Andrew Douglas: What is the main topic now, which is the the new pathway that came to legislation around casualization, where casual employees can make application in disputes to be made permanent. And we’ve got a great case, which is Bacon Macquarie Uni, and you’re across this, Tom. What are the key facts in this?

Tom Daly: The employee was a casual teacher at the university who taught consecutive
semesters, first semester, second semester. Had been doing that for about three years and wanted to assert that he was a permanent employee of like a part-time, I assume. I think it was part-time. The employer said that they couldn’t do that because there was a clause in the EA which said that you can’t be a part-time employee unless you also partake in or you contribute like

Andrew Douglas: Research.

Tom Daly: Leadership or some other aspect other than just teaching the classes. And the, was it the Fair Work Commission said that

Andrew Douglas: Yeah, it was.

Andrew Douglas: And I think there’s some interesting parts when we get into this. And the interesting part, I think, when you get into it is, he did have, and remember there’s Rosetta and all these earlier cases, talk about the fact it doesn’t have to be repeated every week identically. There must be a system which demonstrates future predictability of employment commonly seen in rosters and a future expectation of continuing work. Here, he’d been allocated the same subject in the following semester. He taught in a regular and predictable way for regular and predictable hours.

Tom Daly: For a few years.

Andrew Douglas: And I think it was a few semesters, might not be as long as a few years, but you –

Tom Daly: No, it’s 2023 to

Andrew Douglas: Oh, there you go. For quite some time. And as a result the commission said, look, an enterprise agreement can never overrule a national employment standard. So we’re dealing with a national employment standard 66AAB. It applies, full stop. Don’t care what the enterprise agreement says. This person’s clearly a permanent and supported the permanency. I think for everyone who’s out there, you got to understand that casualization is not that you can say to somebody, look, we’ll say Tom’s at university. Tom, during working time, school time, you can just do one day a week, we’ll work around your studies. On holidays, you work full-time. But you see, there is a mechanism of regularity that sits within there, and that makes us systemic. But you can always know when you’re working and you know that next year there’ll still be a job. And you went through all this process when you worked with us, and you were a casual.

Tom Daly: My rights?

Andrew Douglas: Looking back on it, probably not right. I’m expecting the claim fairly shortly. But my point about it is most people misunderstand casual employment. Now, the way to get around that is simply get Tom to say, “I don’t want to be a permanent employee,” and sign aways and told him to be permanent, which he can do. He can say, “I want to be casual.” But nobody does it. And the fact is that most people are happy to be casual, not in a university environment where you don’t have permanency, and tenure is sought after. But in most environments, people prefer to be paid the 25% extra and forego the leave entitlements. So in all manufacturing, if you offer to people casual, they take it any day of the week. So interesting, anyway. Good leading case on at the moment. Very interesting. Let’s go to the case study. Tom, do you want me to read this because you’re-

Tom Daly: I’ll read it out and you can commentate. Derek worked at HipHi-Fi as a salesman. He also worked casually. He was a unit student and HipHi-Fi allowed him to work around his in-person lectures and tutorials. But he always worked three days of six hours, although on different days based on his studies. And HipHi-Fi had a roster that identified those shifts a month in advance. He had worked at HipHi-Fi for over seven months. He spoke to his union and they suggested that under the employee choice pathway under the award, he should apply to be permanent. Dirk wrote to HipHi-Fi seeking to have his role made permanent within 21 days.

HipHi-Fi consulted with him, explained their reasons, and then wrote back explaining that in one month, in January, there would be no work and that there is seasonal variation in work availability. In January, February, and March, sales invariably plummeted to 30 to 40% of budget, and casual employment was reduced back to one day a week to support them, but there would not be three shifts. On the 2nd of January, after a terrible Boxing Day sales season, he and three other casuals were told that there would be no more shifts in the foreseeable future. HipHi-Fi used the last on, first off test. You’re going to have to explain that one.

Andrew Douglas: So that means the last person they employed is the first person to go. So most recent gets chucked.

Tom Daly: Yep. HipHi-Fi had been cautious about communicating the process to Dirk from the moment he had raised the request for permanent employment. They had emails, contemporaneous notes, and letters setting out why he was casual, the choices they were making, the business reasons, and the methodology. Dirk brought a generative protections claim alleging that he was terminated for an adverse action based on a workplace right to seek permanence, and that this was a prohibited reason.

Andrew Douglas: There you go. In the case study, I put all the general protection things. So the first question was, was Dirk a casual employee or a permanent employee at the time making the request? So when you go to 66AAA, and then the ABACAD everything that comes out of it. One of the things is if there is a genuine reason for being casual, or there are things which will substantially affect the nature of employment over 12 months, then you can reject an application for permanency. And in this case, there is an overwhelming argument to say, no, there is not foreseeable future maintainable work that’s standing in front of you. There will be changes. They happen every year. We’ve told you about it. We’ve done the process. We’ve consulted as obliged. Therefore, no, he would not be a casual. Permanent, sorry.

Tom Daly: Is it the reasons have to be from the employer side or the fact that he had unit and all that is not relevant?

Andrew Douglas: It doesn’t matter, really. It means that, yeah, it means that it’s going to be more hardly fought, but no, the real issue is whether there is that change coming in the future within the next 12 months. That’s the key issue.

Tom Daly: Would Dirk have, a would Dirk have good general protections claim when he lost his job?

Andrew Douglas: What do you reckon?

Tom Daly: My gut feeling is-

Andrew Douglas: There’re the answers there.

Tom Daly: I know. I want to have a crack. I think… Solidarity with the audience. I think, I think there’s a good reason for why they dismissed him based on the fact that they had sales, they’re projecting sales to plummet. They just had a bad, you know, a bad season. So there’s a good reason there for them to sort of reverse that onus.

Andrew Douglas: Yeah, so let’s work through it just in the three elements. Did he raise something was a workplace right? Did he raise an entitlement under the Fair Work Act to be made permanent?

Tom Daly: Yeah.

Andrew Douglas: Was he, did he receive treatment that was adverse? Whether it’s related or not? Yes, he lost his employment. So the first two elements are there. The question is, and this is the reverse onus part, the employer has to demonstrate that no part of the decision making related to that protected right. And here you can see quite clearly they’d set out a structure all the way through saying, “No, look, we can’t do this and these are the reasons why.” And then there wasn’t enough work, and then they terminated because there wasn’t enough work. So no general-

Tom Daly: Clear sort of.

Andrew Douglas: And it shows you why when you’re dealing with people who are at risk of bringing claims, and you can see them, they’re red-letter people. They’re warning you. And if you look at the people we get on the other side of matters, because we only act for employers, you could see it coming. And what you do is you behave well, you behave kindly, but you make sure you protect your decision makers so they don’t know about the issue that’s there. And you methodically and reasonably go through the process, she’ll always be safe. So Tom, that’s it. That’s a nice, good game’s a quick game. We’ve done it today. Thanks for your help today. I really appreciate you jumping in. Thanks, Thu y, for coming in sick as a dog and not coughing. No, no need to cough now just to show you’re sick.