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ACAPMA PETROLEUM INDUSTRY REPORT CASUAL ISSUE RESOLVED BUT MORE TO DO ON IR Business owners can now rest easy over the employment of casuals, provided they keep paying them the correct wages, but the IR system needs to be further simpli ed. By ACAPMA CEO Mark McKenzie. O ver the past nine months, ACAPMA has been involved in the policy conversation about the need for urgent reforms to Australia’s industrial relations (IR) system. Our involvement extended to direct participation in the casuals working group, one of five IR working groups established by the federal Attorney-General to promote consensus between unions and employers on IR reforms. As a member organisation of the Council of Small Business Organisations Australia (COSBOA), ACAPMA participated in these discussions as the delegated representative for COSBOA, given our industry’s exposure to employment of casuals. We also liaised with the Business Council of Australia on potential changes to the mechanisms for the making of enterprise bargaining agreements (EBAs). To say that the working group discussions were challenging would be an understatement, although not, perhaps, for the reasons you would normally suppose. One of the most astonishing things that occurred during the working group process was that this disagreement was not simply due to traditional differences between employer groups and unions. The disagreement was just as intense between different employer groups. At the heart of it all was the federal government’s desire to simplify an IR system that is clunky and complicated. Many of the current provisions date back to the 1970s and are simply not fit-for-purpose for an economy that operates on a 24-hour basis, is increasingly being reshaped by the digitalisation of commerce, and is being influenced by changing consumer behaviour due to the emergence of the share economy (ie, where people share services rather than buy assets, such as a car). Our goal was to seek sensible resolution of the uncertainty surrounding the employment of casuals. This uncertainty had been created by recent decisions in the Federal Court suggesting businesses that had employed casuals in the past could be liable for years of backpay to casual staff for leave entitlements, despite having paid a casual loading instead of these entitlements. With casuals being an essential part of the workforce in our industry, it was vital that this issue be resolved without any risk of employers being required to pay backpay (where they had paid casual loadings in accordance with IR laws in good faith). Ultimately, the casuals working group landed on a definition that was rolled into the government’s infamous IR omnibus bill, together with proposed changes to four other areas of the IR system (ie, workplace flexibility in awards, EBAs, greenfields arrangements for major projects, and criminal penalties for deliberate wage underpayment). But disagreement about the definition of casuals, and indeed the other four elements contained in the bill, continued after the bill was tabled in the Australian parliament. The result of the parliamentary discussion on the five elements of the IR bill is now a matter of history. The debate was ugly, with the unresolved disagreements being promoted into the parliament and the crossbench senators not really knowing which way to vote. In the end, only one of the five reforms was passed by the parliament. Thankfully, those reforms were the provisions relating to casual employment. "While the whole process of the recent IR reforms has been messy, the passing of the casuals element of the IR bill at least means that businesses are now protected from double-dipping claims by casual workers. " The decision means that if your business was ever to receive a claim from a casual that they should have been classified as a permanent, then, if they’re successful, any backpay associated with this claim would be offset by the 25 per cent loading that they received as a casual. In nearly all circumstances, this offset would mean that no backpay would be payable. (The only circumstances where backpay might be required is if your business had been operating under an EBA, but even then, the amount would be small). So, while the whole process of the recent IR reforms has been messy, the passing of the casuals element of the IR bill at least means that businesses are now protected from double-dipping claims by casual workers. That is a sensible outcome for all, and means that business owners can now rest easy so long as they are paying correct wages to casuals in the future. But we must not stop there. The IR system must be further simplified to make it easier for businesses to grow and prosper in a post Covid-19 Economy. About Mark McKenzie Mark holds formal qualifications in engineering (BEng) and business (MBA). He has 30 years of varied experience in private- and public-sector roles, with much of this time spent addressing strategic issues and public policy for the road transport, conventional fuels, and alternative fuels industries. Email him at markm@acapma.com.au or go to acapma.com.au. About ACAPMA First established in 1976, the Australasian Convenience and Petroleum Marketers Association is the peak industry association representing the interests of most businesses that comprise the downstream petroleum sector in Australia. Membership of the association ranges from large corporations to small family- owned businesses, including fuel wholesalers, fuel distributors, fuel retailers, petroleum contractors and petroleum equipment suppliers. For further information about the nature of petroleum marketing in Australia, contact the ACAPMA Secretariat on 1300 160 270, or email assist@acapma.com.au. 64 CONVENIENCE WORLD MAR/APR, 2021