Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I want to ask some questions—and I know Senator Lambie has some as well—on casuals. Perhaps I could go through the proposed amendments to the definition of 'casual employees' that will be agreed to later today. The bill itself, as we know, scraps the current definition and provides a new definition of 'casual employees'. The proposed new definition provides that an employee is a casual employee on the basis that the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work and the employee would be entitled to a casual loading. The bill then proposes to define the phrase 'absence of a firm advance commitment to continued and indefinite work' by reference to a series of points: the real substance, practical reality and true nature of the employment relationship; the contract of employment or the mutual understanding or expectation between the employer and the employee not rising to the level of a term of that contract, which may be inferred from the conduct of the employer and the employee after entering into the contract of employment, or from how the contract is performed; and having regard to but not limited to (a) an inability of the employee to elect to offer work or an inability of the employee to accept or reject work, (b) the nature of the employer's enterprise and (c) whether there are full-time and part-time employees performing or whether there is a regular pattern of work for the employee.

So, anybody in the gallery who's a small business, that's your new test for employing a casual. God help you, is all I can say. Can I ask a series of questions, though, in relation to how this is going to play out? Can you confirm under the provision proposed that, even if a casual employee wanted to sort out and agreed that they were a casual employee, the Fair Work Commission, under this definition, can still determine that they are not in fact a casual employee?

My second question: if a business has one of its casuals defined as permanent due to a decision by the Fair Work Commission, will the business then have to define as permanent other casual employees who are in the same situation, even if the other employees want to remain casual?

My next question: if the casual employee who originally wanted to remain casual then decides, at a later point, that they want to become permanent, is the employer required to make them permanent? Or do they then need to go back to the Fair Work Commission for a decision? In the legislation, proposed section 15A(3)(c) states:

a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time …

The question that's being asked there is, can you define what 'absolutely uniform' means in that situation? And the other question that then arises is, when is a pattern of work that could lead to an employee being classified as permanent 'absolutely uniform' and when is it not 'absolutely uniform'? And are you able to give a clear definition to small businesses in terms of what is defined as a 'regular pattern of work'? Or will this be a decision of the Fair Work Commission, which could produce a wide variety of results? They're all questions that have been put to me and submitted by small businesses.