Employers apply for creation of new 'permaflexi' worker category

Dana McCauley
February 27, 2019
The Age
The NSW Business Chamber has filed a groundbreaking application to create a new type of employee in between a casual and a permanent worker, as a prelude to extending the approach across the nation’s hospitality and retail sectors.
The new category of employment – “permaflexi” – would be established within the community services industry award if a test case filed with the Fair Work Commission late on Wednesday is successful.
Workers hired under the proposed “flexible ongoing employment” category would get a 10 per cent loading on top of what permanent full or part-time employees are paid per hour, in exchange for flexible rostering subject to minimum hours.
Unlike casual workers, they would have access to all the benefits available to permanent employees under the National Employment Standards – such as sick leave and holiday pay, accrued relative to the number of hours they work.
Casual workers, of whom there are more than 2 million in Australia, are paid a loading of up to 25 per cent, but do not get annual leave or sick pay.
The chamber’s chief executive Stephen Cartwright said the “permaflexi” concept aimed to address employers’ concerns about wanting to give workers more security but needing flexibility of hours.
It comes after a landmark court decision up-ended employer assumptions about the long-term use of casuals, sparking fears they could be exposed to liabilities of up to $8 billion across the economy.
Mr Cartwright said the permaflexi solution was “long overdue” and that he expected workers to welcome it, after long-term casuals raised concerns about struggling to securing bank loans and mortgages.
“This is what they’ve been asking for, we’ve fixed all the problems and I’m shocked the union movement is opposing it,” Mr Cartwright said, dismissing as a “conspiracy theory” any suggestion that workers might be coerced into moving from permanent to permaflexi status.
“Why would anyone do it, when they have to pay an extra 10 per cent?” he said.
“It is our hope that the Fair Work Commission will give this full consideration and not be overly influenced by a politically driven campaign.”
The application, seen by The Sydney Morning Herald and The Age, is focused on one category of award – that governing social, community, home care and disability workers – selected because it has a large proportion of part-time workers whose hours vary from week to week.
If the Fair Work Commission approves the chamber’s application and its rollout is successful, similar provisions are expected to be inserted into awards across a range of industries.
Permanent employees would have to give their written consent before being converted to permaflexi status and could ask to convert back, as could those initially employed under the category – but employers could reject such a request on reasonable business grounds.
Social and community workers would be guaranteed a minimum of three hours work per week under the permaflexi award, while home care workers would be guaranteed one hour and others two hours.
It comes as federal Labor seeks to dismantle a regulation created by industrial relations minister Kelly O’Dwyer in an attempt to stop workers from “double dipping” on casual loadings and the entitlements they are designed to compensate for.
The Federal Court last year ruled that Paul Skene, a casual truck driver employed at a Rio Tinto mine through labour hire firm WorkPac, was entitled to annual leave and sick pay because he worked regular hours.
Ms O’Dwyer, class action law firm Adero and the Australian Council of Trade Unions have each sought to intervene in a subsequent test case between WorkPac and former employee Robert Rossato, which seeks to clarify the position of casuals.
In a letter to the Fair Work Commission, lawyers for the NSW Business Chamber said they remained concerned about the impact of the WorkPac decision, as “employment arrangements for a very large number of casual employees” may currently fall outside of those contemplated in industry awards.
“Employees currently engaged as casuals may be considered by a court to be permanent full-time or part-time employees, exposing employers to award breaches,” the letter said.
The application is expected to be opposed in the Fair Work Commission, after ACTU secretary Sally McManus spoke out against the concept last year when the chamber first suggested it, saying it would “destroy permanent work” as employees would have no control over their hours.
Ms McManus’ former union, the Australian Services Union, represents workers who would be affected by the proposed change.