Second generation restaurateurs Pasquale and Joe Trimboli have started wondering if after 25 years in business they should just close their family’s three Canberra restaurants and find new careers.
After struggling through a summer of bushfires and then shutting their doors due to COVID-19, the brothers were looking forward to diners returning to their tables as restrictions began to ease. But after a court ruling which has changed the definition of casual employment, they wonder how much more their businesses can take.
The Federal Court on Wednesday overturned the common understanding of casuals as workers who get paid a 25 per cent loading and not entitlements of permanent staff, such as annual leave.
The ruling said casuals who work regular, predictable shifts are now entitled to be paid annual leave, personal/carer’s leave and compassionate leave in a decision which means the nation’s employers are liable for billions of dollars of backpay.
Many employees, particularly in the hospitality industry, liked the flexibility and additional leave loading that comes with being a casual, Joe Trimboli told The Australian Financial Review, “and they select that path” despite the fact they may regularly get three to four shifts per week.
“A uni student who’s living on campus and really needs the money to get by every week, they’re not going to worry about getting holiday pay and whatever because they need the money this week … that’s why they tend to go down that path.
“You’re not losing overall because you’re getting paid that loading,” Joe said.
The ruling comes after the nation’s unemployment rate in April jumped to 6.2 per cent as a record 594,300 people lost their jobs and the number of people on the federal goverment’s JobKeeper program topped 6 million.
Employers warned yesterday that the ruling will increase the risk of widespread job losses once the JobKeeper program ends in September.
Former David Jones chief executive Paul Zahra, now head of the Australian Retailers Association, said the high number of casuals in the retail sector meant it was particularly vulnerable and said the court ruling could stop the sector re-opening.
Industrial Relations Minister Christian Porter said it created uncertainty about employment at the worst point in time for business and the government would move to quickly consult with employers and unions on a solution.
“What do you do? How do you factor that in on top of what’s been going on? No turnover, no real dollars in the bank at the end of the day, and then you get hit by this,” Joe said.
“It’s going to be a disaster,” Pasquale said.
With about 40 to 50 of the staff across their three restaurants employed as casual workers, Pasquale said the retrospective requirement of the federal court’s decision “is going to be a bit of a grey area”.
“As far as numbers go, about 80 per cent of our floor staff would fall into the bracket of being casual, and that’s where we would have an issue,” he said.
“Anyone can look at the roster and say, well, hang on, that guy’s been working, or this girl’s been working with you for the last 12 months, getting three to four shifts a week even though those shifts vary.
“It’s more a question of the double dipping. Why are they getting a loading, as we know of 25 per cent, that still translates through to all the benefits of a full-time employee?”