employ staff," he said.

INDUSTRY CHALLENGES

Politics aside, a range of industry experts gave their views throughout the seminar on challenges facing the public transport industry.

Casual work has raised issues around staff missing out on benefits given to full time employees.

Vice president of the Fair Work Commission Adam Hatcher gave an overview of the workings of the commission and the rapid transformation of commission practices, especially in relation to the development of recent online hearings. He gave an insight into the continuing challenges in the commission against the public health orders mandating vaccinations.

In 2021, a number of states mandated that specific areas of workforces would need to be vaccinated against Covid or they would be unable to remain employed in that industry.

Nikki Britt, a health expert and director of worker compensation insurer Employers Mutual Insurance (EML), spoke about the mental health issues that had arisen as a consequence of the pandemic.

Britt highlighted the challenges that drivers face regardless of political rows, and the responsibility for employers to understand the psychosocial issues that may impact on an employee in the workforce.

"We need to appreciate and understand that the psychological pressure on our staff is going up," she said

 

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