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Trade Unions and Temporary Employment: New Initiatives in Regulation and Representation

Iain Campbell

Iain Campbell Centre for Applied Social Research RMIT University GPO Box 2476V Melbourne 3001 AUSTRALIA PH: 61 3 9925 3137 FAX: 61 3 9925 3088 Email: Iain.Campbell@rmit.edu.au Paper for the 25th Conference of the International Working Party on Labour Market Segmentation, Brisbane, 22-24 July 2004 ***DRAFT ONLY

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Trade Unions and Temporary Employment: New Initiatives in Regulation and Representation Iain Campbell

ABSTRACT Trade unions throughout the advanced capitalist societies face significant challenges in the current period. One central challenge is associated with the persistence and growth of temporary work, ie the varied forms of non-permanent waged work such as fixed-term contracts, seasonal employment, casual employment, employment with temporary agencies and certain types of government employment and training schemes. In responding to this challenge, trade unions operate on at least two fronts – design and implementation of regulatory initiatives and effective representation of temporary workers. Regulatory initiatives can be pursued at different levels and usually involve change to one or another of three main mechanisms - restrictions on temporary employment, the level of rights and benefits, and the level of compensation for perceived disadvantages. Both regulation and representation pose dilemmas, including dilemmas of co-ordination with trade union efforts to defend the interests of employee in a continuing (‘permanent’) contract of employment. This paper briefly reviews union initiatives in varied countries. However, it focuses in particular on Australian trade unions and casual employment. Australian trade unions face a particularly severe challenge in this area, because casual employment constitutes – at least potentially – a highly degraded form of temporary employment and because it already constitutes such a large and rapidly growing proportion of the workforce. 1. Introduction Trade unions throughout the advanced capitalist societies face significant challenges in the current period (ILO, 1997; Hyman, 1999). One central challenge is associated with the persistence and growth of varied forms of non-permanent waged work – what is conventionally called temporary work. Temporary work is best seen as an umbrella category that comprises several different forms of wage labour, eg fixed-term contracts, seasonal employment, casual employment, employment with temporary agencies, and certain types of government employment and training schemes (OECD, 1991; cf OECD, 2002).1 Their persistence and growth can be seen as one aspect of a broader process of labour market fragmentation (Standing, 1999).

1 ‘Temporary’ is used here to cover all forms of non-permanent waged work. ‘Permanency’ is in turn identified with the presence of a continuing (on-going) contract of employment. This understanding differs somewhat from that developed in a recent OECD report (OECD, 2002), which similarly understands

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The precise composition of temporary employment – as well as its incidence and trend of growth – varies widely amongst different countries (OECD, 2002). As a result, the specific nature of its challenge to trade unions also varies. Summarising overall, we can say that the immediate problem for trade unions arises out of the existence of a dualistic division between the ‘permanent’ (or continuing) contract of employment and the varied forms of ‘temporary’ employment contracts. The ‘permanent’ contract of employment has been the platform on which labour movements have built up an extensive array of rights and entitlements to meet the needs of employees. These start with a degree of employment security but readily extend to standardised working-time arrangements, a minimum (‘living’) wage and other benefits, and they all add up to a rudimentary form of what could be called ‘industrial citizenship’ (Marshall, 1950; see Streeck, 1992). This platform continues to be essential for efforts to preserve and extend minimum labour standards. On the other hand, the varied forms of temporary employment tend to stand outside this historical evolution. As a result, though they may be roped in and granted certain rights and benefits, they tend to be marked by a significant shortfall or deficit in comparison with permanent employment. In this light, the persistence and growth of temporary employment appears to be associated with the spread of inferior conditions and precariousness. It is seen as a threat to job quality (Letourneux, 1998; Scheele, 2002; OECD, 2002). This erects barriers to any efforts to improve the rights and benefits of permanent workers, and indeed it places pressure on the rights and benefits that have been inherited from struggles in the past.2 In addition, given that union membership is more heavily concentrated amongst permanent workers, the growth of temporary work threatens to undermine union density and to sap union strength and influence within the society. More broadly, it threatens to increase divisions in the workforce and amplify a trend toward inequality. As well as constituting a direct problem for those affected, who are most likely to be drawn from vulnerable groups in the society, this has broader effects in affecting the quality of life in communities and societies. The challenge of temporary employment to trade unions is most severe where temporary employment is freely available to employers and where it takes especially degraded forms, marked by a significant deficit in rights and benefits. This opens up the risk of a dynamic of competitive cost-cutting, in which employers take advantage of the incentives

‘temporary’ as referring to non-permanent waged work but which broadens the concept of permanent to include implicit as well as explicit expectations of a long-lasting employment relationship. In my judgment this is an unsuccessful approach, designed to accommodate the anomalous case of the US at the expense of clarity for the rest of the world. For further comments on the implications of this OECD definition see note 3 below. 2 There is a reverse argument that temporary employment can act as a buffer (or shock absorber or safety valve) for permanent employees, protecting them against employer pressures for greater flexibility in wages and working-time. This argument is often related to the idea of the ‘flexible firm’ and the notion of a stable division between a core and a peripheral workforce. There is no space to consider the issue here. I simply note that it seems to me to have only limited application. While the ideal of a buffer may play a part in the thinking of some permanent employees (and their unions), any buffer effect is most likely to be just a short-term outcome that will be eroded in the medium term, leaving the permanent employees exposed to management demands for further flexibility and lower costs. As noted below, the example of shop assistants in Australia is a good example of the failure of an attempted use of temporary workers as a buffer.

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offered by temporary employment in order to replace permanent jobs with temporary jobs. In such circumstances, researchers and activists often speak of a process of casualisation, defined broadly in terms of the spread of conditions frequently associated with casual employment – eg high employment insecurity, short-term tenure, irregular schedules, few rights and benefits, and heightened exposure to unfair and arbitrary treatment (Standing, 1999, 105-107; see Basso, 2003). The growth of temporary employment appears most immediately as a threat to trade unions. This is undoubtedly its main aspect. But this growth can also be seen in a more positive sense, as an opportunity. From a trade union point of view, certain forms of temporary work need to be rejected. However, if other forms are accepted as appropriate responses to the needs of a modern economy, then they must be integrated into the existing structure of labour regulation. In short, the regulatory structure needs to be re-designed to accommodate diverse forms of employment. Such a redesign is by no means easy, and it needs to reconcile employer needs, individual employee needs and broader social needs. But the modernisation of the regulatory system can be seen as linked to the modernisation of trade unions themselves. Both processes are concerned with making room for diverse forms of work and also diverse workers. As several researchers note, this entails rethinking the inherited model of the ‘standard employment relation’, though without losing the historical advances associated with this model (Mückenberger, 1995; Hyman, 1999; + Wagner, 2000; Bosch, 2001; Bosch et al., 2001). This work of modernisation and rethinking was first initiated in connection with part-time work, and in many countries the trade union movements have succeeded in moving part-time employment from ‘marginalisation’ to ‘integration’ and then in pushing forward to a new vision of working-time sovereignty (Fagan and O’Reilly, 1998; Boulin and Hoffmann, 1999; Fagan, 1999). Responses to the challenge of temporary work can build on this achievement, though the challenge is undoubtedly different because of the different character of temporary work. In meeting the challenge of temporary work, trade unions have to act on two main fronts – regulation and representation. First they participate actively in the discussion and implementation of regulatory solutions. It is possible to distinguish three main mechanisms for the regulation of temporary employment:

• first, restrictions/ limits on both the extent and the method of use of these forms of employment;

• second, specification of the precise difference in protection between these forms of employment and the core category of full-time permanent employment (ie specifications of what rights and benefits are shared and what are missing); and

• third, prescription of compensation for workers in these forms of employment (in exchange for the disadvantages that they encounter).

In developing proposals for regulation, trade unions have traditionally emphasised the first mechanism, which is seen in terms of protecting permanent employment. Restrictions can come in different forms. Apart from complete proscriptions on the use of temporary employment, there can be quantitative limits on the extent of use (what sort?), restricted conditions for use (what sort?), or financial penalties (how calculated?).

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However, trade unions have also used the second approach, which can be justified both on grounds of social justice for temporary workers and as a way of influencing employer decisions and minimising the threat of opportunistic employers taking advantage of any substantial deficit. In principle, trade unions seek a narrow gulf, in which the varied rights and benefits of permanent employment – understood as industrial rights – are generalised to all workers and any specification of different (inferior) rights and benefits is confined to one or two aspects and is carefully justified. In particular, any deficit in rights and benefits that leads to cost advantages for employers needs to be carefully scrutinised in order to ensure that it does not generate incentives for employers to replace permanent with temporary employment. The guiding principle is allowing flexibility for employers while closing off illicit cost advantages. The third mechanism has tended to be viewed with suspicion by trade unions, as veering dangerously towards a ‘cashing out’ of rights and benefits. However, it is sometimes used as a subsidiary element in the approaches based on the first two mechanisms. Regulatory solutions can be pursued at different scales. They can be aimed directly at the employer, eg through unilateral workplace regulation or workplace bargaining, or they can be pursued more generally through multi-employer collective bargaining or through state action at the local, regional, national or even supra-national level. All scales are feasible. However, some initiatives are better suited to certain scales. For example, limits on temporary employment can work at all levels, but action to help define the deficit between temporary and permanent work is best pursued at broader levels such as through legislation. The second front on which unions respond to temporary employment is through the effective representation of workers in temporary employment contracts. Trade unions have traditionally focused on articulating and defending the interests of employees with a permanent employment contract (*Delsen, 1995; Mückenberger, Stroh and Zoll, 1995). With some exceptions, temporary workers were either excluded from unions or else neglected. There is a strong case for a more comprehensive approach that would extend effective representation to temporary workers. Thus temporary workers are often the most disadvantaged workers, and they clearly need and deserve effective union representation. From a union point of view, representation of temporary workers is important in order to forestall dangers of competition and division within workplaces and within industry sectors. Similarly, a wider net of union recruitment and representation is important in order to avoid the danger of unions being confined to just a narrow band of middle-income groups, where they would be locked out of important sectors at both the bottom and top of (fragmenting) labour market structures. More positively, a wider net is important in adding new voices and new interests to union activities. Regulation and representation are not mutually exclusive strategies. Representation is often most effective when it extends beyond bargaining over wage gains to encompass distinct regulatory strategies. On the other hand, regulatory strategies are most effective in meeting the needs of all workers when they are informed by the ideas and initiatives of temporary workers.

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Though the challenge of temporary employment is similar in most countries, it is likely that a successful mix of solutions will need to be adapted to the specific institutional environment in each country (Ebbinghaus and Visser, 1999). Trade unions in most countries are still struggling to find the best mix of solutions. However, it is possible to point to some promising initiatives in both regulation and representation. This paper is particularly concerned with the Australian trade union movement and the challenge posed by casual employment. This is a particularly severe challenge, because casual employment constitutes, at least potentially, a highly degraded form of temporary employment and because it already constitutes such a large and rapidly growing proportion of the workforce. In addition, since the late 1980s the regulatory environment has become markedly more hostile and trade union strength and influence has declined precipitously. In the past three or four years trade unions have begun to confront the problem. The paper seeks to contribute to a discussion concerning how to respond. In section 2 it reviews some of the new initiatives of other trade union movements, particularly in Europe, trying to draw out the principles of the more successful initiatives. It then turns in section 3 to the Australia case. This section presents a brief profile of casual employment and casualisation in Australia and then summarises the traditional trade union approach to casual employment. Section 4 considers the slow – and still unfinished – change in trade union approaches and examines several recent initiatives in Australia on both the regulation and the representation fronts. The final section offers a brief conclusion. 2. International Experiences In many advanced capitalist societies, trade unions are grappling with the challenges of temporary employment by developing initiatives on the two fronts outlined above. This is often part of efforts aimed at dealing with the broader problems of changing patterns of work, changing forms of labour regulation, increased employer pressure, and changing employee needs and interests. These efforts are often linked with ambitions for union renewal or revitalization (Fairbrother and Yates, eds., 2002; Frege and Kelly, 2003). i) regulation Trade unions in most countries are engaged in regulatory initiatives. Regulation at individual workplace level is undoubtedly one component, but it is hard to document. Some initiatives have been pursued through collective bargaining (Scheele, 2002) and there is scattered evidence of interesting regulatory initiatives at local level (Regalia, 2001). But it is the national and supra-national level that is the most important. Regulation of temporary employment through legislation at national level has always been important, especially in the majority of European countries. It continues to be important in these countries, and indeed it is now supplemented and supported by supra-national regulation through the European Union (EU). However, it is possible to detect changes in the mechanisms that are used to regulate certain mainstream forms of

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temporary employment at national level. Summarising roughly across all European countries, we could say that there has been a tendency to shift emphasis from what we identified above as the first mechanism, which imposes restrictions, to the second mechanism, which aims to specify more carefully the differences in protection. Complete bans and proscriptions are still in place for what are seen as inappropriate forms of temporary employment, but there is a lighter touch on what are seen as appropriate forms such as fixed-term work or temporary agency work. In these cases, limits and restrictions have been reviewed and fine-tuned in order to ensure that they correspond to contemporary needs, including in particular the needs of employers to develop appropriate forms of flexibility in their operations. At the same time, the disadvantages for workers have been carefully scrutinized in order to eliminate those that are avoidable and to prevent any others from accumulating. This approach involves trying to improve the quality of this employment, to generalise as many as possible of the rights and benefits of permanent employment to temporary employment (and thereby minimize any deficit in rights and benefits in comparison with permanent employment), and to ensure that individuals have ample opportunities to move into permanent employment. We can illustrate this evolution by looking at fixed-term contracts, the most common form of temporary employment found in European countries. No country has a complete prohibition on fixed-term employment. However, in most countries, fixed-term employment is subject to special rules and regulations, which impose restrictions and define differences in the treatment of temporary and continuing employees. These rules cover matters such as requirement of reason, duration, renewal, conversion to a permanent contract, and compensation at the end of the fixed term (Delsen, 1995, 140-141; Schömann, Rogowski and Kruppe, 1998, 141-143; Clauwaert, 1998; OECD, 1999, 59, 62; OECD, 2002, 176). Regulations on fixed-term contracts in many European countries became more comprehensive or restrictive in the 1970s (Delsen, 1995, 138). However, a select number of European countries, including Spain, France, Germany and the Netherlands, moved during the 1980s to liberalise the legal restrictions on recourse to fixed-term contracts, largely in response to arguments that strong employment protection regulation for continuing employees has the effect of inhibiting employment generation and sustaining high levels of unemployment and that employers therefore needed more recourse to forms of employment with reduced employment protection (OECD, 1994; Delsen, 1995, 138-144). In recent years, the pressure towards liberalisation has abated (Schömann and Schömann, 2003; cf OECD, 1999). In countries with high levels of fixed-term employment, such as Spain, government policy now emphasises ways of encouraging an increase in permanent contracts (Weber 1998). Concern with employer needs for flexibility are now seen as needing to be balanced with concern for the conditions of fixed-term employees, including their needs for different types of labour security. Indeed, ‘flexicurity’ has become an important slogan in labour regulation in Europe (Wilthagen, 1998; Madsden, 2002).

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Concern with the conditions of fixed-term employees helped to encourage the social partners at European level to conclude in March 1999 a framework agreement on fixed-term contracts – an agreement that has since acquired added force as an EU Directive (Vigneau et al. 1999). The Fixed-Term Directive provides a summary statement of the current consensus on fixed-term contracts in European countries. The stated purpose is to improve the quality of fixed-term contract work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent the abuse of such employment relationships through the use of successive fixed-term contracts. As such, it recommends a principle of non-discrimination whereby “in respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds” (Clause 4). It also recommends measures to prevent abuse such as objective reasons justifying the renewal of such contracts or relationships; a maximum total duration of successive fixed-term contracts or relationships; a maximum number of renewals of such contracts or relationships (Clause 5). In short, the Directive has two main thrusts, which serve both to limit temporary work and to protect and assist temporary workers. The first entails improving the quality of temporary work by reducing the deficit in rights and benefits in comparison with permanent work. The second entails inhibiting the misuse of temporary employment contracts by forestalling their conversion into a long-term relationship with individual workers. The trade unions have followed this policy evolution. Indeed they have actively participated, in particular through the agency of the European Trade Union Confederation (ETUC), which has been given an important role in negotiating with the employer groups at European level on the principles and wording of certain forms of EU regulation. The Fixed-Term Directive is one of several important Directives that the ETUC has been directly involved in negotiating (starting with the 1995 Directive on Parental Leave). The Fixed-Term Directive is the second in a planned series of three directives on so-called ‘atypical work’, all of which were intended to be negotiated and agreed by the social partners at European level as ‘framework agreements’ before being enacted in the form of directives. The Part-Time Employment Directive in 1997 was the easiest for employer groups and unions to agree on. It was succeeded by the Fixed-Term Directive in 1999 (Vigneau et al., 1999). The third – a Directive on Temporary Agency Work – has not yet been finalised. Agreement amongst the social partners have proved difficult to reach, partly because of the disparity of employer interests on this issue, and, after talks stalled in 2002-2003, efforts to introduce a Directive by other mechanisms also ran aground (Broughton, 2003). Apart from the efforts at European level, there is a rich body of experience of trade union involvement in regulation at the national and local level. At national level, the principles embedded in the Fixed-Term Directive have been widely adopted. Similar principles of equal treatment have been outlined for temporary agency work, and numerous initiatives seek to extend regulation, including collective bargaining and representation through works councils, to the temporary agency sector (Michon, 2000; Storrie, 2002). However, cross-national variation in trade union approaches remains important, and within all

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countries it is possible to detect an uneasy combination of approaches. Ballarino (2002) offers a useful review of union approaches to atypical workers in Lombardy, distinguishing four different strategies based on traditional collective bargaining as well as experimentation with new forms of collective representation. The bargaining strategies are seen as based on a principle of seeking to integrate atypical workers into the traditional system, though the most innovative of the bargaining strategies (‘contractualization’) is seen as based on incremental improvement in workers’ welfare guarantees but without using the traditional employment relation as a reference point. ii) representation Representation has tended to be less important for union strategies than regulation. However, it remains a major front in dealing with the challenge of temporary work. It is harder to pick out common trends with respect to representation. Temporary workers are generally less likely than permanent workers to be trade union members in most countries (with possible exceptions in Belgium and Denmark – see Scheele, 2002, 21). Most national union movements have accepted, at least in principle, a need to recruit more vigorously amongst temporary workers. This is in turn often linked with the need to recruit more actively in private sector services and amongst social groups such as women, youth and ethnic minorities. The impulse to recruit such workers seems to be strongest in Anglophone countries such as the UK and the US, perhaps because there is a stronger imperative to organise in order to secure a modicum of collective bargaining coverage (Frege and Kelly, 2003). However, it is important not to neglect the variation in the institutional system and the way in which this shapes different approaches to organising even amongst the Anglophone countries (Walsh, 2002). Experiments with innovative strategies for bringing temporary workers into collective representation have been outlined and even implemented in some cases (*Olney, 1996; Pollert, 1996; Wever, 1998; Heery and Abbott, 2000; Conley et al., 2001; Jaarsveld, 2002). In some countries, it is argued that union strategies for recruiting temporary workers need to go ‘beyond the workplace’. In the United States, for example, analyses of new forms of unionism in the fragmented low-wage service sector commonly emphasise the need for non-worksite based methods that can accommodate worker transience and dispersion across multiple establishments (Walsh, 2000). In the United Kingdom, Heery and Abbott (2000; see also Heery et al, 2000) show how contemporary union strategy in relation to ‘insecure’ workers often has to reach ‘beyond the enterprise’ to recruit members at the point of entry to the labour market, rather than the workplace. Similarly, in providing services to such workers, it is suggested that unions have to aim at developing security through access to training and work opportunities rather than through a right to retain particular jobs. New strategies sometimes entail new forms of representation. Special unions for temporary workers are noted for Greece and Italy (Scheele, 2002, 20-21; Ballarino, 2002). Ballarino (2002) also cites the involvement of unions in setting up ‘bilateral agencies’ as well as non-profit temporary work agencies.

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iii) successful initiatives? How successful are these initiatives in Europe around regulation and representation? It’s hard to tell. Many of the initiatives are only recent and it is rather early to judge the results. Indeed some of the initiatives are clearly unfinished. For example, regulation of temporary work is radically incomplete without agreement on the regulation of temporary agency work. Certainly, the fact that temporary employment continues to grow in many European countries (OECD, 2002) could be seen as a sign of failure. At the same time, the current initiatives have been successful in eliminating some forms of temporary employment and in ensuring that those that are permitted are marked by only a narrow deficit in rights and benefits. This is an important achievement. It is clear that temporary employment poses a difficult challenge for trade unions. It leads into contradictions and dilemmas. This is perhaps most obvious on the front of representation. Organising temporary workers is difficult, since they often have distinctive work patterns and interests that render them much harder and more expensive to find and represent (*Delsen, 1995). Limited tenure (and high turnover) can in itself represent a barrier to organization. Moreover, in some cases their interests may in fact be opposed to permanent employees. 3. Trade unions and casual employment in Australia i) A profile of casual employment in Australia Casual employment is not the only form of non-permanent waged work, ie temporary work, in Australia. Fixed-term employment accounts for around 4 percent of all waged work and a small proportion of workers are organised through temporary work agencies. However, casual employment is by far the dominant form of temporary work (Campbell and Burgess, 2001a).3 Data from the Australian Bureau of Statistics (ABS) suggest that casual employment in Australia has expanded steadily since reasonably accurate figures first became available in the early to mid 1980s. The number of employees who were casual in their main job more than tripled in the period from 1982 to 2003, and casual employees increased from around 13.3 per cent to 27.6 per cent of all employees over this period. These data point to a significant process of casualisation in Australia, applying most forcefully to part-time employees, where the proportion of casual employees stands at 60.4 per cent, but also apparent amongst full-time employees, where 3 A recent OECD publication excludes casual employment in Australia from its catalogue of forms of ‘temporary’ employment and assigns it to the category of ‘permanent’ employment. The authors suggest that “for the purposes of this chapter, temporary jobs are those forms of dependent employment which, by their nature, do not offer workers the prospect of a long-lasting employment relationship” (2002, 132). Conversely ‘permanent’ jobs are defined as those that do offer workers the prospect of a long-lasting employment relationship. It is hard to see how this leads to an exclusion of all casual work from the category of ‘temporary’. As O’Donnell (2004, 18), the OECD procedure adopted in relation to casual work in Australia seems ‘especially dubious’.

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the proportion has expanded to 13.8 per cent (Table 1). Casual employment is now a major component of the Australia workforce. TABLE 1 ABOUT HERE Though concentrated in certain areas, casualisation has affected both private and public sectors, all occupations, and all sizes of workplace. As Table 2 indicates, it has affected all major industry divisions, though to varying degrees. In some industry divisions, casual employees now constitute more than 40 percent of the workforce (though an elaborated analysis would need to make allowance for the reduced hours of most casual workers). TABLE 2 ABOUT HERE This process of casualisation has been the subject of numerous studies, which help to chart its dimensions and dynamics (eg Burgess, 1997; Smith and Ewer, 1999; Campbell, 2000, 2001). I note just four points here, as a preface to the discussion of trade unions and casual employees. a) The term ‘casual’ (and indeed ‘casualisation’) has a distinctive meaning in Australia, which differs slightly from the meaning it is often given in international discussion. In European data and discussion, ‘casual’ appears as a minor sub-category of temporary employment, which refers to cases of short-term employment to meet exceptional or irregular work demands, traditionally concentrated in industries such as agriculture, construction or hospitality (Meulders et al. 1994: 73-79). In Australia, the category of casual employment includes at its core the type of occasional and irregular work regarded as ‘casual’ in other countries. But, it also includes a broad penumbra of work that may be long-term and regular but that lacks the standard employment benefits of permanent employment. The former can be called ‘short-term casuals’ (or ‘true casuals’), and the latter are called ‘long-term casuals’ (or ‘permanent casuals’). This distinction is increasingly invoked in case law and expert commentary, and it is widely argued that the existence of the group of long-term casuals signals a distinctive feature and indeed a major scandal of the Australian regulatory system (Smith and Ewer, 1999; Campbell and Burgess, 2001b; Owens, 2001). As explained below, this distinction is taken as the starting-point for much current trade union action. It could be objected that ‘long-term casuals’ should not properly be called ‘casuals’, because they do not conform to a strict textbook definition. I think this objection is mistaken. The vast bulk of these workers do readily identify themselves as ‘casuals’. Moreover, the fact that these workers have few rights and benefits is indeed tightly connected to their distinctive situation as casuals within the framework of the regulatory system. Nevertheless, the precise label is not the main issue. The important point is the

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existence of a large group of employees deprived of the standard rights and benefits associated with the permanent contract of employment. This peculiar feature of Australian labour markets is captured in the ABS data presented above. In disaggregating data on employees, as in Tables 1 and 2, the ABS is distinguishing between ‘employees who were not entitled to either annual leave or sick leave in their main job’ and ‘employees who were entitled to annual leave or sick leave in their main job’. Employees were classified into these two categories according to their responses to questions about employer provision (in their main job) of paid holiday leave and of paid sick leave. These were initially given the label of ‘casual’ and ‘permanent’ (eg ABS Cat. No. 6325.0, Trade Union Members Australia, August 1996). This is a robust approach, which captures the sharp dualistic division amongst employees in Australia. Moreover, the use of the labels ‘casual’ and ‘permanent’ meshes well with the definitions used in common law, awards and statute as well as with everyday understandings.4 b) The conventional ABS approach and definition is robust because it captures the distinctive features of Australian practice.5 Casual employment is a practice anchored in features of the labour regulation system in Australia, operating through common law, awards or statute. Casual employees are presumed in common law to have a contract of employment that is of ‘so minimal duration as to barely exist’, and as a result they are in principle almost completely excluded from non-wage benefits tied to continuous service, eg paid annual leave, sick leave, long service leave, parental leave, and redundancy payments. However, the crucial level of regulation derives from the award system (and the hybrid system of awards and agreements that emerged from labour market deregulation in the 1990s). As I argue at length elsewhere (Campbell, 1996; Campbell and Brosnan, 1999; Campbell and Burgess, 2001a), casual employment represents unprotected employment that – on the basic foundation laid down by common law – emerged and was nurtured within any of three major ‘gaps’ in the regulatory system. First, casual employees could be employees nominated as ‘casual’ according to the provisions of an award or agreement and effectively regulated according to these special casual provisions or clauses. Second, casual employees could be employees nominally subject to regulation by award or agreement but who are ineffectively regulated (primarily because of problems of poor enforcement). Third, casual employees could be employees outside of all regulation by award or agreement.

4 While preserving the approach, the ABS has now retreated to a safer and less contested terminology of ‘employees without leave entitlements’ and ‘employees with leave entitlements’. In this paper I continue to apply the previous labels. 5 Though robust, this classification does have several limitations, which are the subject of debate amongst researchers and which the ABS is trying to correct in some recent special surveys. The two central limitations are the inclusion of owner-managers of incorporated enterprises in the count of employees and the use of the category of ‘permanent’ as a residual category that includes fixed-term contracts (Campbell and Burgess, 2001b, 88-91). The recent special survey, the Survey of Employment Arrangements and Superannuation (SEAS – ABS Cat. No. 6361.0, May to June 2000) allows both difficulties to be overcome. According to SEAS, there were 6843.7 employees in Australia in April to June 2000, of whom 70.2 percent were ‘permanent’, 4.2 percent were on fixed-term contracts, and 25.7 percent can be grouped together as ‘casual’. In comparison with the main ABS data, reported in Tables 1 and 2, these data lead to reduced estimates of the significance of casual employment and casualisation, though the reduction is only slight in each case.

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Award clauses on casuals defined an officially-sanctioned hole in the regulatory system. These clauses generally stated in effect that the employment of casual employees was permitted, though generally in conjunction with restrictions, primarily defined in terms of quotas or other quantitative limits on the use of casual employees. In addition, award clauses would specify that casual employees were entitled to a casual loading , ranging from 10 to 50 percent but most often around 20 percent, on their hourly wage, which was partly justified as compensation for foregone benefits and for intermittency of employment. Such casual employees can be seen as regulated but not protected. In the course of the changes to the labour regulation system since the late 1980s, more casual clauses have been introduced and existing casual clauses have been extensively liberalised. Moreover, since the ‘award simplification’ process that was initiated with the Workplace Relations Act 1996, it is no longer possible in awards to specify quotas or numerical limits on any form of employment, including casual employment. The main effect of labour market deregulation has been to widen the existing gap associated with casual clauses (and to widen the other gaps associated with lack of enforcement and incomplete coverage – see Campbell and Brosnan, 1999). c) Casual jobs have certain features in common. They lack almost all employment rights, benefits, and forms of protection. This starts with the lack of entitlement to paid holiday leave and paid sick leave, but it readily extends to most rights and benefits such as payment for public holidays, bereavement leave, carer’s leave, notice of dismissal and redundancy payments (AMWU, 2000; Creighton and Stewart, 2000).6 The deficit in protection is much larger than in the case of the varied forms of temporary employment, including in particular fixed-term employment, that are more familiar in other countries (Campbell and Burgess, 2001a). d) In spite of the common feature of an absence of rights and benefits, casual jobs can be diverse in other respects. Indeed it is precisely this common feature that is responsible for the diversity. The absence of rights and benefits gives casual employment a remarkable degree of plasticity and allows it to be used in surprisingly diverse ways in practice by individual employers (Campbell, 2001). Some of these ways will be worse than others from the point of view of employees. But there is at least the potential for highly degraded (highly ‘precarious’) forms of employment. Thus, a key advantage of casual employment for employers is the ability to determine the number and timing of hours of employment of casual employees and to alter these at short notice (including reduce to zero). At the extreme, therefore, casual employment shades off into informal on-call arrangements, where labour time is available to employers on demand. The dimensions of this diversity are numerous. Key axes of differentiation amongst the casual workforce include: length of hours (full-time or part-time); industry location; length of engagement (short-term and/or irregular basis, or long-term tenure and regular hours); and the directness of the employment relation (directly employed or indirectly hired through

6 Some casual employees – generally ‘long-term’ casuals – have obtained access to other entitlements, often as a result of the trade union actions discussed below. The main examples are unpaid maternity leave, protection against unfair dismissal and even long service leave. As a result, the overall assessment of uniformity in absence of entitlements needs to be qualified.

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temporary work agencies).7 Such diversity points to the place of casual employment in a complex net of social and spatial processes, marked by distinctive production chains, complexes of localised forms of regulation, and varied employer calculations and choices (Hall, Bretherton and Buchanan, 2000; Junor and Wallace, 2001; Campbell, 2001). Such diversity in turn overlaps with diversity in the personal characteristics of casual employees, eg according to sex, age, and full-time student status (Campbell, 2000). In short, though diverse in many respects, all casual employment in Australia shares the common feature of an extensive deficit in protection in comparison with permanent employment. This suggests that it constitutes – at least potentially – a highly degraded form of employment. The available data indicate that casual employment has grown rapidly and is now a major component of the workforce. As such, casual employment can be seen as the site of a severe challenge to Australian trade unions. ii) traditional trade union approaches Traditional trade union policy in Australia was marked by caution – often spilling over into hostility – towards casual employment, as one component of a broader hostility to all forms of non-standard employment. The basic thrust of traditional trade union policy, as elsewhere, was towards the defence of the core group of full-time permanent employees. Casual employment, together with other forms of non-standard employment, was widely regarded as a symptom of employer greed and as a threat to both the numbers and conditions of full-time permanent employment (Lever-Tracy, 1988, 1991; Bray, 1991; Campbell, 1996). Where employers sought to introduce casual employment, trade unions generally resisted its introduction.8 This caution or hostility applied with respect to both regulation and recruitment. Where trade unions were strong, they were able to exclude casual employment, either directly by refusing to countenance casual clauses in the award or more indirectly through action at individual workplaces to establish informal rules that excluded casual employees (and allowed the casual clause in the award to be ignored). Where they were weaker, they were

7 Casual employees can be directly employed, available through a ‘casual pool’, or supplied indirectly by a temporary work agency (Watson et al., 2003). The last of these methods, often referred to as ‘labour hire’, is responsible for a small but growing minority, variously estimated at between six and nine percent of all casual employees. It has become increasingly important in areas such as manufacturing and construction, where it serves as a substitute for permanent employment, and it has attracted a great deal of attention and concern (see Hall, 2002; Campbell, Watson and Buchanan, 2004 forthcoming). For some stronger unions this is the main avenue taken by the threat of casualisation. 8 One exception is the retail industry. It has been argued that the introduction of casuals into the large chains followed employer pressure on full-time permanent staff. In particular employer pressure to extend operating hours presented the existing full-time permanent workforce and the union with a dilemma. In order to deflect employer demands for full-time, permanent employees to engage in increased nightwork, e.g. nightfilling, and weekend work - and indeed in order to consolidate what was seen as the major advance for full-time permanent employees of a five day week - the union tolerated or indeed even encouraged the introduction of other forms of employment as, in effect, a safety valve. Employers were encouraged to use casuals to cover nightwork and week-end work. In this case the unions - acting for conventional motives of defence of full-time permanent employees - sought not to exclude or limit but rather to expand casual employment (Carter, 1990, 2-3, 47-48; Lever-Tracy, 1988, 214-215).

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obliged to accept its introduction but sought to limit and regulate it. The main avenue for this effort was through award clauses that specified limits such as quotas and maximum periods of engagement for casual jobs. In addition, unions tried to raise the level of the casual loading in the hope that this would establish a disincentive to the employment of casuals (or at least would remove the any cost incentive) (Bray, 1991). In short, like most trade union movements faced with temporary employment, they focused heavily on the first regulatory mechanism, which entailed the effort to set limits on employer use of temporary work. Though the casual loading could be seen as a distinctive Australian version of the third mechanism of regulation, based on compensation to temporary employees, the trade unions sought to raise it to a point where it would be painful and indeed uneconomical for employers. As such, they sought to use it primarily as another avenue for setting limits on the extent of casual employment. The traditional trade union approach sought to confine effective representation to those in full-time permanent employment. The relatively low union density amongst casual employees could be partly explained in terms of the formidable barriers that – both in the past and in the present – impede the recruitment (and retention) of casual employees. Thus, the concentration of casual employees in small workplaces, the varied, unsocial and few hours of employment, and the instability of the employment make casual employees hard to find and hard to retain in communication. Union organisers seeking to recruit casual employees must often grapple with employer hostility and the distinctive, often unfamiliar problems associated with casual employment. The very lack of rights of casual employees is also a factor cited by union organisers, depriving unions of much of the leverage needed to represent and remedy the grievances of casual employees. Nor are casual employees always champing at the bit to become union members. Their needs and interests often diverge from those of full-time permanent employees, and they frequently display an ambivalence towards unionism and perhaps also a weak employment orientation. Standard membership dues may appear an unwelcome subtraction from meagre wages. All this contributes to making casual employees difficult, expensive and unattractive to organise.9 However, objective difficulties are only part of the explanation. Also influential in the past was a reluctance amongst many unions to organise casual employees. With some exceptions (eg for actors – Crosby, 1992), unions showed little interest in grappling with the difficulties of organising casual employees who fell within their sphere of coverage. Their attitude to casual employees overlapped with their attitude to casual employment. They adhered to the principles that the core commitment of trade unions is to full-time permanent employment, that casual employment can be a threat to the numbers and conditions of full-time permanent employees, and that there is a fundamental divergence of

9 In discussing organising efforts amongst casual employees in home care, Walsh (2002) refers to barriers associated with work organization such as dispersal amongst small establishments, short hours and high turnover. She distinguishes these from factors associated with the employment relationship, including in particular the lack of job security that makes casual employees vulnerable to ‘rostering down’ (the shrinking of their hours) if they are seen as causing trouble. Similarly, in discussing union efforts in manufacturing, Regione (2002, 25) states: “Clearly the biggest barrier to union recruitment of casual workers is their vulnerability. It’s common knowledge that casuals who make waves have their hours reduced or get sacked… it is impossible for the union to take any action to correct any wrongs until the member leaves the job.”

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interests between full-time permanent employees and casual employees (Bray, 1991, 198-201; see also Lever-Tracy, 1988, 1991). This is not to say that casual employees were always outside union membership. On the contrary, a substantial minority were union members. However, this did not necessarily translate into effective representation. Trade unions in Australia, hampered by a heritage of weak shopfloor organisation and confronted by a mobile workforce, have more often concentrated on organising the job or even the workplace by seeking agreements with employers for enrolment of employees and payroll deduction of union dues. In some cases this orientation to the employer in recruitment bypasses the individual employee and his/ her interests (at the extreme it may involve a refusal to enrol individual members if they are in largely non-union shops where the employer refuses an agreement). Thus casual employees may be swept up into union membership, but their interests may still be neglected by unions. For example, in the retail area, which has been the site of a large and growing use of casual labour, the main union, the Shop, Distributive and Allied Employees’ Association (SDA) has a membership that is predominantly casual (Carter, 1990). However, this has been achieved through agreements with the major retailers for payroll deduction of union dues. It has been argued that the SDA - at least in the past - has neglected and failed to represent the interests of the majority casual (and female) section of its membership, concentrating instead on protecting and improving the conditions of the minority section of its membership composed of (male) permanent full-time staff (Carter, 1990, 4, 46-48, 60). 4. New initiatives in Australia The inadequacies of traditional trade union approaches became gradually evident in the 1980s, as casual employment expanded rapidly to become a substantial component of the workforce (Lever-Tracy, 1988, 1991). However for much of the 1980s and early to mid-1990s the union movement was locked in support of the federal Labor government (1983-1996) and seemed unable to develop any clear-sighted analysis of, or response to, labour market trends. Initial signs of a break with the traditional approach, linked to a theme of ‘de-casualisation’, could be detected in the late-1980s. In 1990 the ACTU produced a set of guidelines for affiliates in redesigning the clauses on casual employment, (permanent) part-time employment, and job sharing. The guidelines sought to restrict casual employment to those cases where employment was necessarily short term, seasonal and irregular, and to de-casualise the remaining (majority) part of casual employment by converting it to permanent status (ACTU, 1990; see also 1995; Evatt Foundation, 1995, 233-234).10 10 The guidelines seem to assume that casual employment is always part-time employment. However, within these constraints, the document outlines a series of sensible suggestions and states in summary the formal position: “part-time work should be ‘permanent’ with all award benefits on a pro rata basis, and with a clear ratio of part-time to full-time jobs; casual employment should be limited to a short period of time and used only for short-term or emergency employment” (1990, 7). With respect to the latter it is suggested that a standard clause restrict casual employment to "a period of no longer than 76 hours in total in any 3 month period, to meet exceptional work demands" (1990, 15). The discussion makes no mention of any protective

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Though these policies produced only a few isolated initiatives, they do offer some important lessons. The main initiatives were in retail and hospitality, and many were criticised at the time because they entailed conversion to a rather degraded form of permanent part-time status marked by loss of a casual loading and preservation of many conditions associated with casual work (Probert, 1995; Whitehouse, Lafferty and Boreham, 1997). Walsh (2002) discusses a successful campaign in the late 1980s that shifted homecare workers from casual status to a system of ‘contract hours’ that was within the category of permanent part-time employment. However, even when successful, these initial efforts were rather half-hearted and rarely achieved any solid backing. Indeed they were quickly swamped by other concerns, including in particular the concerns of dealing with the surge of labour market deregulation that began in the early 1990s (Campbell, 1996). The ACTU guidelines largely remained a dead letter, and indeed most of the movement in the redesign of casual clauses in the subsequent years was in the opposite direction - towards a liberalisation of restrictions on casual employment. Similarly, the shifts in employment composition had little to do with ‘decasualisation’. On the contrary, the 1990s witnessed an absolute decline in full-time permanent employment and a continuing explosive growth in casual employment, expanding even into industry sectors such as manufacturing, where it had previously had little presence (see Table 2). Serious union initiatives around casual employment, both at the peak body level and amongst many individual Australian unions, only began to get started towards the end of the 1990s. This can be seen as part of a broader re-examination and reformulation of trade union strategies, sparked off by the end of the privileged relation with the federal Labor government in 1996 and the need to grapple with the consequences of declining trade union density and a more hostile regulatory environment (**Le Queux, Bray, Ostenfeld, 2000; Griffin, Small and Svensen, 2002). A push for better analysis of the challenges faced by the union movement led to a major commissioned report (ACIRRT, 1998) and then a successful ‘Work/Time/Life’ conference of union delegates in November 1998. Both the report and the conference drew attention to the problems of casualisation and the need for new approaches. A leadership change at the ACTU, with Greg Combet moving into the Secretary’s position and Sharan Burrow becoming President, helped to consolidate a sense of forward movement. After years of somnolence – or perhaps sclerosis (Pocock, 1998) – unions in Australia are just now beginning to come to grips with the implications of casualisation and changing labour markets. i) New initiatives in regulation In workplaces where unions remain strong, action at workplace level is no doubt still important. However, there is no evidence of progress through single-employer bargaining, and indeed the little evidence that exists points to a decline in the capacity to exercise workplace action around casual employment. Not only is the number of

provisions such as minimum start periods, but it does recommend that the standard clause specify that casual employees are “engaged by the hour” and that the hourly rate be 1/38th of the weekly award wage plus a casual loading of at least 20 percent (and higher loadings for work performed after normal hours or on weekends or public holidays).

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strongly-organised workplaces (‘hot shops’) shrinking, but the logic of enterprise bargaining acts to impose more and more intense pressure on such workplaces. Thus, even in these strongly-organised workplaces, unions are increasingly threatened by the rise of casual employment, often in the form of an employer threat of the direct replacement of jobs by means of mechanisms such as temporary agency work. The main thrust of current union initiatives is towards revision of the casual clauses in awards. There is no clear agreement on the content of such a revision. It is possible to detect activity with each of the three mechanisms distinguished earlier. There is a continued interest in designing restrictions on casual employment. Quotas are no longer allowable in awards, but there is still room for limits in the form of specification of the circumstances in which employers can use casual employment and specification of maximum periods of engagement. Initiatives in this arena return to the theme of de-casualisation announced in the early 1990s, though with some differences. This time the initiatives are not confined to part-time employment. Moreover, they take up more clearly the idea that de-casualisation is to start with ‘long-term’ casuals. A case brought by the Australian Services Union (ASU) in relation to the Clerks (South Australia) Award pointed to the widespread abuse of the category of casual to deny workers standard rights and benefits. Building on the long-standing principle of maximum periods of engagement, the decision set out a principle of allowing casual employees after 12 months employment to elect to convert to permanent employment. The decision was overturned on appeal (in March 2001), but it drew attention to the potential of conversion clauses (Owens, 2001, 122-123). A conversion clause was also a prominent feature in a subsequent case to vary the Metals, Engineering and Associated Industries Award 1998 (the ‘Metals Award’), brought by the Amalgamated Manufacturing Workers’ Union (AMWU) before a Full Bench of the Australian Industrial Relations Commission (AIRC). The AMWU had been considering award regulation for some time (see AMWU, 1995, 1996) and had commissioned research on the impact of casualisation in manufacturing and the options for action (ACIRRT, 1999b).11 The case was potentially very important because the Metals Award 11 The AMWU announced a Jobs and Hours campaign in early 1999, which – amongst other issues – focused on strategies to deal with casuals and contractors. As part of this campaign, the union has undertaken a comprehensive action-research project to examine options for non-standard employment. The ACIRRT report (1999b) looks at the data on casuals and contractors, pointing out that the two are intertwined in manufacturing. There are many ‘in-house’ casuals in some sections of manufacturing, eg food processing, and in smaller enterprises. But from the perspective of the large shops, in which the union presence is strongest, casual work more usually intrudes as a result of the use of labour-hire contractors who bring in casual employees. The ACIRRT report incorporates consultations with AMWU delegates and officials, as a preliminary to a fuller survey of delegates, in order to assess the level of familiarity with the problem, to review present forms of workplace regulation, and to canvas long-term strategies. The report brings out the difficulties encountered by casuals as well as the threat they pose to permanent conditions. It draws attention to the tension in the attitude of many delegates to casuals, ie between seeking to organise and represent them or to respond to the immediate impulses of the permanent workforce by seeking to exclude them (1999b, 21-22, 32). In particular, it offers a good review of existing practices of shop floor regulation, as well as the efforts of employers to avoid regulation (1999b, 28-30). It points to both the

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has been a pacemaker award, with an expectation of ready flow-ons to other awards. Moreover, the AMWU claim was a wide-ranging one (AMWU, 2000). The case ran *throughout 2000 and attracted significant interventions by several employers’ associations, the federal government and a barrage of expert witnesses. The decision was handed down at the end of December 2000. The decision affirmed the validity of the use of casual employment by employers. However, the Commission accepted much of the evidence that ‘permanent casual’ employment in the metals and engineering industry was growing, was based on an entrenched diminution of workers’ rights, and required action to reduce its incidence (AIRC, 2000; Owens, 2001; Mylett, 2003). It declared that “we consider that a compelling case has been established for some measure to be introduced in the Award to discourage the trend toward the use of permanent casuals” (AIRC, 2000, 117). It rejected the union’s claim for a definition of casual employment that would restrict it to meeting short-term work needs, emergency work or work that could not practically be rostered to permanent employees. It required an increase in the casual loading from 20 to 25 percent, a minimum start for casuals of four hours, and written notification on engagement about the actual or likely hours required of casual employees. Given the Commission’s rejection of the claim for a restrictive definition, much rested on the attitude taken towards the idea of a conversion right. The Commission rejected the argument that such a conversion right would represent a quantitative limitation. It granted a right to casual employees with at least six months regular and systematic service to ‘elect’ to become an ongoing employee. A subsequent set of orders elaborated on the ability of the employer to refuse this ‘election’ (though s/he “shall not unreasonably refuse”). The decision in the Metals Award case was hailed by the AMWU as “a decision that spells the end of the growing casualisation of the Australian workforce” (AMWU, 2001). This is hyperbole. The case was confined to a single award in a single industry. Its major achievement was the conversion clause, which gives individual casual employees enhanced rights to choose between casual and permanent employment. However, as a form of restriction, this is indirect and uncertain in its effectiveness. It is manifestly weaker than provisions for a maximum period of engagement, since elapse of time does not trigger an automatic conversion but only the possibility of a claim for conversion (Owens, 2002). Early reports on the consequences of the decision suggest that this right has only been lightly used, largely because of the weak position of casuals (and the immediate attraction of a casual loading to low-paid workers). This is understandable. Giving more rights to individual employees is an attractive principle, but it needs to be buttressed by measures to ensure that individual workers have the power resources to exercise genuine free choices. This need is particularly apt in the case of casual employees, who lack access to any power resources. In the absence of such reforms, individual rights such as the right to convert can appear as just a fig leaf. Moreover, even if conversion could be generalised, it is not clear that it would automatically serve individual and collective interests. The earlier initiatives in retail and hospitality pointed to the importance of ensuring that the ‘permanent’ status gained as a result of conversion

strengths and the weaknesses of an exclusive reliance on shop floor regulation in a context where casual employment is increasingly organised through intermediary firms.

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is not a degraded form of permanency that would reproduce casual conditions under another name. In spite of the low take-up in the metals industry, there is extensive interest in generalising the principle of conversion rights for casual workers (ACTU, 2003). In July 2003 the NSW Labor Council, supported by four unions, announced its intention to lodge an application for a new Secure Employment Test Case (Marr, 2003). The centrepiece, apart from efforts to introduce specific regulation on contracting out and labour hire, would be an effort to follow the federal Metals Award formula to give regular casuals the option of converting to permanent after six months. The second mechanism distinguished earlier is based on specifying more carefully the deficit in rights and benefits between temporary work and permanent work. I suggested that in Europe trade unions are placing greater emphasis on improving the quality of temporary work, in particular by extending rights and benefits to temporary employees (and thereby minimising the deficit with permanent employment). There are hints of a similar shift in Australia, though it is still somewhat tentative and has not been consciously adopted as an approach. Thus, recent years have seen several initiatives towards an extension of the conventional benefits of permanent employment to long-term casuals. The two main examples are protection against unfair dismissal and unpaid parental leave. Under federal and state legislation regulating unfair dismissal legislation, it is possible in principle – though difficult in practice – for some long-term casuals to claim protection against unfair dismissal. Unpaid parental leave was introduced into awards as a benefit for employees with 12 months continuous service as a result of the Maternity Leave Test Case in 1979. However, as is common in such cases, casuals were excluded. The entitlement was subsequently taken up in federal legislation, but again casuals were excluded. In response to a recommendation from a 1999 inquiry into Pregnancy and Work (HREOC, 1999), legislation in NSW and Queensland extended this to some long-term casuals, but the federal Coalition government refused the recommendation. To push the issue forward, the ACTU devised a Parental Leave (Casuals) Test Case in early 2001, which eventually attracted the support of most employer associations and was opposed only by the federal government. The decision in this case *granted the ACTU application to amend award provisions in order to extend the entitlement to unpaid parental leave to ‘long term casual employees’ (defined as “any casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis”) (Watts, 2001; Owens, 2001). The same idea of extending the benefits of permanent employment to long-term casuals underlies current initiatives, both in Queensland (Whitehouse and Rooney, 2003) and in the federal jurisdiction, to update award provisions for severance pay. Included as part of the unions’ applications is a claim for severance pay for long-term casuals. This approach has several advantages, not the least of which are its transparency and comprehensiveness. But it is not clear how it articulates with parallel efforts to eliminate

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long-term casual employment by means of new forms of restrictive regulation. Certainly, extending all the standard benefits of permanent employment would tend to narrow the deficit in rights and benefits to zero and could be seen as a backdoor way of eliminating long-term casual employment. But this is likely to be a slow process. Moreover, it can also be objected that this approach leaves many casual employees – those who fall short of the conventional threshold of 12 months (or 24 months) job tenure – bereft of much-needed protection. Apart from the disadvantages to the individual employees, this risks creating incentives for employers to release casual workers when they approach the specified threshold. The third mechanism distinguished above concerns compensation for temporary employees. This plays a major role in Australia, in the form of the ‘casual loading’. Trade unions have traditionally emphasised the goal of raising the loading, though more as an indirect avenue of limiting casual employment rather than as a compensatory device. They continue to give it emphasis. As noted above, the Metals Award case included a claim to increase the casual loading. Similarly, a case launched by the Queensland Council of Unions (QCU) in late 1999 aimed at increasing the casual loading in all Queensland state awards. The eventual decision lifted the loading from 19 percent to 23 percent (Whitehouse and Rooney, 2003). The unions did not ask for an increase in order to establish a deterrent. In both cases the increase was sought on the basis of compensation for foregone benefits, and the increase was granted on these grounds.12 The continued commitment of the unions to this third mechanism can perhaps be understood, because of its long existence in the Australian system and the ease of mounting arguments for change. However, it is hard to justify from any strategic point of view. All the evidence suggests that it is an extremely blunt weapon for limiting casual employment, since it cannot successfully cover the many sources of cost advantage for employers. Even if precisely calculated, the casual loading only refers to equivalent hourly wage costs and it misses the manifold other cost advantages to employers, eg as a result of only deploying casual labour during peak periods, as a result of keeping casual workers on the bottom of classification scales, and as a result of not paying penalty rates for work during unsocial hours (Campbell, 2001, 81-86). The casual loading can of course be justified as a compensation for employees, but this is problematic from a union point of view since it represents a ‘cashing out’ of rights and benefits that should be inalienable. Moreover, not all the benefits of permanent employment can be quantified for the purposes of compensation. Again, it is difficult to see how it is articulated with the use by unions of the previous two mechanisms. Indeed any consolidation of the casual loading impedes efforts to improve conditions for casual employees by extending these rights and benefits to them.

12 The decision in the Metals case did seem to have difficulty in reconciling the different elements. It identified the casual loading as part of the safety net of wages and conditions, but also suggested that calculation of a loading equivalent to foregone benefits would serve to ensure that casual employment was not more advantageous for employers (Owens, 2001, 129-130).

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In short, this approach does not threaten casual employment. Instead it “effectively reinforces the notion of casual status and endorses the extension of casual employment” (Whitehouse and Rooney, 2003, 72). ii) New initiatives in representation As in other Anglophone countries, ‘organising’ has been enthusiastically adopted as a central theme by the trade union movement. At least initially, the emphasis on organising was largely rhetorical, but since the change of federal government and the advent of a new leadership in the ACTU it has increasingly been taken up and translated into practice (ACTU, 1999, 45; see Cooper, 2001). However, it suffers from several limitations. The ‘organising model’ is conventionally counterposed to the ‘servicing model’. However, in Australia ‘organising’ has been given a rather narrow interpretation, which seems to be comfortably adapted to an environment of single-employer bargaining and seems to share many of the same frailties as conventional ‘servicing’ approaches (Smith and Ewer, 2003). It has often failed to answer the fundamental question: organising for what? In spite of its limits, the stress on ‘organising’ is welcome and undoubtedly useful in helping to generalise a trade union consciousness. It is readily interpreted to mean organising new areas and neglected categories of employees. But it has emerged at the same time as union density has plummeted. There is little evidence that the stress on organising has interrupted or even slowed down this decline. Union density has fallen from 45.6 percent in 1986 to 23.1 percent in 2002 (Table 3). The decline in union strength and influence has its major effect on permanent employees, but it also spills over to affect casual employees. Casual employees are frequently identified as a major target group in trade union efforts at organising, but the failure of these efforts is clear. As Table 3 indicates, union density amongst casual employees is not only low but also falling rapidly. Unionisation amongst casual employees slipped from 21.0 percent in August 1986 to only 8.7 percent in August 2002, an even more precipitous fall than for permanent employees.13 TABLE 3 ABOUT HERE New forms of representation are scarce in Australia. Some unions have tried to create internal structures to accommodate casual employees. In blue-collar areas hard hit by retrenchments and contracting out, some unions have helped to establish non-profit temporary agencies. Waring (2003, 93-94) refers to one interesting example in coal mining. More broadly, there are signs of independent activism. One campaign, under the banner of Unite, has sought to organise casual workers in restaurants and book stores in Melbourne, and it has scored a few successes with traditional campaign techniques.

13 Slightly higher figures for union density are available from the SEAS in 2000. These data suggest that amongst permanent employees the figure for union density was 33.5 percent, amongst fixed-term employees it was 24.6 percent and amongst casual employees it was 11.3 percent (ABS Cat. No. 6361.0, May to June 2000).

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iii) Assessment The new union initiatives to handle the challenge of casual employment are promising. But it is clear that much murkiness and inconsistency remains. Moreover, there is little evidence that these initiatives have led to success in altering the extent or the quality of casual employment. More strategic thought is needed. Unfortunately, Australian unions remain hampered by a lack of research capacity, an absence of any open forums for debate and discussion, and a long tradition of suspicion of the dangers of intellectual discussion. Whatever strategic thought occurs within unions seems to be tightly constrained and is rarely exposed to scrutiny and debate. There is some commentary from labour-oriented academics, either in the context of discussion of union strategies (Campbell, 1996; Burgess and Ryan, 1996; Whitehouse and Rooney, 2003) or more broadly (Smith and Ewer, 1999; Pocock, 2003; Pocock, Buchanan and Campbell, 2004). Campbell (1996) stresses the path of re-regulation, but appeals for a broader approach that would move beyond the shrinking sphere of arbitration and awards and that would focus on employment conditions not employment status. Burgess and Ryan (1996) similarly note the need for more attention to workforce re-regulation, but they add some suggestions for internal changes such as flexible fee structures, flexible trade union structures and greater inter-union co-operation. Smith and Ewer (1999) criticise the inadequate regulatory framework in Australia, but their recommendations presume continuing to work within the present framework of arbitration and awards and continuing to work with a wide range of mechanisms, including the casual loading. Whitehouse and Rooney (2003) pick up two of the approaches noted above – the extension of entitlements to long-term casuals and increases in the casual loading – and note the contradiction or essential conflict between the two. They suggest that both approaches are limited but their article does not identify any way forward except through their judicious combination. Pocock (2003) outlines some useful ideas for improving the conditions of part-time casual workers. Junor (2004) examines the diverse situation of casual staff in tertiary institutions and argues for a differentiated approach to accommodate the different needs and preferences. Pocock, Buchanan and Campbell (2004) concentrate on the first approach – design of restrictions on casual employment – and advocate a comprehensive approach that would use a range of levers including legislation to eliminate long-term casual employment… … 5. Conclusion …

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Table 1: Full-time and part-time ‘casual’ employees as a percentage of all full-time and part-time employees, 1984-2003 a)

year b) full-time

‘casual’ employees part-time

‘casual’ employees total

‘casual’ employees ‘000 casual

density %

‘000 casual density

%

‘000 casual density

% 1984 277.5 6.2 570.7 62.4 848.2 15.81985 287.6 6.3 599.7 61.9 887.3 16.11986 325.7 7.0 653.6 63.7 979.3 17.21987 331.0 7.1 733.2 64.4 1064.2 18.31988 368.9 7.5 784.0 66.4 1152.9 18.91989 323.6 6.3 887.0 68.5 1210.6 c) 18.61990 374.4 7.2 897.4 65.7 1271.8 19.41991 336.3 6.8 943.7 67.5 1280.0 20.31992 353.5 7.4 1061.5 67.7 1415.0 22.31993 404.7 8.4 1030.4 67.2 1435.1 22.71994 441.3 9.1 1107.8 67.0 1549.1 23.71995 482.7 9.5 1170.6 65.8 1653.3 24.01996 559.1 10.8 1282.2 67.5 1841.3 26.11997 538.4 10.6 1257.1 65.6 1795.5 25.81998 617.5 11.8 1328.6 65.4 1946.1 26.91999 576.6 11.1 1355.0 64.6 1931.6 26.42000 647.3 11.9 1450.0 64.6 2097.3 27.32001 630.8 11.6 1486.7 64.2 2117.5 27.22001r d) 729.6 13.2 1388.0 61.5 2117.6 27.22002 d) 734.8 13.2 1425.5 60.4 2160.3 27.32003 785.5 13.8 1454.3 60.4 2239.9 27.6 ‘casual’ = employees who were not entitled to either annual leave or sick leave in their main job’. From August 2000, the terms ‘permanent’ and ‘casual’ were replaced in ABS publications with new terms: ‘with leave entitlements’ and ‘without leave entitlements’ respectively (see ABS, Employee Earnings, Benefits and Trade Union Membership, August 2000, ABS Cat. No. 6310.0, p. 48). a) [wage and salary earners in their main job] the population is persons aged 15 and over (except for 1990, when persons aged 70 and over were excluded). b) August figures (except for 1991, when the figures are for July). c) the figure for total employees includes 102,200 persons whose full-time and part-time status in their main job could not be determined. d) prior to 2002 full-time and part-time status in main job was derived from a self-perception question. From 2002 full-time and part-time status in main job has been derived from the data on hours worked in main job. The revised figures for persons in 2001 are according to the new method (published together with the August 2002 figures). Source: Figures for casual employees are from: ABS, Alternative Working Arrangements, March to May 1982, Cat. No. 6341.0; ABS, Employment Benefits Australia 1984, 1985, 1986, 1987, Cat. No. 6334.0;

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Romeyn 1992; ABS, Weekly Earnings of Employees (Distribution) Australia 1989, 1991, 1992, 1993, 1994, 1995, 1997, ABS Cat. No. 6310.0 and Product No. 6310.0.40.001; ABS, Trade Union Members Australia, 1996, Cat No. 6325.0; ABS, Employee Earnings, Benefits and Trade Union Membership Australia, 1998, 1999, 2000, 2001, 2002, 2003, Cat. No. 6310.0.

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Table 2: ‘Casual’ employees and casual density in industry divisions, 1985-2003

‘Casual’ employees

(‘000)

Casual density (%)

2003 1985a 1994 2000 2003 Agriculture, forestry and fishing 97.2 38 47.6 56.7 53.5 Mining 10.7 2 9.3 9.2 14.6 Manufacturing 173.5 8 13.3 15.0 17.1 Electricity, gas and water 8.5 1 * *5.8 10.6 Construction 148.9 18 30.2 31.1 30.4 Wholesale trade 76.9 10 14.5 17.8 19.5 Retail trade 553.2 33 44.0 45.2 44.2 Accommodation, cafes and restaurants 247.3 50 54.4 57.4 58.9 Transport and storage 81.3 10 16.9 23.9 22.4 Communication services 22.6 4 7.5 15.0 14.8 Finance and insurance 35.0 4 6.8 11.7 10.8 Property and business services 283.9 19 26.9 31.8 30.3 Government administration and defence 33.3 8 8.4 7.7 8.2 Education 120.9 15 15.9 17.1 17.9 Health and community services 188.4 18 21.2 21.8 21.9 Cultural and recreation services 84.9 30 44.2 44.1 45.2 Personal and other services 73.5 21 21.4 22.6 25.0 Total industries 2239.9 16 23.7 27.3 27.6 (a) figures are rounded to the nearest percent. * relative standard error greater than 25 per cent. ‘casual’ = employees who were not entitled to either annual leave or sick leave in their main job’. From August 2000, the terms ‘permanent’ and ‘casual’ were replaced in ABS publications with new terms: ‘with leave entitlements’ and ‘without leave entitlements’ respectively (see ABS, Employee Earnings, Benefits and Trade Union Membership, August 2000, ABS Cat. No. 6310.0, p. 48). Source: unpublished 1985 ABS data cited in Reith, 2000, 7; ABS, Trade Union Members Australia, August 1994, Cat. No. 6325.0; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 2000, August 2003, Cat. No. 6310.0.

33

Table 3: Employment and union density – ‘permanent’ and ‘casual’ employees,

1986-2002

‘permanent’ employees ‘casual’ employees all employees

number (‘000)

union density

(%)

number (‘000)

union density

(%)

union density

(%)

1986 4704.1 50.8 979.3 21.0 45.6

1988 4949.0 46.6 1152.9 19.7 41.6

1990 5293.8 45.7 1271.8 18.8 40.5

1992 4919.8 46.0 1415.0 17.2 39.6

1994 4976.7 41.3 1549.1 14.7 35.0

1996 5220.9 37.4 1841.2 13.1 31.1

1998 5298.7 34.2 1946.1 11.6 28.1

2000 5598.3 30.6 2097.3 8.9 24.7

2002 5766.7 28.5 2160.3 8.7 23.1 ‘Permanent’ = ‘employees who were entitled to annual leave or sick leave in their main job’; ‘casual’ = employees who were not entitled to either annual leave or sick leave in their main job’. From August 2000, the terms ‘permanent’ and ‘casual’ were replaced in ABS publications with new terms: ‘with leave entitlements’ and ‘without leave entitlements’ respectively (see ABS, Employee Earnings, Benefits and Trade Union Membership, August 2000, ABS Cat. No. 6310.0, p. 48). Source: ABS, Trade Union Members, Australia, August 1988, 1990, 1992, 1994, 1996, Cat. No. 6325.0; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 1998, 2000, 2002, Cat. No. 6310.0.