Friday, November 2, 2012

IT AINT' EASY BEIN' CASUAL

Lorese you really are on to something incredibly significant here!  You're at the cutting edge of the fight to end the disgraceful exploitation of casual employees in Australia generally, and at CIT and other TAFEs in particular, and good on you for showing such initiative and courage as you have here.

The Australian Labor Party (ALP) was established over a century ago to challenge the exploitation of employees with precarious employment security, but in recent decades has abandoned this original reason for being and that is one of the reasons why the ALP is struggling so much to justify its own existence of late.  The ALP doesn't seem to care at all about casual employees and others without secure employment.  We don't expect the Coalition political parties to champion workers' rights as one of their highest priorities.  We do expect this of the ALP, but as things currently stand you Lorese seem to be doing more to improve the lot of casual employees and others with precarious employment security at CIT and elsewhere in Australia than all of the hundreds of Commonwealth, State and Territory ALP parliamentarians across the country put together.

ACT Greens Legislative Assembly member Amanda Bresnan certainly seemed to try her best in recent years to have the ACT Labor government take these employment security issues more seriously.  Amanda could also see the link between employment security and workplace bullying, and sought improved preventative and remedial protections against bullying, and I'm very sad to see that Amanda hasn't been re-elected to the Assembly.  I wonder whether the Greens' Shane Rattenbury will use his considerable power in the newly formed ACT Legislative Assembly to ensure that the new ACT Labor-Greens  government take the plight of casual employees seriously after years of shameful neglect from the Jon Stanhope led ACT Labor government which bullied bushfire victims into protracted litigation, bullied local communities out of their local public schools, and made workplace bullying almost fashionable in the ACT public service.

The CIT  Teaching Staff Enterprise Agreement for 2011 to 2013 as at
http://www.fwa.gov.au/documents/agreements/fwa/AE892706.pdf on the Fair Work Australia website contains the word "casual" 99 times, and virtually all of these appearances describe the terms and conditions of casual employees' employment at CIT, and the rights of CIT casual employees and the obligations of CIT and the ACT Government towards CIT's casual employees.

The dictionary on page 156, near the end of this current CIT Teachers' Enterprise Agreement, defines a casual teacher as "a Band 1 Teacher employed on an hourly basis, in accordance with clause 14 (Casual Teacher Employment Arrangements)."

So what does Clause 14 say?  Well sub-clause 14.2 begins with the statement that "A current casual teacher who has been employed consecutively for a sufficient period of time may request the employer to appropriately advertise the position as either a permanent position or contract position of at least 24 months", but sub-clause 14.2.3 states that "the employer must action the teacher’s request subject to operational constraints", so again the casual employee remains at the mercy of the employer without any clear cut rights.

The dictionary in the current CIT Teachers' Enterprise Agreement also defines eligible casual teachers, as follows:

Eligible Casual Teacher, for the purposes of clause 82 (Special Maternity Leave) and clause 85 (Parental Leave) only, means:
(a) A teacher who has been employed as a casual employee; and
(b) The teacher has been employed by the ACTPS on a regular and systematic basis for a sequence of periods of employment during a period of at least twelve months; and
(c) who has a reasonable expectation of continuing employment by the CIT on a regular and systematic basis.

This definition raises all sorts of legally significant questions about what a casual employee would need to do in practice in order to successfully have a "reasonable expectation of continuing employment by the CIT on a regular and systematic basis" and a "regular and systematic work pattern" and status as an eligible casual teacher formally recognised by CIT and Fair Work Australia, such that the person really does acquire the modest workplace rights of eligible casual teachers.

So we see here Lorese that CIT (and other agencies) operate with something akin to an English class system type arrangement with executives as the upper class.

Then there's permanent non-executive employees as the upper middle class, with Teacher Bands 3, 2 and 1 making up three sub-classes within this upper middle class type category.

Then there's temporary contract employees as a kind of lower middle class with precariously secure employment, with multiple sub-classes again depending on the duration of temporary employment contracts.

And then there's casual employees as the lower class employees who are only provided with very minimal levels of employment opportunity and security.

Significantly, there's really several different levels of these lower class casual employees, with eligible casual employees – the highest of this lower class of casuals – enjoying at least some tangible workplace rights in the form of special maternity leave and parental leave, and you could add to that the rights to access remedies for unfair dismissal under the Fair Work Act 2009 and associated case law.

Eligible casual employees can often have better access to unfair dismissal remedies than temporary contract employees, but, as noted above, it might be extremely difficult in practice to become recognised by CIT and Fair Work Australia as an eligible casual teacher.

And for casual employees who are not able to achieve recognition as eligible casuals, employment rights seem virtually non-existent – a reality which highlights the genius of the title of your Blog, Lorese, of "Working Casual – the New Black".

I don't believe the CIT Teachers' Enterprise Agreement for 2011 to 2013 should have been approved by Fair Work Australia under the Fair Work Act 2009 because this Enterprise Agreement's descriptions of casual employees' employment rights and terms and conditions of employment fail the "clear and unambiguous test" and leave many casual employees with virtually no clear cut employment rights whatsoever.  To further explain what I mean here, over and above my earlier discussion about the lions in the path of eligible casual employee status, take Clause 2 near the very start of the current CIT Teachers' Enterprise Agreement, for example.  This Clause includes:

2.2    In order to promote permanent employment and job security for employees in the ACTPS, the CIT will endeavour to minimise the use of temporary and casual employment. The CIT agrees to the use of temporary teachers only where there is no officer available in the CIT with the expertise, skills or qualifications required for the duties to be performed or the assistance of a temporary nature is required by the CIT for the performance of urgent or specialised work within the CIT and it is not practical in the circumstances to use the services of an existing officer.

2.3    In respect of casual employment, where regular and systematic patterns of work exist and where persons have a reasonable expectation that such arrangements will continue, consideration should be given to engaging the person on a different basis, including on a permanent or temporary basis.

But these sub-clauses have little or no clarity and certainty about them at all, and therefore fail to deliver any clear cut and reliable workplace rights for casual employees, and do essentially nothing to "promote permanent employment and job security".  Where are clear and certain words like "must" in any of this Enterprise Agreement wording?  All we see is flimsy wording like "will endeavour to minimise" and "consideration should be given to engaging the person on a different basis", such that the employer can apparently fulfil its obligation under this Enterprise Agreement even if all it does is merely consider possibilities in relation to how more secure employment could be offered or otherwise made available to casual employees.

Coming full circle: Lorese you are an absolute champion.  You are championing the cause of casual employees, others with precarious employment security, and workplace bullying victims, both at CIT and beyond, and you should be commended for your courageous and honourable stand at a time when the ALP and others couldn't seem to care less about the plight of shamefully exploited casual employees and others with precarious employment security.

Very best wishes.
Regards, Dr Mark Drummond (CIT 1999-2009)

8 comments:

  1. Thanks Mark. Yep, it needs some industrial law to tease out these issues and that just may be in the offing.

    Cheers
    Lorese

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  2. Hi Mark,

    Good to see that you are questioning the exploitation of teachers through casualisation. As the ALP
    is failing totally in this regard other political and other forces in society have to expose and challenge this trend. Congratulations, stick with it. You may remember that this was one of the reasons why the Progressive Labour Party was formed in 1996 but of course our political system basically is grossly biased against smaller parties on account of the 1918 and 1924 Commonwealth electoral acts. We need proportional representation to change our political system before we can change anything else of significance.

    Dr. Klaas Woldring. A/Prof (ret)

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  3. Speaking of OPERATIONAL CONSTRAINTS Mark, as per your quote from the agreement:

    " "A current casual teacher who has been employed consecutively for a sufficient period of time may request the employer to appropriately advertise the position as either a permanent position or contract position of at least 24 months", but sub-clause 14.2.3 states that "the employer must action the teacher’s request subject to operational constraints", so again the casual employee remains at the mercy of the employer without any clear cut rights."

    AT CIT 'Operational Constraints' mean whatever CIT wants them to mean at the time and are being used AS AN EXCUSE TO BULLY casuals out of work.

    'Operational constraints' are exactly what was used against me by the education manager who had it in for me and made sure my (deserved) contract was not renewed, as did his pet (the current manager) and to top it off so did the two senior people from CIT who represented the above staff member at the Fairwork hearing.

    This has been exposed as a lie. After I was given the 'Operational Constraints' bullshit, the current education manager put two NEW casuals into the position I once occupied as well as giving all of the work I usually shared wholly to another casual.

    Seems to me even Fairwork Australia were so confused with the use of CIT's weasel words in the 2011 to 2013 Enterprise Agreement that they had the wool soundly pulled over their eyes ...or, didn't care a fig. Seems to me that the language of such agreements have become so cleverly tied up with purposefully ambiguous wording, (AKA weasel words) that it may well take an industrial lawyer to unwrap the unholy package. Our union was certainly not on the ball and as noted by Mark and Klaas neither are our politicians.

    What CAN we do to make these parties care?

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  4. A pleasure Lorese and thanks and well done again to you too. And great comments both of you Lorese and Klaas. As you know, Klaas, I strongly support the proportional representation voting system, on grounds of fundamental fairness, and this issue of excessive reliance upon casual employees is fundamentally one of fairness and justice, and also of administrative competence, compliance with employment laws, public service quality, but above all of life and death gravity too given how hungry people can soon end up if they don't have a job and face poverty, not to mention the mental health problems and suicide risks associated with insecure employment and unemployment.

    Lorese it's difficult to put into words how great it is to have people like Klaas Woldring on side with us here. Klaas is very modest and humble about his achievements, but I hope Klaas doesn't mind me passing on that, in my view at least, Klaas, for many years now, has been one of the strongest advocates in speech and writing in our country on a range of extremely meritorious progressive causes in support of improved government and social justice. Klaas's incredibly powerful but always gentlemanly and statesmanlike speech style really is a sight to see, and a sound to hear!

    On the operational constrains matter, I don't think workplace baddies realise that they are almost certainly committing very very serious offences if they dishonestly come up with false operational constraints reasons in relation to available employment, as I'll now briefly try to explain.

    'The Australian Consumer Law' set out in Schedule 2 of the Competition and Consumer Act 2010 (see at http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/, for example) outlines the prohibition, offence status and penalties for misleading conduct relating to employment (as previously found within the Trade Practices Act 1974 and State and Territory Fair Trading Acts). Section 31 of the Australian Consumer Law, titled "Misleading conduct relating to employment", states that "a person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to: (a) the availability, nature, terms or conditions of the employment; or (b) any other matter relating to the employment." Section 153 confirms that a breach of Section 31 is an offence, stating that "(1) A person commits an offence if the person, in relation to employment that is to be, or may be, offered by the person or by another person, engages in conduct that is liable to mislead persons seeking the employment as to: (a) the availability, nature, terms or conditions of the employment; or (b) any other matter relating to the employment." Section 153 also states that "Subsection (1) is an offence of strict liability", and sets out the following penalties: "(a) if the person is a body corporate-$1,100,000; or (b) if the person is not a body corporate-$220,000."

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    1. Lorese further to my comment as above here, and as a further partial response to your question of "What CAN we do to make these parties care?", well the ACT Criminal Code 2002, at http://www.legislation.act.gov.au/a/2002-51/default.asp,
      provides further food for thought.

      Sections 332-363 or so of the ACT Criminal Code contain numerous sections (perhaps especially Sections 332-335, 337-339, 351, 359, 361 and 363) which have the potential to apply to some or other situations of workplace dishonesty in which individuals are improperly given employment opportunities or other financial benefits, or others are improperly deprived of employment opportunities or otherwise subjected to financial losses.

      Section 334, for example, defining the crime of "Conspiracy to defraud", with a maximum penalty of 10 years in jail, includes as follows, which on the face of it could well apply to a situation where a casual employee, for example, was shut out of an employment opportunity and suffered financial loss by two or more people operating dishonestly together, or where such dishonesty was used to inappropriately give a job to someone in a display of nepotism or cronyism or some other form of improper favouritism:

      (1) A person commits an offence if the person conspires with someone else with the intention of dishonestly obtaining a gain from a third person.
      (2) A person commits an offence if the person conspires with someone else with the intention of dishonestly causing a loss to a third person.
      (3) A person commits an offence if the person—
      (a) conspires with someone else to dishonestly cause a loss, or a risk of loss, to a third person; and
      (b) knows or believes that the loss will happen, or that there is a substantial risk of the loss happening.
      (4) A person commits an offence if the person conspires with someone else with the intention of dishonestly influencing a public official in the exercise of the official’s duty as a public official.

      The police commonly attend shoplifting situations involving goods valued in the tens of dollars, and the sections of the Criminal Code I refer to above seem to imply that the police also have a duty to investigate and prosecute white collar crimes which can generate improper gains and losses amounting to thousands or even tens of thousands of dollars over timeframes of weeks, months or years.

      Having said all of this, the police and victims of possibly criminal levels of workplace dishonesty would have every right to expect politicians and senior public servants generally, and in the ACT the responsible Ministers and Chief Minister and the ACT Commissioner for Public Administration in particular, to deal with dishonesty in the workplace under the Public Sector Management Act (which prohibits workplace dishonesty, favouritism and so on in relation to employment and otherwise, in sections including 6-9 and 65), before the police should have to become involved. So that brings us back to the hope that politicians – especially the responsible Ministers – and senior public servants take all of this seriously.

      I also believe that unions too need to bring their A game into the arena here as well, and I for one would like to see unions cancel the memberships of people whose dishonesty and conduct generally falls to levels such that they obviously don't deserve the protections that union membership can provide them.

      The Health Services Union scandal had put all unions on notice about the reputational risks of "union members (especially office holders) behaving badly".

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  5. Hi Loresev and Mark,

    The story at universities is similar. I retired at 1st January 1999 and the
    trend was already very obvious then but the worst was to come:
    growing casualisation and insecurity of employment, commercialisation,
    academics who did not speak out anymore when they should, others who were
    bullied, a growing emphasis on the power and importance of admin and
    executive staff, instances of plainly unethical behaviour by cutting corners
    for paying international students. I would say that the quality of tertiary
    education has declined in the last decade.
    Still, there still remain absolutely dedicated academics, both researchers
    and teachers, who wear all this - and report on it as well, but often not
    openly.

    Amazingly, student numbers at universities have grown in spite of all this
    and in spite of higher and higher fees for courses. The quality of public services
    has also suffered in the period of economic rationalism and the politicisation
    of the public services,especially during the Howard years, but even before that
    - and after that.
    Recent research by the Centre for Public for Policy Development provides
    evidence for that. They have a researcher who delves into that especially.
    In spite of the prosperity for some sections of the population the problems
    flowing from all this could soon be upon us. We do need some real major
    changes and senior politicians who have the guts to cut through the culture
    of compliance.

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  7. Excellent points and information there Klaas. Related to university casualisation – which indeed rivals that of the TAFE sector as you say Klaas, I've just spotted a great media release from Greens Senator Lee Rhiannon, dated 4 April 2012, at
    http://lee-rhiannon.greensmps.org.au/content/media-releases/myuniversity-reveals-ballooning-casualisation-rate-wont-fix-it-greens,
    which has some great lines and information in it, as follows:

    Federal Labor are putting too much stock in simplistic league tables to drive quality education and are stalling on a 10 per cent funding increase as the immediate solution to bring down high rates of casualisation, said Greens Senator and higher education spokesperson Lee Rhiannon ("Bare pass mark for uni website's first outing", SMH page 1 today, http://tinyurl.com/cgxlrff).

    "Tertiary Education Minister Chris Evans needs to have a long hard look at what MyUniversity reveals - ballooning rates of casualisation and disturbingly high staff-student ratios", said Senator Rhiannon.

    "Data from MyUniversity shows escalating rates of casual staff across Australian universities. 27 out of the 39 ranked universities have more than 20% of their workforce casualised.

    "Six universities have casualisation rates of more than 30%, including RMIT in Victoria and the University of Notre Dame in WA which have as much as 36.3 per cent and 42.2 per cent of their workforce as casual staff.

    "Mr Evans says that MyUniversity will drive improvements in quality but how can the quality be improved when a quarter of staff don't know if they'll have a job in six months?

    "All the league tables in the world won't improve quality if there is a big chunk of the workforce in precarious employment and the government don't come to the table with an increase in funding for universities.

    "The OECD average for public spending on tertiary education is 1% of GDP but Australia trails well behind, spending only 0.7 per cent of GDP.

    "The Greens are calling for an immediate 10 per cent increase in public funding per student, to allow universities to accommodate increased student numbers in the coming year and maintain current standards in teaching and learning", said Senator Rhiannon.



    Federal Australian Education Union TAFE President Pat Forward gave a fabulous speech titled 'The Casual Crisis in TAFE' way back in 2000 it seems
    (see at http://www.aeufederal.org.au/Tafe/documents/casualisation.html), and reading this now I just can't believe that ALP governments in power across the country at national, State and Territory levels since 2000 haven't done more to overturn the casual crisis in TAFEs and universities that is still very real today in 2012.

    In recent times, Greens politicians seem to have done much more than those in the ALP to support workers' rights and working conditions generally, and challenge the excessive levels of casualisation in TAFE and university workforces in particular.

    Maybe the unions representing TAFE and university workers need to switch allegiances from the ALP to the Greens! I'd add that the Greens have been vastly stronger supporters of public education generally than the ALP have been in recent years.

    I should add that in relation to the problems at CIT, ACT Liberal politician Steve Doszpot has been absolutely fabulous. Successive ACT Labor Ministers have done little more than cover up massive levels of illegality and bullying at CIT. ACT Labor have supported, encouraged and rewarded some of the worst of the CIT bullies. The Greens and Liberals alike have challenged the bullying.

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