The New South Wales Business Chamber (NSWBC) and Australian Business Industrial (ABI) have applied to the Fair Work Commission (FWC) for the designation of a new class of employee: “flexible ongoing”. Under this proposal, the casual loading would be cut from 25% to 10%, with employees able to accrue leave at a pro-rata rate but only rostered on when business requirements demanded their labour.
This is a response to the Full Court of the Federal Court of Australia decision in WorkPac vs Skene. In that decision the Court held that a WorkPac employee who had been designated as casual was, in fact, a permanent employee and was thus entitled to the associated benefits including sick leave and annual leave.
This paper outlines the context within which the flexible ongoing proposal arose, the WorkPac vs. Skene decision.
It examines the nature of casual work in Australia and provides an analysis of how the proposed flexible ongoing category would affect workers in Australia.
We analyse the potential benefits and risks for workers should the flexible ongoing category be introduced, look at potential benefits for employers and ask whether the NSWBC may have had other motivations for its proposal.
We conclude that the flexible ongoing proposal is a solution to a problem that doesn’t exist. The NSWBC appears to have opportunistically used WorkPac vs. Skene to justify the introduction of yet another avenue for employers to reduce fixed wage costs and shift business risk onto employees by further casualising the workforce.
