The “permaflexi” category was employers’ compromise response to the broad ramifications of the Federal Court’s Workpac v Skene precedent, which grants regular casuals permanent entitlements, such as paid leave and redundancy, even if they already receive 25 per cent loading in lieu of those benefits.
In a letter to Fair Work president Iain Ross, the ABI said it and NSWBC have been “vigorously pursuing the case for legislative change” to ensure employers can continue to engage casuals as they have in the past.
“This withdrawal is on the basis that a legislative change is being advocated for by ABI and NSWBC and that such a change should and therefore will be implemented in the near term to address the impact of Workpac,” the letter said.
ABI Sydney managing director Luis Izzo told The Australian Financial Review that the chamber was “quite confident” the government will intervene if the current court challenge against the Workpac precedent fails.
He cited employer estimates that the Workpac precedent affects about 60 per cent of the 2.6 million casuals in the economy and would expose businesses to up to $8 billion in backpay.
“The government will have no choice but to act,” Mr Izzo said.
“If in the very unlikely chance the government does nothing and the Workpac v Skene decision stands as is, then the chamber will refile its claim and file it in relation to a number of awards.”
The NSWBC had wanted its “permaflexi” category in the social, community home care and disability services award, which has a lot of part-timers, and would have sought the same in other industry awards if they had been successful.
The new type of worker would have received permanent entitlements but could have been rostered on a flexible basis in return for 10 per cent loading and minimum weekly hours.
However, since the claim was first flagged in February, Industrial Relations Minister Christian Porter has announced a review of industrial relations laws that will include considering the Skene decision’s impact on business.
NSWBC chief executive Stephen Cartwright said that “a legislative solution was always our first preference. The government’s circulation of discussion papers has given us some real hope that, for the first time in a long time, meaningful workplace relations reform might be available in the near future. One of these relates to casual employment.”
Australian Council of Trade Unions secretary Sally McManus said the permaflexi concept would have created another way to remove workers’ job security.
“We are glad the NSWBC has withdrawn their attempt to undermine jobs and wages through this scheme,” she said.
“But if they have convinced Scott Morrison and his government to try legalising this exploitation through another means, they should be aware that we will continue to oppose them whatever the forum.”