|Issue No 90||30 March 2001|
Employers Told: Casual Workers Have Full-Time Rights
By Mark Morey
A decision by the Industrial Relations Commission of New South Wales has placed all employers on notice that casual workers have full-time rights and will not be exempt from seeking unfair dismissal.
In a recent case brought by the Shop, Distributive and Allied Employees' Association (NSW) a Dymocks Parramatta sales assistant had been working to a published weekly roster for 11 weeks found she was no longer rostered, even though Dymocks was advertising for casual employees. She had been working between 4 to 15 hours per week. Dymocks told her she would no longer be rostered on. Upon contacting Dymocks, the Shop, Distributive and Allied Employees' Association (NSW) was told that the young woman's employment had been terminated.
Dymocks argued that under the Industrial Relations (General) Regulation 1996, the young woman was not able to seek unfair dismissal because of clause 5B(1)(d) as she had been employed for a period of less than 6 months service. The 5B provides exemptions from unfair dismissal provisions. Clause 5B(1)(d) states:
(d) employees engaged on a casual basis for a short period except employees who:
(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and
(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer.
However, the IRC found that this proposition did not support the exclusion of a casual employee, employed for less than 6 months. The IRC stated "the Regulation has not done, and what we do not think it could do, is to say that engagement on a casual basis for a period of less than 6 months is necessarily engagement for a short period". Thus, it is erroneous to believe that any casual worker with less than 6 months service is excluded so as to remove the jurisdiction of the Commission to determine a claim for unfair dismissal.
As the New South Wales Workforce becomes more casualised this decision is significant victory not only for the Shop, Distributive and Allied Employees' Association (NSW) but also for all casual workers. It is a clear precedent that will assist all unions in their coverage of casual staff members and reinforces that casual workers are entitled to more than casual rights in their workplace.
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Last Modified: 15 Nov 2005