Working Casual – The New Black

by Mark Drummond (CIT 1999-2009)

Canberra Institute of Technology employs almost half a casual workforce. These casual teachers are the most vulnerable to bullying. This site aims to keep the pressure on the bullies.

”We’ve been saying to staff very clearly that we want them to speak up, that the RED framework gives you a language to speak up and framework within which you can speak up, and so if we were investing this effort and not seeing a tip-up, we’d be concerned.” (Commissioner Andrew Kefford, October 3, 2012 quoted in an article by Noel Towell Canberra Times).

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We hear daily of the increasing casualisation of the workforce particulary in teaching. What we do not hear, is that anyone is doing anything about the loss of rights associated with it. Commissioner Mark McCabe in his report into bullying at Canberra Institute of Technology said that keeping a casual workforce was one of the very ways CIT bullies.

AT CIT teachers have been ‘kept on a leash’ of casual contract work for up to 9 years then got rid of when they complained or otherwise had disagreements with fulltime employees in a position to affect their employment.

Many casual teachers have had no luck with approaches to FairWork Australia either … did you know that only fulltime workers have any protection under unfair dismissal laws?

Now is the time to write both to Fairwork Australia and to your union and ask them WHAT they intend to do to make sure that long term so called ‘casual staff’ dismissed summarily with no solid reason are offered the protection that fulltime workers (and bullies) enjoy.

Casual CIT teachers in the ACT please write to Mike Fitzgerald the CIT organiser at: MFitzgerald@aeuact.asn.au

Also write to Worksafe Australia: http://www.worksafe.act.gov.au/health_safety

Email: worksafe@act.gov.au

For complaints of bullying or other unprofessional behaviour as a student or a staff member including sexual harassment write to the Commissioner for Public Administration Andrew Kefford: andrew.kefford@act.gov.au

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.

 

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