Human Resources

1

• Human Resources
• Information Sharing Session
• April 2007
• Casual Employment
• WorkChoices
• The Varied Australian National University
  Enterprise Agreement 2005 2008 (VANUEA)

2
Presenter

• Bradley Beasley
• Senior Employment Strategies Advisor Legal
• Telephone [phone]
• Facsimile [phone]
• Email Bradley.Beasley_at_anu.edu.au
• Address Human Resources Division Building
  10B,   Chancelry The Australian National
  University ACT 0200 Australia

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Overview

• Defining Casual Employment
• WorkChoices
• The Varied Australian National University
  Enterprise Agreement 2005-2008 (the VANUEA)
• Industrial Climate

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WHAT IS A CASUAL STAFF MEMBER?

• It is well recognised that there are two classes
  of casuals
• Those who are truly casual, those who have no
  continuing employment relationship and
• Those who are in a continuing employment
  relationship.
• Consequently it is the second class that will
  give grounding
• to the Australian Industrial Commission or the
  Courts to review such arrangments.1
• 1 Ryde Eastwood Leagues Club v Taylor 1994 56
  IR 385 pp 401-402

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WHAT IS A CASUAL STAFF MEMBER? continued

• Just because an employee is called and paid on a
  casual rate of pay prescribed under an Award or
  an Enterprise Agreement is not the ultimate
  determination.2
• The term casual employee is not well defined or
  as having a precise meaning, it is a colloquial
  expression3 and is not capable of exact
  definition.4
• Each case will be determined on all the facts and
  circumstances.5
• 2 Stoker v Wortham 1919 1 KB 499 pp 503- 504,
  per Swinfen Eady MR
• 3 Devine v Gediminas 2002 NSWIRComm 38 (12
  March 2002)
• 4 Ryde Eastwood Leagues Club v Taylor 1994 56
  IR 385 and see Starke J in Doyle v Sydney Steel
  Co Ltd (1936) 56 CLR 545 at p 551 and at
• 555, per Dixon J at p 555
• 5 Knight v Bucknill (1913) 6 BWCC pp 164-165
  per Hamilton LJ and see Marshall J of the
  Industrial Relations Court of Australia in
  Burcombe v
• Oldham and others Trading as the Royal
  Hotel 1996 71 IR 404. at p 406

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WHAT IS A CASUAL STAFF MEMBER? continued

• The Court will give consideration to
• The characterisation of work test
• The nature of the work
• The way in which the wages are paid
• The amount of the wages
• The period of time over which the employment
  extends
• The number of hours worked per week
• Whether the employee worked according to a roster
  system that was published in advance and whether
  the employment pattern was regular
• Whether there was reasonable mutual expectation
  of continuity of employment
• Whether notice was required by an employer prior
  to the employee being absent or on leave
• Whether the worker reasonably expected that work
  would be available
• Whether the worker had a consistent starting time
  and set finishing time.6
• 6 Devine v Gediminas 2002 NSWIRComm 38 (12
  March 2002) marking reference to the dicta in
  Ryde
• Eastwood Leagues Club v Taylor 1994 56
  IR 385

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WHAT IS A CASUAL STAFF MEMBER? continued

• The Court will give consideration to
• The characterisation of engagement test7
• No letter of appointment or any evidence of the
  formation of the contract of employment,
  although in the Higher Education Sector we are
  required to offer contracts arising out of the
  HECE decision
• The employers election to offer employment on a
  particular day or days and when it is offered
• The employees election to work
• The uncertainty about the period over which
  employment of this type will be offered.
• The informality, uncertainty and irregularity of
  the engagement. 8
• 7 Reed v Blue Line Cruises Ltd (1996) 73 IR 420
  at p 425 per Moore J of the Industrial Court of
  Australia
• 8 Devine v Gediminas 2002 NSWIRComm 38 (12
  March 2002) marking reference to the dicta in
  Ryde Eastwood Leagues Club v Taylor
• 1994 56 IR 385

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WorkChoices

• S 638 of the Workplace Relations Act 1996
  identifies workers that are excluded from running
  an unfair dismissal case, for example they
  include employees
• employed for a specified period of time, for a
  specified task or seasonal employees
• serving a qualifying and/or a period of
  probation
• a casual employee, etc.
• Subsection 4 defines a casual employee as an
  employee engaged for a short period unless
• the employee is engaged by the employer on a
  regular and systematic basis for a sequence of
  periods of employment during a period of at least
  12 months and
• the employee had a reasonable expectation of
  continuing employment but for the employer
  terminating the employment.
• Subsection 5 then needs to be taken into account
  it is related to subsequent regular and
  systematic employment, effectively if the
  employee is reemployed without a 3 month break in
  service they will not be considered a casual
  where the total length of service for the first
  and second periods equate to 12 months or more
  employment.

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The VANUEA

• Circumstances for employing casual staff no
  longer apply, the old clause 12 of the ANUEA
• Casual employment means employment on an hourly
  basis which is normally for an irregular pattern
  of hours on an intermittent or irregular basis,
  Schedule 1.2.4
• If the staff member is engaged regularly or
  systematically1 for a sequence of periods of at
  least 12months, if it were not for the
  termination of their employment, the staff member
  would have had an expectation of employment,2
  they will not be considered to be a genuine
  casual
• In light of the above the staff member is
  entitled to seek conversion to non casual
  employment in accordance with existing
  arrangements, see clause 13.1.3 and Schedule 7 of
  the old ANUEA
• The staff member may seek to have a decision
  reviewed not to convert their employment, clause
  50.2.6
• 1 Ryde Eastwood Leagues Club v Taylor 1994
  56 IR 385 pp 397-398
• 2 S638 (4) of the Workplace Relations Act 1996

• General staff are employed to work for no less
  than 3 hours unless otherwise specified in the
  VAUNEA, clause 21.3.1
• Are paid a 23 casual loading, clause 17.4.3
• Are paid the casual loading in lieu of all paid
  leave entitlements (including Long Service
  Leave), penalties and loadings, unless otherwise
  specified in the VAUNEA, clause 17.4.1
• General staff are entitled to be paid overtime if
  directed to work it by their supervisor, Schedule
  3.2.3 however they are not paid the casual
  loading, Schedule 3.2.4.
• Are to be paid within 22 days of submitting a
  valid and completed claim for payment, clause
  17.4.4
• Are entitled to, and are required to give 1 hours
  notice to terminate their Employment Agreement,
  clause 52.1.
• Note The casual provisions are addressed by
  clauses 13.1.1, 13.1.3 15.2, 17.4, 21.3, 25.6,
  26.3, 33.1, 43.1, 50.2.6, 52.1, S1.2.4, and
  Schedules S2.3, S3.2.3, S3.2.3, S3.2.3(c),
  S3.2.4, S3.3.7, S4.4.2.

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Conversion Process

• Conversion Process for Casual, General Staff
  Members are still addressed by Schedule 7 - of
  the Australian National University Enterprise
  Agreement 2005-2008.
• The staff member may apply for conversion
  preceding 12 or 24 months employment, as long as
  they have been working 50 of a full-time
  equivalent.
• There are grounds to refuse conversion, if
  refused the reasons must be put in writing.
• The staff member may appeal the decisions not to
  convert them within 10 days of the decision being
  made.
• The staff member cannot reapply for conversion
  for another 12 months.

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Conversion Process

• Conversion is supported by the Universitys
  Delegations of Authority at 3.32F and they are
  not transferable.
• ANUO 4 and below Dean, Director, ANUO 4 and
  above CC and all staff ADHR, DHR, VC.
• The University's Delegations (HR) may be found at
  the following website
• http//info.anu.edu.au/OVC/Delegations/By_Category
  /_delegations_files/humanresources.asp

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Industrial Climate

• The Group of Eight Industrial are currently
  monitoring the actions of the NTEU in light of
  their casual staff campaign. Non of the G08
  members have had claims made against them at this
  stage. The NTEU state
• A key priority of the NTEU is to improve the lot
  of casual employees. In 2007-8, NTEU is running a
  national campaign on casual academic employment
  with these two objectives improving conditions
  directly and ensuring universities provide
  opportunities for casuals to attain more secure
  jobs. http//www.nteu.org.au/bd/anu14815

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Questions ?
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