Employers hail Visy victory in casual labour case

The Australian, January 23, 2018

Employers have hailed a Fair Work Commission ruling upholding a refusal by Visy to convert ­labour hire workers to permanent full-time employment after three months.

A commission full bench rejected an appeal by the Australian Manufacturing Workers Union of an earlier decision upholding Visy’s refusal to make two labour hire employees permanent.

ACTU secretary Sally McMan­us said the decision showed how “hopelessly broken our workplace laws are”, renewing the union movement’s push for changes to the Fair Work Act.

Visy and the AMWU struck an enterprise agreement that contained a clause stating casual employees should be offered full-time permanent employment if they were to be engaged beyond a continuous full-time period of three months.

Casuals were defined as either direct employees or workers engaged via a labour hire company to do process work.

Visy later refused to offer full-time employment to the two ­labour hire employees who had worked continually at a Visy site for three months.

In the original decision, Commissioner Sarah McKinnon said the casual clause would restrict Visy’s right to use independent contractors in a way that was not sufficiently related to job security.

She said the clause undermined job security by compelling Visy to act in a way likely to increase its permanent workforce regardless of the circumstances. She found the clause was not a “permitted matter” under the Fair Work Act, a position upheld by a full bench yesterday.

The full bench upheld Visy’s argument that the clause did not sufficiently relate to employees’ job security and therefore was not a matter pertaining to the relationship between Visy and its employees covered by the agreement.

Stephen Smith, head of national workplace relations policy for the Australian Industry Group, welcomed the full bench decision.

“Over recent years some ­unions have sought clauses in enterprise agreements requiring a business to hire labour hire workers if the workers are engaged regularly in the business for three months or more,’’ Mr Smith said.

“This full bench decision is very important because it confirms that clauses like the one in the Visy agreement are not permitted in enterprise agreements. Consequently, industrial action cannot be taken in pursuit of these union claims and enterprise agreement clauses similar to the one in the Visy agreement have no effect.”

Ms McManus hit out at the workplace laws in the wake of the decision. “This decision shows how hopelessly broken our workplace laws are,’’ she said.

“Under the Fair Work Act, working people are now not even free to negotiate the right to ­protect their own job security, such as putting limits on the use of labour hire.

“Enterprise bargaining is failing working people. It imposes unfair rules that are stacked in favour of employers.”

Ms McManus said the full bench decision “makes all working people’s jobs even less secure, allowing on one hand employers to arrange their business to cut wages and job security, and on the other denying workers the ability to do anything about it. It will make the problems of low wage growth and insecure work like ­labour hire, even worse,’’ she said.