The Systematic Mistreatment of Casual Workers

* This is an article written by Chloe Byrne, featuring quotations from myself and others on casual work and employment laws.

Casual employees within the retail and hospitality sectors are often systematically exposed to wage theft and mistreatment by employers, industry sources have said.

An expectation of working unpaid hours outside of rostered shifts has been found to be a commonplace practice within workplaces and was frequently under-reported.

Unpaid duties included arriving before a rostered shift to complete cleaning tasks, and staying later to count money and close registers.

One in four Australian workers are classed as casual in 2018, the highest statistic since 2007.

The largest growth in casual employees in Australia occurred in the decade between 1988 and 1998, where the sector grew by 69 per cent, setting Australians up for decades of inequality and mistreatment.

Former fashion retail manager Kirsty Delaney said she often received directives from corporate management to persuade casual staff to perform tasks outside of rostered hours.

“Public holidays were never paid to me or my casual employees and we regularly worked outside of hours and were never paid for them,” Ms Delaney said.

“I would spend hours outside of paid time setting up sales and visually merchandising the store.

“I was instructed to make my casual staff do the same, knowing I would be unable to pay them for their time.”

Ms Delaney said a fear of losing her position prevented her from taking action or seeking assistance from a union or Fair Work representative.

“My casual employees received extremely low pay and never had an opportunity for a pay rise,” she said.

“I would be approached by casual employees regarding their rights but would be unable to help them given my own unsecure position within the company.”

Casual positions can be temporary, have irregular hours, and can provide little assurance of a long-term career.

In 2016, retail department store Myer employed more than 2,000 casual employees in a bid to provide flexibility to roster employees according to sales trends, showing preference for those already in less temporary positions.

Minister for Industry and Skills David Pisoni said the government was concerned by the issue of wage theft, but action needed to be taken at a federal level.

“The legislation is there—it is illegal to force people to work without paying them, and employers should not be doing it,” Mr Pisoni said.

“I think what happens is people who are not happy find another job, but they walk away and leave the situation unreported.

“If the Fair Work Commissioner is not aware of it, they cannot act on it.”

Mr Pisoni said a culture change within the industries was required to improve workers’ conditions.

“[Casual workers] should not agree to be working for free, and it is illegal for employers to even suggest that that is part of the arrangement,” he said.

“Kids pay their union dues and they should take these issues up with the union, but I am concerned that there’s a relationship between the fast-food chains and the unions.

“There needs to be an easier mechanism for bad practices to be reported.”

One third of casual employees are not paid hourly loading entitlements in lieu of holiday and sick leave, according to the Australian Bureau of Statistics.

The highest rate of casual employment occurs in the accommodation and hospitality sectors.

Shop, Distributive and Allied Employees Association representative Sean Hill said workers across these industries were typically from vulnerable backgrounds.

“Retail workers are highly casualised, younger specifically, and overwhelmingly female,” Mr Hill said.

“It is a self-fulfilling prophecy when people are discriminated against because they are casualised, and they are casualised because they are discriminated against further.

“I think when an employer looks to casualise a workforce or a worker, what they are looking to do is to divide and conquer.”

Mr Hill said the issue of wage theft was a problem the Australian Capital Trade Union (ACTU) was currently tackling through their Change the Rules! campaign.

“The industrial relations system that we operate under in this country is fundamentally broken,” he said.

“We need to make sure that we criminalise wage theft.

“Just because you are an employee, does not mean that a company should be allowed to steal from you and effectively get away with it.”

The ACTU campaign claims tax exemptions for large businesses have resulted in an unfair balance of power.

Employees working on a casual basis were less likely to earn a consistent wage and reported low flexibility and stability in workloads, according to the ABS.

Casual employee Luke Radford said he was made to feel replaceable within his role at a fast-food restaurant.

“The bosses tried to bar us from talking to the union, so without a coordinated series of complaints by multiple employees, [the union] could not really do anything,” Mr Radford said.

The Fair Work Act 2009 stipulates basic rights for employees, but the unwritten agreements between some casual workers and their employers can make laws difficult to enforce.

The act was amended in 2012 to include provisions for long-term casual employees to apply for part-time status.

Adelaide University Law School PhD candidate Joshua Krook said the lack of regulation around casual employment created an unfair workplace dynamic.

“Employers have a lot more power in these situations to ask [casual employees] to do things that they otherwise would not be able to ask them to do,” Mr Krook said.

“I do think there is a general culture developing with people remaining silent when they really do need to be speaking up.

“One of the biggest problems in South Australia is the rise in unpaid work and unpaid internships.”

Students undertaking internships are not required to perform the duties of a regular employee without remuneration, but the competitive nature of graduate opportunities often leads to unpaid work experience.

Mr Krook said high rates of unemployment led workers to accept a condition of exploitation by employers.

“There has been a lack of regulation on casual work specifically,” he said.

“You do get situations now where people are unpaid for three or six months at a time, and those are completely illegal situations.

“The government should have tighter laws around internships and unpaid work, and they should put more resources into enforcing laws in these areas.”