Table of Contents
Bullied as a casual employee? We explain your rights.
Harassed as a casual employee? We explain your rights.
Are you being bullied or sexually harassed as a casual? We explain your rights.
What are your rights as a casual employee?
Casual employees: Protections from bullying & sexual harassment
Due to the insecure nature of their work, casual employees are often afraid to exercise their workplace rights. In fact, a survey of casual workers by the Victorian Trades Hall Council reveals that more than half fear losing their jobs if they speak up about pay conditions.[1]
The survey also reveals that 86 percent of casual employees don’t feel confident about the future of their job or income. While half don’t have a predictable roster to base their lives around, and many struggle to pay for rent, bills and food.
With so many casual workers facing such dire prospects, it’s no wonder they are afraid to speak out if they experience bullying, sexual harassment, or discrimination at work. In an economic landscape where insecure work is increasing, casual employees, contractors, and ‘gig workers’ (e.g. Uber drivers, etc.) may feel they can be easily replaced.
The rise of casual work in Australia
Australia has one of the highest rates of casual employment in the world. There are 2.4 million casual employees in Australia, making up nearly a quarter (23 percent) of all employees.[1] Some have argued that the casualisation of the Australian workforce has been increasing. This includes Australian Council of Trade Unions (ACTU) secretary Sally McManus, who declared as much in 2018.
“We’ve got a real crisis in insecure work in our country,” Secretary McManus told ABC radio at the time.
However, according to data from the Australian Bureau of Statistics, the rate of casualisation within the workforce has actually remained steady for the last 20 years, hovering around 24 or 25 percent of all employees. But it’s a completely different story if you look back over the last 40 years, which is likely what Secretary McManus was referring to.
A 2018 report created by the Parliamentary Library reveals that in 1982, casual employees made up just 13 percent of the Australian workforce. But in the next seven years, the number of casual employees grew by 89 percent. This, while the number of employees with leave entitlements only grew by 16 percent. By 1992, casual employees made up 22 percent of the workforce. By 1997, they comprised 24 percent.
Australia’s growing gig economy
In addition to casual workers, there are 1 million independent contractors in Australia, making up 7.8% of all employed. Among these independent contractors are many of the rising number of gig workers for tech platforms like Uber, Door Dash, Air Tasker, and Menu Log, among many others.
According to the Actuaries Institute, the Australian gig economy grew nine-fold between 2015-2019, with a gain of 32 per cent in 2019 alone. And while the exact number of gig workers in Australia isn’t known, the Actuaries Institute estimates it’s as high as 250,000.
Here’s what you should know about casual employee rights
In this economic landscape where insecure work is increasing, it’s critical for you as a casual employee to understand your rights. Some employers may think they can easily replace their casual employees because there are so many people willing to perform short-term work. And it’s possible that many casual employees think this too, and therefore are afraid to stand up for themselves at work.
But casual employees do in fact have many rights. Australia’s workplace laws are designed to protect casual employees. They can’t simply be dismissed or treated unfairly by their employer because they made a complaint about any form of bullying, sexual harassment or discrimination they’ve endured in the workplace.
How the General Protections provisions help casual employees
The General Protections provisions within the Fair Work Act 2009 help protect all employees – whether full-time, part-time or casual – from certain forms of unfair treatment by their employer.
When an employer dismisses an employee or treats them unfairly for complaining about harassment, bullying or discrimination, this is what’s known as an adverse action. An adverse action is an unlawful act by an employer that’s harmful to an employee and motivated by a prohibited reason.
The General Protections provisions outline the prohibited reasons. One of these is if an employee exercises a workplace right. This includes if an employee makes a complaint to their employer about their employment.
For example, if an employee complains about being sexually harassed or bullied, either by a manager or a colleague. It could also include an employee simply asking their employer about their rate of pay. Or if an employee makes a complaint about their employer to the Fair Work Commission.
Other prohibited reasons outlined in the General Protections provisions include an employee’s race, religion, sex, and other immutable characteristics.
What constitutes an adverse action?
An adverse action includes doing, threatening or organising to:
- Dismiss an employee
- Injuring an employee in their employment. For example, denying their legal entitlements, such as pay.
- Altering an employee’s role to their disadvantage
- Treating an employee differently from other employees
You can see the full list of actions that can lead to an adverse action on the Fair Work Commission website.
How do you make an adverse action claim?
The law regarding adverse actions is often complex and seeking compensation can be difficult to navigate if you have little experience with employment law.
If you have experienced what you might think is an adverse action, A Whole New Approach can help you understand if you are eligible to make a claim for compensation with the Fair Work Commission. If you are eligible, we can also help you make an adverse action claim. Feel free to call our expert team on 1300 766 700 for a free and confidential conversation.
What other protections do casuals have from bullying or sexual harassment?
If you are being bullied or sexually harassed at work, but don’t qualify for an adverse action claim, there are other avenues you could possibly pursue. This includes applying for a stop bullying or sexual harassment order with the Fair Work Commission.
The Commission has the power to make these orders to prevent an employee from suffering any further instances of bullying or sexual harassment. It however doesn’t have the power to award the employee any monetary compensation.
Who can apply for a stop bullying or sexual harassment order?
An individual can apply for a stop bullying or sexual harassment order if:
- They are a worker. This includes employees – whether full or part time and casuals – as well as contractors, trainees and several other types of workers.
- They reasonably believe they have experienced bullying or sexual harassment
- The bullying or sexual harassment occurs at work in a constitutionally covered entity. This includes a constitutional corporation, a Commonwealth authority and a business or undertaking.
There are, however, a range of other eligibility criteria an employee must satisfy. This includes whether the ill treatment suffered by the employee meets the definition of bullying or sexual harassment.
You might want to consider these options before going to the Fair Work Commission
You may feel like raising the issue of your bullying or sexual harassment will possibly result in your dismissal or other unfair treatment. However, before applying for a stop bullying or sexual harassment order, you may want to first consider talking to the person(s) responsible for your treatment. If it’s safe to do so, you could tell them that their behaviour is inappropriate and ask them to stop.
If you feel comfortable, you could also attempt to resolve the issue or make a complaint by speaking to your manager or supervisor, the HR department or a health and safety representative. If you are part of a union, you could speak to your union representative. And if your employer has an Employee Assistance Program, you could also access free professional counselling.
These are among a list of options that you can consider prior to applying for a stop bullying or sexual harassment order, which you can find on the Fair Work Commission website. We should note that you are not obligated to pursue these avenues prior to applying for a stop order.
How can a casual employee apply for a stop bullying or sexual harassment order?
You can submit an application for a stop bullying order or a sexual harassment order via the Fair Work Commission website. Similar to the application process for an adverse action claim, applying for a stop order is often complex. It requires you to understand the eligibility requirements and to know what evidence to submit, among other details.
If you need help, our friendly team of employment experts at A Whole New Approach can help you easily understand if you are eligible. And if so, we can assist you in submitting your stop order application to the Commission.
[1] Australian Bureau of Statistics
[1] Victorian Inquiry into the Labour Hire Industry and Insecure Work
