4. 'Non-standard' contracts of employment
- 4.1 Variability of terms and conditions
- 4.2 The semantics of casual employment
- 4.3 Examination and regulation of casual employment
- 4.4 Temporary employment, job change and job loss
4.1 Variability of terms and conditions
If permanent full-time work for a wage or salary is taken as the dominant, typical or standard form of employment, part-time employment was only one of the atypical or non-standard forms often said to constitute an increasing proportion of all jobs in the Australian workforce of the 1990s. In 1996, EPAC reported that 'casual, part-time, contract and self-employment have grown substantially. [Jobs are] becoming more flexible in the number and scheduling of hours worked [and] job tenure…more variable, with a mix of fixed-term contractors for short-term and long-term jobs' (EPAC 1996b, p. viii). Similarly, an article in the OECD annual Employment outlook enumerated 'shift work, weekend work, self-employment, part-time work and temporary work' (OECD 1993, pp. 18-31). In reviewing trends in industrialised countries Quinlan identified a decline in permanent full-time work, labour shedding and outsourcing by large enterprises, and growth in part-time, casual, agency and other temporary work, self-employment (including businesses conducted under franchises), homework and 'telework', and shift and night work (Quinlan 1998).6
Greater diversity of working arrangements might not only enable employers to manage their operations more efficiently and productively, but also widen the range of choice open to workers and potential workers. In Australia as in other countries, some welcomed the perceived changes accordingly. Others expressed fears of division of the labour force into skilled, secure and well-paid élites and an underpaid, unprotected and insecure lower class, and even of a general erosion of security of employment and entitlements associated with employment. Instead of 'flexibility' they spoke of 'casualisation' and 'polarisation' of labour, 'involuntary part-time employment', 'precarious', 'marginal' and 'contingent' employment; of 'free-market capitalism…producing fewer old-fashioned, tenured jobs, and ever more varieties of temporary work.'' 7 As of 1999, 'The growth of non-standard employment together with the growing insecurity of standard employment continues at a startling pace in Australia' (Burgess & Strachan 1999).
In fact, although change was undoubtedly occurring its extent and consequences were unknown. In Australia, of the various forms of non-standard employment supposed to have become more prominent in the emerging labour markets, the principal statistical collection, the Labour Force Survey, conducted quarterly from 1964 and monthly from 1978, distinguished only part-time employment with any clarity and accuracy. Few of the other forms were recent and some were very old, but none had been of enough interest to be enumerated regularly. In October 1995, the ABS announced that whereas:
A major redesign of the LFS was last undertaken prior to introduction of monthly surveys…In view of the considerable changes and restructuring of the labour market and [new information technology] a major review of the survey and its processing is now warranted, [including] a redesigned LFS questionnaire…
ABS believes that the questionnaire could better measure contemporary labour force characteristics. Some aspects of the labour market are now more prominent than when the current questionnaire was designed…
It is planned to finalise the questionnaire by late 1996… Subject to the successful completion of developmental work [it] will be introduced in late 1997 (ABS 6203.0 October 1995).
It was not. Some work proceeded, more slowly than had been hoped, but an information paper circulated in March 1998 reported that:
A…supplementary survey to be conducted in August 1998 will go part way to gaining an understanding of [the] changing face of the labour market [and a special supplementary] Survey of Employment Arrangements and Superannuation…will be conducted over the period March to May 2000 (ABS 1998).
Statistical collections in other countries had shown similar inadequacies in the face of similar developments. In the United States a special supplement was included in the monthly Current Population Survey for February 1995 to estimate the number of workers in 'contingent' jobs and 'alternative' working arrangements. A preliminary report was published in August 1995 and a group of articles in October 1996 (United State Department of Labor 1995-96). The survey was repeated in February 1997.
The term 'contingent work' was believed to have been coined in 1985 and in 1989 was defined by the Bureau of Labor Statistics as 'any job in which an individual does not have an explicit or implicit contract for long-term employment. In essence, a contingent worker was…anyone who was in a job currently structured to be of limited duration.' The survey data were classified according to the worker's experience and expectations under three definitions, narrower or broader. Under the narrowest definition 'contingent workers were defined as wage and salary workers who…expected to work in their current job for one year or less and who had worked for their current employer for one year or less.' The second included self-employed persons and independent contractors with similar expectations of their employment, and the third 'all wage and salary workers who do not expect their jobs to last.'
Employees in 'alternative' work arrangements were 'defined either as individuals whose employment is arranged through an employment intermediary such as a temporary help firm, or individuals whose place, time and quantity of work are potentially unpredictable.' Polivka (US Department of Labor 1996) remarked, 'It is important to note that although interest in workers in alternative arrangements is relatively recent…some of these alternative arrangements have been in existence for decades.' The four categories used were independent contractors, on-call workers, temporary help agency workers, and workers provided by contract firms.
The first category, independent contractors, was intended to distinguish 'the self-employed— both the incorporated and unincorporated—who considered themselves to be independent contractors, consultants or freelance workers from those self-employed who were business operators such as shop owners or restaurateurs.' The second, on-call workers, 'are called into work only when needed…although they can be scheduled to work for several days or weeks in a row.' The third, temporary help agency workers, were those paid by a temporary help agency, whether or not their job actually was temporary. 'Workers provided by contract firms are 'employed by a company that provides them or their services to others under contract and who are usually assigned to only one customer and usually work at the customer's worksite'. It was admitted that 'the conceptual distinction between the two types of intermediary arrangements is somewhat blurred…'
The three methods of defining contingency produced estimates ranging from 2.2 per cent to 4.9 per cent of the workforce. Workers in contingent jobs tended to be part-time, young, student, female, black, in certain industries, such as services and construction, and in certain occupations. Most stated a preference for permanent, or, rather, 'non-contingent' employment.
The four categories of 'alternative' employment comprised approximately 10 per cent of the workforce. Most 'contingent' jobs were not 'alternative' and most 'alternative' jobs not 'contingent', accounting for about one-third of all contingent workers under the broadest estimate. Under the same estimate 3 per cent of all full-time and 11 per cent of all part-time jobs were 'contingent'. The authors of the survey reports made no comments on whether the findings were as expected. Although compared to those in other countries, the United States' labour market is relatively unregulated, they give an impression of considerable stability in employment arrangements.8
The 1997 survey found that 'In general, the proportion of total employment accounted for by each ['alternative'] arrangement, as well as the characteristics of the workers, was little changed', and that 'Both the number and proportion of workers with contingent jobs…fell between 1995 and 1997' (US Department of Labor 1998).
4.2 The semantics of casual employment
While Australians waited for more informative statistics, concern was expressed with 'The increased casualisation of the workforce. What is happening to full-time jobs?' 'Casual work is the principal manifestation of marginal, precarious, or contingent employment' in Australia' (Sweet 1995). But what was 'casual work'?
In 1996, EPAC noted that 'Casual workers as a proportion of total employees increased from 13 per cent in 1982 to around 24 per cent in 1995,' and explained, under the heading 'Casualisation of the workforce,' that:
Casuals can be defined as workers who are employed as and when required and as such have no legal entitlement to security of employment or leave and other benefits enjoyed by permanent employees. For statistical purposes, the ABS defines casuals as those employees who are not entitled to annual or sick leave in their main job…
The increase in casualisation [sic] has certainly added flexibility on both the demand and supply sides of the market [but] raises important equity considerations (EPAC 1996b, p. 22).
However, the category in question includes many quite different arrangements, and the meaning of the statistical trend is unclear except for one thing: most 'casual' employment was part-time and most part-time work was 'casual'; and as one rose, so did the other. In August 1997, 66 per cent of all part-time employees were 'casual' and 70 per cent of all 'casual' employees worked part time (ABS 6310.0).9
As a term of the language, a casual worker is one who, being available, works or not according to the immediate needs for labour of an employer or series of employers. The Oxford English dictionary's illustrative quotation, from 1923, is
Casual labor. 'Unskilled help, employed and discharged at frequent intervals, and dependent upon the varying demand of the labor market from day to day, without any prospect of continuous employment.'
A study conducted in 1968 of the use of casual labourers by one of five transport firms at a Melbourne rail terminal where goods were transshipped between trucks and railway wagons found that:
The flow of goods is a sensitive indicator of the general level of economic activity, varying from month to month and from year to year [and] demand for labor at the terminal varies accordingly, to the extent that it would be uneconomic to retain enough permanent staff to handle maximum tonnages. Demand also varies from day to day, because goods accumulate in the weekend…The staff therefore consists of about sixty permanent employees, with up to about forty casual laborers being recruited as the occasion demands…
Men seeking casual work assemble at the timekeeper's office…about 7.30 in the morning and are selected…as the needs of the day are determined. Normally the unit of employment is a single eight-hour day [although] first preference is given to men who are regarded as 'permanent casuals', there being four or five…in this category at any given time…Staff say that rarely or never are they unable to recruit as many casuals as they need… I observed two of these morning pickups. Each was attended by about twice as many men as were needed (Jordan 1969).
Call that kind of arrangement 'casual1'. The reference to 'permanent casuals' indicates a distinction within the category between those who have an ongoing. relationship with the employer, recognised by both parties, and those who do not: call the latter 'casual1A' and the former 'casual1B'.
That subcategory, corresponding approximately to the 'on-call workers' of the United States Bureau of Labor Statistics classification, is presumably very common and often informal, and would include, apart from relief teachers and the like, barmen, waiters and shop assistants called on when help was needed for the day or the evening, and people who worked intermittently for truck drivers or tradesmen on the same basis. An unpredictable discontinuity of employment is a defining characteristic of casual1, distinguishing it from, say, regular part- time or seasonal work.
A status approximating to casual1, defined by what it was not, had a shadowy and uncertain existence in common law. Call it 'casual1C'. Brooks (1985) says,
While much…ink has been spilt in an attempt to explain when a worker is an employee and when not, there is no such soul-searching in the…jurisdiction when it comes to differentiating between casual and full-time [sic] employment. It is true that the common law does recognise a distinction between contracts…for a fixed term and those of indefinite duration…In terms of protection for the employee, the distinction turns on the period of notice required to terminate the contract properly. No problems arise with fixed-term contracts but where the hiring period is indefinite then termination is by reasonable notice…
The absence of established principles for determining whether, as a matter of fact, employment was 'casual', was demonstrated in a case decided by the High Court of Australia in 1936 (56 CLR 1936 pp 545-566), on appeal from the Supreme Court of New South Wales, which had upheld a decision of the Worker's Compensation Commission.
The appellant, Doyle, injured while working at his trade of boilermaker after five weeks with the particular employer, was incapacitated for two months. The Commission's determination of lost earnings, and thus the rate of compensation payable, was based on the view that the employment had been casual—a term not defined in the legislation. It was argued in support of that view 'that the industrial award wages paid to the applicant were those fixed for hourly hiring of casual workers in his grade, and that when temporary employment was offering he worked…with the employers in the same industry for short periods.'
The bench of four judges was evenly divided and the appeal dismissed. However, they were agreed on the lack of clear criteria: Starke (against), 'The description "casual worker" is not one of precision: it is a colloquial expression, and where…there is a reasonably debatable question whether the work is casual or regular, the question is…for the commission.' Dixon (against): 'In the case of such typical casual work as wharf labouring [determination of average earnings] causes little or no difficulty. But unfortunately what is casual employment is ill defined. Indeed…it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual.' Evatt (for): 'Doyle was not a "casual worker" at all… Nor did the commission find that he was a "casual worker", merely…that his employment with the particular employer was "casual" in the sense that he could be dismissed at an hour's notice…' McTiernan (for): '…the term "casual worker" is not capable of exact definition…Engagement at an hourly rate is not a criterion of casual…as distinct from regular employment… Many artisans in regular employment are engaged at an hourly rate [and] the appellant was engaged for an indefinite time on terms applicable to all such artisans in the respondent's employment…There was nothing in the evidence which would…justify the application of the term "casual" to the relations existing between the appellant and the respondent.'
The underlying question on which the judges were divided seems to have been whether the form of employment here designated casual1 could be defined clearly enough to determine whether or not the original decision had been unreasonable. Evatt, who thought it was, probably went too far in saying that whereas Doyle had stuck to the one trade, 'a true "casual worker"…is engaged in different trades, callings, or occupations'.
Although derived historically from casual1, the remaining, formal categories really constitute alternatives to it and each other. Australian industrial awards commonly recognised, defined and restricted the employment of casual workers. The distinction appears to date from a decision by Higgins as President of the Arbitration Court in 1921, where the Amalgamated Society of Engineers—meaning metalworkers in general—had applied for a federal award (15 CAR 1921, at 297).10 The union's claim included:
…weekly rates with one week's notice on either side before termination of employment…I have often expressed myself in favour of weekly employment in all cases where the nature of the business makes it practicable… There is nothing that steady family men desire more than constant work, and some certainty as to their income for a week or more ahead. My wages…are awarded on the assumption that the work is regular; and if the work is casual, not regular (as in the cases of the builders labourers and the waterside workers), I award more per hour than in the case of regular work. The employment—whatever it is—should yield enough to pay for the needs of family life and the suitable reward for special qualifications… It is in the interest of the employers as well as in the interests of the employees that the employment should not be casual, that a man should not feel himself to be a piece of flotsam or jetsam in the industry—that he should have a sense of homeship in the concern. Moreover, the wages prescribed will be less; I am providing for 10 per cent higher wages in undertakings such as [for example] Mort's Dock, in which casual labour for urgent repairs to ships seems to be necessary.
The decision was intended to set standards applicable beyond the particular industry. Noteworthy features are that the typical employee was imagined as a male breadwinner, that casual employment—corresponding to our casual1—ought, in the interests of all concerned, be kept to a minimum, and that payment of a loading on the daily rate would encourage the employer to pay by the week wherever possible, while providing casual workers with some compensation for broken employment. New workers also might be employed from day to day for fourteen days. Compensation for lack of entitlements was not discussed, presumably because few existed. The union's claim for 'twelve consecutive days' of annual leave on full pay was refused.
Many things changed over the years, including rates of female and part-time employment unimaginable in 1921, but the distinctions persisted, providing a framework within which contracts of employment, rather than actual jobs, were classified as 'casual' or not.
Much later, Campbell explained that:
…most provisions in awards are couched in terms of continuing ('permanent') full-time waged employment. The floor of minimum labour standards was in fact…built to support…employees in standard employment. But it is also common to find supplementary clauses that allow for…persons in non-standard employment [and] casual employment [is] the most frequently cited form… [They] are [excluded] from most of the benefits and forms of protection prescribed for permanent full-time employees…
When they provide for casual employment, awards typically seek to limit its use [for example] by specifying proportional limits or quotas…When the restriction prescribes a maximum number of hours per week…casual employment is confined to part-time hours and takes the specific form of part-time casual employment. In the absence of provisions for part-time permanent employment, this can in turn mean that all part-time employees under the award are confined to casual status (Campbell 1996).11
Call employment under contracts resulting from variants of such provisions or closely comparable agreements 'casual2'. The defining characteristic seems generally understood to be compensation for lack of certain standard entitlements by a higher rate of hourly pay.12 The category will not include all casual1 employment and will include many other arrangements; very commonly, as Campbell points out, ongoing or 'permanent' part-time employment in which any formal lack of job security may be ameliorated by implicit or explicit agreement. Casual2 also includes most if not all of the 'temporary help agency workers' of the United States Bureau of Labor Statistics classification. Under those arrangements, the agency contracts with and is paid by the client enterprise and in turn pays the worker it has provided, and assumes all of the other normal responsibilities of direct employer. However, industry practice is to provide no entitlements to paid leave, irrespective of the duration of the temporary placement, but to pay a compensatory loading on the hourly rate.13
A 1998 decision of the Australian Industrial Relations Commission concerned principally, as described below, with use of fixed-term contracts in tertiary educational institutions also touched on casual employment, which it defined as 'employment on an hourly rate [that] is specified in one of the relevant awards and is loaded by a factor that takes into account… lack of entitlement to some award benefits available to non-casual employees'—that is, casual2. However, the particular variant that had caused grievance—call it 'casual2A'—was ongoing but discontinuous part-time employment, suspended during breaks in the academic year (AIRC 1998).14
Basically, a person is a casual2 employee if employed under conditions specified by a particular award or agreement as pertaining to 'casual' employees, and those conditions may vary. In a case involving termination of the employment of a man who had worked as master of a cruise vessel under a contract embodied in a letter describing him as 'a casual employee' the Industrial Relations Court had to decide whether he was a person 'engaged on a casual basis for a short period'. The form of words originated in a convention adopted by the International Labour Organisation (ILO) in 1982, ratified by Australia and included in the Industrial Relations Act as a schedule. Obviously, the ILO had not been referring to the peculiarly Australian casual2. Noting that 'In Australian domestic law the expressions "casual employee" or "casual employment" are expressions with no fixed meaning',15 the court looked for a general concept appropriate to the purposes of the schedule and the corresponding regulation and, ruling in favour of the applicant, based its decision on a very fair description of casual1:
In my opinion, what is intended…is that the régime embodied in the Convention should not apply to employment…known to the parties at the time of engagement to be informal, irregular and uncertain and not likely to continue for any length of time… A characteristic of engagement on a casual basis is…that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual…
Plainly Reed's employment was regular and, after early January 1996, would have been infrequent. However, it lacked the informality of casual employment. It was ongoing employment and Reed's obligation to work was clear from the agreement of 20 October 1995 (IRC 1996c).
A study of what became of workers retrenched from the textile, clothing and footwear industry included information on the recruitment practices of manufacturing firms known to have employed any of them at some time after 1993. In describing their firms' use of 'casual' workers—undefined but evidently meaning other than 'permanent', and therefore paid casual wage loadings and lacking certain entitlements—the representatives interviewed had incidentally illustrated the variety of arrangements subsumed under casual2. The report distinguished six categories, three of which were described as typically forms of ongoing employment. For example, 'probationary' workers who might be offered permanency at the end of a specified period, and 'quasi-permanent' workers who 'do not necessarily differ from permanent workers in any easily identifiable way', some of whom preferred higher pay to 'the protection of permanence'. 'Labour pool casual workers' are on-call workers corresponding to our casual1B; 'a reserve…of reliable and trained labour that can be drawn on at peak times and in emergencies', and 'agency casuals' are placed temporarily by the agency that employs them. The remaining categories, fitted into the permanent vs casual2 dichotomy as 'restructuring' and 'technical-organisational casual workers', are suppliers of business services. 'Restructuring casual workers' are outsiders recruited when managers 'wish to transform work culture [and do away with] long-standing work practices…out of step with the organisation's new…directions', and may or may not be kept on after the change has been made. 'Technical-organisational workers' provide services ancillary to the firm's main production processes: 'computer programmers are employed as consultants, women in data entry are casual part-timers and truck drivers may be simply on-call casual' (Weller, Cussen & Webber 1999).
The ABS definition of 'casual employees' as 'employees who were not entitled to holiday leave or sick leave [sc. both…and…] in their main job' was intended to approximate to the status created by industrial awards and agreements but would cover a wider range, even assuming that respondents knew what their entitlements were. Call the statistical category 'casual3'. Its relationship to casual1 is remote and impossible to define precisely. (In a minor variant used in the 1995 Australian Workplace Industrial Relations Survey (AWIRS 95) (Morehead et al. 1997), managers providing information were advised that 'casuals are not usually entitled to paid holiday or sick leave.') Any disadvantages, including those that began in attempts to preserve the jobs and entitlements of existing full-time workers and confined part-time workers to casual2 contracts, were disproportionately borne by women. In August 1997, 32 per cent of all female employees but only 21 per cent of males were in casual3 jobs (ABS 6310.0).
Some indication of the defects of casual3 was given by a special survey, conducted by the ABS in New South Wales in October 1991, which used a more elaborate classification of non-standard forms of employment. The criteria for distinguishing 'casual' from other work were reduced to holiday leave entitlement only, a non-casual job was 'permanent' rather than 'temporary' if the respondent understood it to be permanent and a 'casual' job, being also part-time, was 'irregular' rather than 'regular' if, an hourly rate being paid, income from the job fluctuated. Table 1 below shows the distribution of the sample between categories and rates of entitlements for each. Nearly half were classified as 'regular casual' workers. Only one per cent of persons were 'temporary part time', and they have been combined with 'permanent part time' workers. We see that although coverage of benefits and favourable conditions was lower for 'casual' than for 'permanent' workers they did extend to substantial minorities. Either the two major categories were not distinct or the single criterion of holiday leave entitlement was insufficient to establish the distinction.
| Part-time | |||||
|---|---|---|---|---|---|
Benefits and conditions |
Non-permanent |
Permanent |
Regular |
Irregular |
Other |
Coverage (%) | |||||
Union membership |
37 |
44 |
26 |
24 |
8 |
Superannuation |
22 |
62 |
25 |
24 |
31 |
Award coverage |
76 |
82 |
69 |
70 |
13 |
Long service leave |
32 |
66 |
10 |
10 |
9 |
Study leave |
13 |
34 |
5 |
3 |
5 |
Formal training |
21 |
43 |
23 |
24 |
13 |
Promotion opportunities |
23 |
34 |
18 |
22 |
12 |
Overtime |
55 |
54 |
44 |
37 |
5 |
Worker's compensation |
87 |
95 |
80 |
79 |
48 |
Percentage of sample | |||||
3.8 |
30.6 |
46.6 |
12.3 |
6.7 | |
Notes: Figures in smaller categories are liable to sampling error. 'Don't know' responses have been ignored, and figures are therefore minima.
Source: ABS 6247.1
That survey of 'part-time, casual and temporary employment' was repeated in October 1997. Apart from an implausible tenfold increase in 'casual full-time employment'—our Figure 22 indicating much less growth—the published figures showed more change in conditions than categories of employment. Setting 'casual full-time' employment aside, 'permanent and temporary' part-time had increased slightly to 33 per cent, 'regular casual' had fallen slightly to 42 per cent, and 'irregular casual' and 'other' part-time had increased to 15 and 8 per cent respectively—all consistent, allowing for errors of sampling and measurement, with no change. However, the reported rates of coverage by superannuation, awards, long-service leave, study leave, training provided by the employer, promotion opportunities, overtime payments and worker's compensation had all increased. The reasons given most commonly for the current type of employment were 'personal choice' and 'for study purposes', followed by 'only type of work available' (ABS 6247.1, 1997).
Among the strange consequences of the definition of casual3 is the inclusion of very many people whose employment appears to be stable. In February 1993, 59 per cent of full-time and 55 per cent of part-time 'casuals' had been with the current employer for twelve months or longer. Stranger still, it will include numbers of people who are in fact self-employed because, if their businesses are incorporated or if, under some other arrangement such as a partnership they pay themselves a wage, then they are classified as employees and, hardly needing to award themselves paid leave entitlements, will fall into casual3. In August 1990, 23 per cent of casual3 wage and salary earners were 'managers and administrators', 'professionals', 'paraprofessionals' or 'tradespersons'.16
For whatever it may be worth, Figure 22 shows casual3 workers as percentages of all full-time employees from 1988 to 1997. The trend was rising but the peak in 1989, the sharp fall between 1989 and 1990 and the resumed rise thereafter—to 11.5 per cent for males and 9 per cent for females in 1997—are suggestive of cyclical factors. No explanation for the widening gap between male and female rates is apparent.
Figure 22: 'Casual' workers as percentage of all full-time employmees, 1988-1997
Source: ABS 6310.0
All figures are for August, no publication in 1996t
The not inconsiderable literature on 'casual' employment in Australia, concerned largely with disadvantages attached to the status, drew its conclusions from the flawed and ambiguous casual3 statistics, either in the ABS or supposedly identical AWIRS version, because there were no others. Even commentators as well informed and otherwise lucid as EPAC were liable to invest them with meanings they didn't really possess. For example, the indented quotation from EPAC (1996b, p. 22) above slips from casual1 to casual2 in the first sentence, and to casual3 within the first paragraph. Campbell (1996) goes a step further and writes that:
…labour market deregulation tends to facilitate an increased dispersion of wages and conditions [which] for particularly unfortunate groups of permanent employees…poses the threat of a degradation that may bring at least some of the conditions…down to a level normally associated with casual employment.
[Certain] evidence points to a deterioration of conditions among part-time permanent employees. Working-time conditions…traditionally associated with casual employment now appear to be spreading within this section of the workforce. [I]t appears…appropriate to describe the emergence of these degraded forms of part-time permanent employment as elements in a general process of casualisation, in the broad sense of the spread of casual conditions of employment.
Here, in what may be called 'casual4' employment, the term has become figurative or metaphorical, evoking the image of the men standing on a loading dock at dawn, hoping for a day's work, but applying it to very different people in utterly different situations.
It was becoming harder to believe that the statistical category, casual3, was an accurate measure of a particular form of contract defined in Australian industrial law, casual2, based in a category supposedly recognised in common law that, in turn, reflected the daily reality of the workplace, casual1. Wooden and Hawke, having used data of AWIRS 90 and AWIRS 95 to explain the relationships between worker characteristics, workplace characteristics and casual employment, admitted that casual3 was 'not without difficulty' because of the variability of casual2 conditions of employment. Discrepancies between ABS and AWIRS data suggested that 'the ABS measures may not be as reliable as widely assumed', because 'ABS estimates may be biased upwards, and increasingly so over time, as a result of treating managers of incorporated enterprises as employees. Moreover, these…difficulties can be expected to increase given the gradual shift towards individual- and enterprise-based bargaining arrangements' (Wooden & Hawke 1998).
| Semantics of casual employment: a summary | ||
|---|---|---|
Casual1 |
Work found or accepted according to the immediate need for labour of one, several or a series of employers. | |
Casual1A |
No ongoing relationship with employer. | |
Casual1B |
Ongoing relationship with employer, but employment intermittent. Includes many employees of temporary employment agencies. | |
Casual1C |
Supposed reflex of casual1 in common law, defined, if at all, in opposition to ongoing or 'permanent' employment. | |
Casual2 |
Employment designated 'casual' in Australian industrial awards, agreements and contracts of employment, derived historically from casual1 but usually defined, if at all, in opposition to 'permanent', or to 'full-time' and 'regular part-time', employment. Mostly part-time and characterised by payment of 'casual loading' on hourly rate and absence of various rights and entitlements attached to 'permanent' employment—although may be continuing. Casual2 contracts sometimes used during a probationary period. | |
Casual2A |
Variant of casual2 in which employment is ongoing—if subject to renewable fixed-term contract—but discontinuous. | |
Casual3 |
Approximation of casual2 used by ABS: employment for wage or salary without entitlement to paid sickleave and annual leave. | |
Casual4 |
Figurative or metaphorical extension, as in 'a general process of casualisation', meaning erosion of the rights and entitlements of 'permanent' employees. |
4.3 Examination and regulation of casual employment
The ABS did conduct its supplementary survey of forms of employment in August 1998, applying new methods of classification to the augmented information. The results confirmed that the standard measure of 'casually employed persons' was far removed from its archetype. The procedure was, roughly, to identify persons working for an employer for wage or salary, to set aside those paying themselves, to identify in the remainder those not receiving paid sick and holiday leave and then, among them, those who considered their employment to be 'casual' (ABS 6359.0, 1998).
As summarised in a Productivity Commission research paper, 23.2 per cent of employed persons covered by the forms of employment survey would have been classified as casual employees by the standard ABS definition (our casual3), but reclassification, mainly of owner-managers and persons who did not see themselves as being employed as casuals, reduced that figure to 17.7 per cent. ('Self-identified casuals' were 61 per cent female and 24 per cent full-time students aged 15 to 24.) Furthermore, 38 per cent of self-identified casual workers reported that their earnings did not vary from month to month and 76 per cent that they expected a fixed-term contract to be renewed or, in the absence of such contract, that they expected to be with the current employer or business in 12 months' time. The corresponding adjustment left 11.3 per cent of employed persons who were self-identified casuals with variable earnings or without implicit contracts for ongoing employment.
Self-identified casuals were distributed across industries but with the heaviest concentrations in 'retail trade' and 'accommodation, cafés and restaurants', and in lower-skilled occupations although, possibly in some contrast with the past, 'clerical, sales and service workers' greatly outnumbered 'labourers and related workers'. Four per cent—that is, 1 per cent of the whole sample—were paid by an employment agency. The stepwise process of classification hardly revealed a coherent or homogeneous category, but probably none exists. Why respondents described their employment as 'casual' or not is unknown (Murtough & Waite 2000a, and ABS 6359.0, 1998).17
In December 2000 the AIRC determined an application for variation of provisions of the Metal, Engineering and Associated Industries Award relating to casual and part-time employment (AIRC 2000). In February 2001 the Commission, pursuant to 'conferences and written submissions', issued an order amending its previous decision (AIRC 2001). Casuals, defined as persons 'engaged and paid as such', were still supposedly 'employed by the hour', and were excluded from award entitlements for 'personal leave…parental leave, public holidays, notice of termination,…remedies against unfair dismissal within the first 12 months of service, [and] severance pay'. The loading on the hourly rate was now 20 per cent.
Noting 'a drift toward more indefinite terms of employment', the Commission concluded that 'casual employment is often a continuing employment, until the need arises to interrupt or terminate it [and then] is terminated at will or on short notice, or is treated as expired if not renewed.' The actual pattern was neither a sequence of hourly engagements nor 'informality, uncertainty and irregularity of engagement'. Evidently 'casual and irregular engagements' were still needed, 'but in many instances long-term casual employment is based on habit, administrative ease, or probationary screening practices.'
However, the union's application to have casual employment restricted to 'short term and emergency work needs, or to work that cannot practicably be rostered to "permanent employees"' was rejected. The proposed conditions might be desirable but 'would be difficult to apply with any real precision' and although the award definition was circular it 'does have a clear meaning', and neither union nor employers proposed to remove it. The type of employment was used widely for a variety of legitimate reasons, catered for by the award over many years. 'It is far too late to reverse that acceptance.' And there was 'a body of evidence indicating that for some employees the casual employment and loaded rate régime is not unsatisfactory to their needs.'
The approach was to ensure as far as possible that casual contracts were entered into with the employee's informed consent, and that that a person 'who has been engaged by a particular employer for a sequence of periods of employment…during a period of 6 months shall thereafter have the right to elect to have the contract converted to [ordinary] full-time…or part-time…if the employment is to continue…' That period might be extended to 12 months by agreement, and the right of election was only to express a preference. The employer might consent to or refuse conversion, 'but not unreasonably', and 'an employee must not be engaged and re-engaged to avoid any obligation under this Award.' After conversion the employee might revert to casual status by agreement. Minimum daily hours of engagement would be set at three hours for ('permanent') part-time workers and four hours for casuals, although both might apply for shorter periods to accommodate individual circumstances. The casual loading would be increased to 25 per cent.
The Commission's implicit aim was to bring the award's casual2 status closer to the casual1 of the present analysis, by requiring the parties to ongoing engagements at least to consider the appropriateness of the classification. The amending order also introduced a novel category, still closer to casual1—the 'irregular casual employee'—who was excluded from the qualified right of conversion. 'An "irregular casual employee" is one who has been engaged to perform work on an occasional or non-systematic or irregular basis' (AIRC 2001, 4.2.3 (f)). 'Engaged' evidently referred to the sequence of engagements over the period in question rather than the terms of initial engagement, and the exclusion could provide the employer with 'reasonable' grounds to refuse conversion.
Little emerged about the composition of the casual1 workforce or its patterns of employment, and little more from the ABS forms of employment survey. Tentative conclusions might be expressed in the form of hypotheses:
- Casual1 employment persisted, but not as the typical form of any industry nor, probably, as both the principal activity and sole source of income of a substantial proportion of all employed persons. Many casual workers were students, and although the AIRC referred only in passing to 'linkages between employment and social welfare access', social security income tests had been relaxed specifically to encourage supplementation of payments by casual and part-time work. Distribution between industries and the frequency of variable earnings suggested that many were on-call workers.
- Much casual1 employment and much more casual2 employment was ongoing, and, although both might be temporary, much temporary employment was not classifiable as either.
4.4 Temporary employment, job change and job loss
Rates of change of employment might reflect either its insecurity or opportunities to leave less attractive jobs for more attractive ones. The term 'involuntary part-time employment' has been applied to people in part-time jobs who would prefer but cannot find full-time work. In August 1998, 38 per cent of male, 22 per cent of female part-timers and 45 per cent of 'self- identified casuals' working part time said they would prefer longer hours—but not necessarily full time. Still, most were apparently satisfied, preferences can be strong or weak, realistic or unrealistic, and a more reliable measure of dissatisfaction may be that 17 per cent of male and 7 per cent of female part-timers said they 'had actively looked for full-time work in the four weeks to the end of the reference week' (ABS 6203.0).18
A 1996 survey of part-time women workers in 'a large banking and financial organisation in Australia' found them to be 'a complex, variegated social grouping. [T]he majority of…the sample were content with their current part-time work arrangements' and 'the most common motivation for working part-time was to spend more time with dependent children'. Twenty per cent, who tended to be younger, primary or equal income earners with no children of pre- school age, could be regarded as involuntary part-time workers in that their current preference was for full-time work, and 'almost one in two part-time women workers expressed a desire for full-time work in the future'. However, for one-quarter of the sample, mostly married and secondary income earners, about two-thirds of whom wished to retain their present status, 'the decision to work part-time had been decoupled from dependent children'. 'There was no evidence that these women were "trapped" in part-time employment because of limited opportunities [for] full-time work' (Walsh 1999).
Statistics on actual changes in employment status confirm that male part-timers were relatively dissatisfied and female part-timers relatively satisfied with their hours of work. Figure 23 shows proportions of males and females unemployed at the labour force surveys of October in the years from 1990 to 1998 whose status had changed to full-time and to part-time work a month later, and the proportions whose status changed from part-time to full-time work. Males were consistently much more likely than females to go directly from unemployment to full- time work and, if in part-time work, to move into full-time.
Another indicator of occupational mobility is the number of jobs held in a given period. The proportion of respondents who, having been employed in the previous twelve months, had changed jobs at least once is shown in Figure 24 for the years 1980 to 2000. Male and female rates were very similar, and the main influence on both seems to have been the business cycle, with lower rates of change in downturns.19 The data presented in Figure 25 come from the same survey and seem to confirm that in the 13-year period both mobility and length of tenure varied cyclically, although the series is too short for any certainty.
McDonald and Felmingham (1999) studied disaggregated Labour Force Survey data from 1987 to 1996 and found that 'the general patterns in job mobility over the business cycle [were] similar across both job and personal characteristics.' However, 'Results suggest…a change in the labour market following the 1990s recession, characterised by higher incidence of retrenchments, stagnant rates of voluntary mobility, and consistently higher incidence of unemployment following retrenchment.'
Figure 26, on reported rates of retrenchment between 1988 and 2000, also suggests that something may have changed. The main influences seem again to have been cyclical, but when male rates fell and female rates stabilised in the 1990s they did not return to the levels of the 1980s, possibly indicating a structural shift.
If the various forms of non-standard employment really had become more common it might be expected that temporary jobs—where the contract is for a specified period or until completion of a task—would constitute an increasing proportion of the total. Figure 27 shows temporary or seasonal work as a proportion of all jobs terminated, except by retrenchment, from 1988 to 2000. Retrenchments were excluded on the assumption that job-shedding in recession might obscure any secular trend. The male trend seems to rise gently until stabilising in the 1990s and the higher female rates to show little change.
Student labour supply is of importance to temporary and seasonal as well as part-time employment. For example, in the year ending February 1998, 18 per cent of all such terminations were followed by return to study.
However, the accuracy, or at least the meaning of the statistics is uncertain. Apparently, the varieties of temporary employment that involve an agency as direct employer were enumerated incompletely, the volume of temporary placements by private agencies being much higher than the 10 000 estimated for the year ending in July 1994 (ABS 6245.0).20 When the relevant question was asked directly in the 1998 forms of employment survey, the estimated total currently 'paid by an employment agency' was 84 300 (ABS 6359.0). Not only that, but the figure of 270 100 terminations of 'temporary or seasonal' jobs in the year ending February 1994 must have been too low.
Information obtained from the main association of private agencies supplying temporary workers was that its members, who represented about 85 per cent of the industry, made approximately 372 000 placements in the 12 months to March 1995. A survey of group certificates indicated a median duration of seven to eight weeks. Demand rose in the phase of recovery from recession because employers, unsure it would be sustained, chose to recruit temporary rather than permanent labour. Recognised categories of temporary worker included women with children, students and people whose preferred lifestyles preclude continuous employment.21 Much of the employment in the shearing industry was organised in the same way, with contractors acting as the direct employers.22
Figure 23: Rates of change of employment status by sex, 1990-1998
Source: ABS 6203.0
Between October and November except 1992 (July-Aug)
Figure 24: Worked at some time in previous year, changed employer or business, 1980-2000
Source: ABS 6206.0, 6209.0
Note: Some changes of definition between earlier and later figures
Figure 25: Persons working in February: current duration and whether job change in previous year, 1988-2000
Source: ABS 6209.0
Figure 26: Ceased job in last 12 months, 1988-2000, percentage retrenched
Source: ABS 6209.0
Figure 27: Temporary or seasonal as proportion of all terminations, except retrenched, 1982-2000
