The legal precariousness of casual employment : an examination of the legal regulation of the Australian labour market pre-2006

Are casual jobs inferior jobs? This issue is usually framed in the labour law literature by asking whether casual employees are legally precarious in the sense of enjoying fewer rights and benefits compared to those conferred upon permanent employees. The answer, according to most labour law scholars, is `yes'. The characterisation of casual employees as legally precarious is, however, problematic because of its underlying legal understandings. Foremost perhaps, many scholars erroneously ascribe a uniform contractual character to casual employment. Moreover, they wrongly presume that the contractual arrangements under which a casual worker is employed necessarily determines his or her access to protection and benefits. Further, there has been insufficient appreciation of the complex interaction between various definitions of casual employment. It is these difficulties that give rise to the principal question for this thesis: To what extent are casual employees legally precarious in the sense of enjoying fewer rights and benefits compared with those conferred upon permanent' employees? . This question can be broken down into two subsidiary questions: 1) What are the rights and benefits enjoyed by casual employees? 2) How do such rights and benefits compare with those afforded to `permanent employees? This thesis addresses these questions in three key areas of labour protection: protection against dismissal; income security and access to standard leave entitlements. In addressing the first sub-question, the thesis finds that, as the law stood. on 1 December 2005, casual employees enjoy varying levels of protection in all three areas. Much the same applies to permanent employees (as defined by this thesis). These varying grades of protection largely result from the fact that the availability of labour protection depends on a multiplicity of factors of which permanent/casual status is merely one consideration. When the rights and benefits of casual and permanent employees were compared, the conclusion was reached that casual employees, as a class, are not necessarily legally precarious in these three areas of protection. Neither can it be said that casual employees, as a class, are necessarily legally precarious in each of these areas. There is, however, a group of casual employees that are legally precarious in all three areas. It can be tentatively concluded that these legally precarious casuals form a significant proportion of workers considered by the Australian Bureau of Statistics to be casual employees. Conversely, some casual employees are not legally precarious in all three areas. Again it can be tentatively suggested that these protected casuals form a meaningful proportion of ABS casual employees. The thesis concludes by proposing a preferable approach to conceiving the question of legal precariousness. What appears to underlie the problematic answer given by labour law scholars to the question of legal precariousness is a binary model that equates permanent employment with protection, and casual employment with inferior protection or a lack of protection. A preferable approach to the legal precariousness of casual employees is to see the protection afforded to casual and permanent employees through a continuum model. This model, not only recognises the varying grades of protection enjoyed by casual and permanent employees but it also reformulates the question of legal precariousness. Instead of asking whether casual employees enjoy fewer rights and benefits compared to those conferred upon permanent employees, the question becomes: Is a worker or a particular group of workers legally precarious in the sense of not enjoying standard rights and benefits

Employment protection of casual employees

© 2003 Joo-Cheong ThamSummary of Argument: This paper aims to make a contribution to the literature by examining the employment protection of workers characterised by the Australian Bureau of Statistics as casual employees (' ABS casual employees'). In undertaking this examination, this paper seeks to compare the employment protection of ABS casual employees with that available to other employees. The examination commences by discussing the key approaches that courts and industrial tribunals have taken in determining whether a worker is a casual employee under a particular industrial instrument. It then analyses the employment protection of ABS casual employees in the following areas: • protection against unfair dismissal; • entitlement to notice at common law and statute; and • protection in the event of redundancies. It concludes that the employment protection of ABS casual employees is generally inferior to that available to other employees with a sub-group of such employees, namely, those engaged pursuant to a series of distinct contracts enjoying even more slender employment protection

Regulating political contributions: another view from across the Tasman

This article compares the Australian and New Zealand electoral finance regimes, with a particular focus on political contributions. Three specific areas are examined: disclosure of contributions; limits on contributions; and regulating the sale of access and influence. This examination is underpinned by what I see as the key purposes of democratic political finance regimes (Tham, 2010, ch.1): protecting the integrity of representative government, an aim which encompasses the prevention of corruption; promoting fairness in politics, especially in elections; supporting parties to discharge their functions; respecting political freedoms, in particular freedom of political expression and freedom of political association.&nbsp

Regulating the funding of NSW local government election campaigns

This report provides a comprehensive assessment of the funding of New South Wales local government election campaigns and makes a series of recommendations for change. The report examines the distinctive structure of NSW local government and its electoral system, the regulation and patterns of election funding at this level of government, the risks posed by such funding, and the question of reform. It makes ten recommendations. In order to deal with the more significant risk of corruption and undue influence, it recommends: • pre-election disclosure obligations; • limits on political donations; • disclosure of all political donations received by councillors above a nominal amount; • the recusal of councillors when significant political donations have been received by the councillor/s or his or her political party.  In order to deal with the challenge of promoting fairness in local government elections, it recommends caps on election spending set at a much lower level than those enacted by the Act covering state elections, with the level of caps determined according to the number of electors to take into account the distinctive character of the NSW local government electoral system. It, however, recommends against the introduction of public funding for NSW local government election campaigns, arguing that there is no demonstrated case for such funding

Money and politics: Why it matters to human rights

Presented by Dr Joo-Cheong Tham, with commentary from Sam McLean of GetUp!, this lecture discusses regulation, political financing and transparency and how these issues affect democracy and human rights reform. Part 1: 14:37 Watch the next four episodes at the CastanCentre\u27s YouTube Channe

Why the Kurdistan Workers Party should not be banned

Banning the PKK is unjust and unproductive, argues Joo-Cheong Tham AS THIS YEAR’s Anzac Day recedes into memory and the crowds depart from Gallipoli, we might do well to note a conflict that continues to rage in Turkey. Since at least the end of the first world war, Kurdish groups have fought against Turkish rule. At times, the claim was for a separate Kurdish state; more recently the emphasis has been on increased Kurdish autonomy. In this conflict, violence has been used by both sides, not uncommonly against civilians. Human Rights Watch, for instance, has documented how the Turkish government has engaged in the forcible evacuation of up to half a million Turkish Kurds. Another weapon the Turkish government has in its arsenal is the labelling of Kurdish groups as ‘terrorist’. Following this lead, countries like the United Kingdom, United States and Canada have listed the Kurdistan Workers’ Party, or PKK, as a ‘terrorist’ group. On 15 December 2006, the Australian government also banned the PKK as a ‘terrorist organisation’ under the criminal code. In a report released last Wednesday, a majority of the Parliamentary Joint Committee on Intelligence and Security endorsed the ban, while a robust dissent by a former Labor justice minister, Duncan Kerr, and the former Labor leader in the Senate, John Faulkner, urged the government to reconsider the proscription. The Kerr-Faulkner minority position stands on much firmer ground than the majority report. Foremost, the PJIS unanimously found no evidence that the PKK posed a specific threat to the security of Australian citizens. This is unsurprising given that the objective of the PKK is, according to the federal government, the promotion of the rights of Kurds. Before the parliamentary committee, ASIO defended the banning of PKK on the basis of a general threat to Australian tourists visiting Turkey. Even if this weak rationale is accepted, why then is the Turkish government not being banned as a ‘terrorist organisation’? Being a protagonist to the conflict, it has clearly contributed to the threat; it definitely falls within the criminal code’s definition of a ‘terrorist organisation’ by virtue of its political violence against Turkish Kurds. Such selectivity points to the role of foreign policy considerations. The banning of the PKK was announced on 15 December 2005, a week after the visit to Australia by Recep Erdoğan, prime minister of Turkey. This at least raises the suspicion that the banning of the PKK was at the instigation of the Turkish government. The majority of the parliamentary committee found no evidence that the Turkish PM’s visit had influenced the timing of the proscription. What it did not reject, however, was the possibility that the banning was influenced by the Turkish government. In fact, DFAT admitted that it received a request from the Turkish government to ban the PKK, which it claimed was forwarded to ASIO and the Attorney-General’s Department seven months before the banning - a claim denied by ASIO. The suspicion remains that the proscription power, instead of being used to prevent political violence, has been put to the aid of foreign policy goals. No comfort is drawn from ASIO’s latest annual report, which states that its ‘terrorism investigations are aimed at identifying activity that is prejudicial to the security of Australia or to the security of other countries’ (emphasis added). Worse, the banning of the PKK, as the dissenting report states, will inflict ‘potentially catastrophic community impact’ on thousands of Australian Kurds. It imposes criminal liability upon persons who engage in certain forms of association with the PKK. In other words, it imposes guilt by association and breaches the principle that criminal liability should be based on an individual’s actions in causing harm. An Australian Kurd voicing support for the PKK’s peaceful activities would likely be caught by these offences. These repressive consequences are exacerbated by several matters. As the dissenting report pointed out, many Australian Kurds view the PKK as a ‘legitimate national liberation movement’ and would support its aims even if they did not agree with some of its tactics. The banning of the PKK then potentially criminalises an entire community. This is compounded by the fact that the PKK has military and political wings, yet the banning draws no such distinction. Australians financing the PKK’s political wing to assist its negotiations with the Turkish government, for instance, would be committing a crime punishable by a maximum of 25 years’ imprisonment. Also, some Australian Kurds have been accepted as refugees on grounds of political persecution based on their PKK sympathies. Banning the PKK potentially criminalises these refugees for the very reasons they were granted asylum. This borders on inhumane. In sum, the banning of the PKK illustrates the arbitrary and repressive character of the government’s power to ban ‘terrorist’ organisations. Far from making Australians more secure, it is likely to criminalise an entire community. In many ways, it highlights the danger of the ‘war on terror’ becoming a ‘war of terror’ with laws used as instruments of state terror. • Joo-Cheong Tham is a law lecturer at Melbourne University. He is also a committee member of Liberty Victoria and co-wrote Liberty Victoria’s submission opposing the banning of the PKK. Photo: Mike Bentley/ iStockphoto.co

The government should not hinder Habib

Mamdouh Habib should be allowed to earn a living, argues Joo-Cheong Tham EARLY last year, a bill was tabled in federal parliament proposing various changes to the proceeds of crime laws. The effect of these complex changes was that individuals who had engaged in conduct that was illegal in a foreign country but not necessarily illegal in Australia at the time it was committed would now be liable to confiscation orders. If it could be proven that their conduct was illegal in Australia at the time the government applied for a confiscation order then any income earned from notoriety associated with that conduct could be forfeited to the government. The overwhelming majority of submissions to a Senate inquiry opposed these changes and, it must be said, with good cause. Confiscation orders could be issued without the need for a conviction in a proper court of law. Hence, there was the iniquity of punishing individuals who had not been convicted of any crime as. Indeed, the statute expressly stated that an acquittal did not affect the ability to issue such orders. And then there was the unfairness of relying upon conduct that was not illegal in Australia at the time it was committed as the basis of a confiscation order. With no time limit on when the government could apply for a confiscation order, there was no statutory bar against the government applying for an order in relation to conduct that was made illegal decades after it was engaged in. Significantly, there was also recognition for the first time in Australian law of the Guantanamo Bay military tribunals. This prompted some to argue, with some prescience, that the effect of these changes, if not the intent, would be to impair the public’s ability to know of conditions existing in Guantanamo Bay. Community opposition was, however, swept aside when these changes became law through the enactment of the Anti-Terrorism Act 2004. And it is this set of changes that the government is threatening to use against Mamdouh Habib. It appears that it relying upon the allegation that Mr Habib trained with al-Qaeda in order to forfeit any money earned by him in publicising the detention conditions at Guantanamo Bay. Its success in doing so is, however, far from assured. For one, the constitutionality of these provisions is uncertain. Their impact upon freedom of speech raises the question whether they infringe the implied freedom of political communication. Investing a federal court with the power to punish without the need for a proper conviction might also breach the separation of judicial power. It is also unclear what foreign offence the government is relying upon. Moreover, a confiscation order is issued at the discretion of the court. If the government seeks to confiscate income that Mr Habib has earned through publicising the conditions at Guantanamo Bay, a key factor for the court will be the public interest in making these conditions known. Evidently, this factor will weigh heavily in Mr Habib’s favour. Most of all, the government’s case will depend on the proof it has specifically in relation to the allegation that Mr Habib trained with al-Qaeda. That the US government has released Mr Habib for lack of evidence should, at the very least, suggest some scepticism on this point. These legal questions aside, there are good reasons in principle why the government should not be using these provisions against Mr Habib. Even if there were adequate proof of him training with al-Qaeda, he is still being punished for conduct that was not illegal in Australia at the time it was engaged in. Such retrospective criminal punishment is an open breach of the rule of law. This is no mere technicality. The rule of law, by insisting that our conduct be governed by the law that applies at the time it was committed, assures us a modicum of freedom in planning our lives. This breach of the rule of law will be all the more egregious given the breadth of proceeds-of-crime laws. Take, for example, a situation where Mr Habib uses his status as a Guantanamo Bay detainee to advocate the rights of prisoners and in the process received speaker’s fees to cover his costs. In these circumstances, the government, assuming it had credible evidence of Mr Habib training with al-Qaeda, could seek to confiscate such fees. Most significantly, Mr Habib has not been convicted of any crime. That he has been maligned by the government as a terrorist does not detract from this fundamental fact. Neither does surveillance by the police nor an adverse security assessment by ASIO. To accept otherwise would be to sanction conviction on the basis of government say-so. It should then be stated in no uncertain terms that, in the absence of a proper conviction, Mr Habib is entitled to the presumption of innocence. He should be able to exercise the freedoms normally available to other Australian citizens. This must include the ability to earn a living to feed himself and his family, whether it be through his experience as a Guantanamo Bay detainee or otherwise. And so it is that proper respect for the rule of law and the presumption of innocence means that the government should not attempt to confiscate money earned by Mr Habib. • Joo-Cheong Tham is a lecturer in law at the University of Melbourne. He specialises in Australia’s anti-terrorism laws and is a committee member of Liberty Victoria. Photo: Andrew Jeffre

The ossification of Australian politics

Excessive parliamentary entitlements and unregulated private funding give enormous advantages to the major parties, argues Joo-Cheong Tham AUSTRALIA’s federal parliamentarians receive generous funding from the public purse. Entitlements range from parliamentary salaries down to a variety of allowances like the printing allowance. A recent Age article (30 October 2004) highlighted the escalating generosity of the deal, reporting that federal parliamentary entitlements have increased from $354 million for the 1999-2000 financial year to nearly$400 million. Both the size and the nature of this public funding raise serious questions for Australia’s democracy. Public funding of parliamentarians is not, in itself, the problem. Indeed, such support is crucial in any robust democracy - clearly, parliamentarians require funding to represent their constituencies and govern the country. Moreover, public funding has significant appeal. Unlike political donations, it is not tainted by the risk of corruption and undue influence. Properly designed, such funding can also ‘level the playing field’ by ensuring that the electoral contest is open to all. For example, electoral funding, which is calculated according to the number of votes secured by a party, provides a modicum of support to parties that do not enjoy business patronage. Similarly, parliamentary salaries ensure that political office is not a privilege of the wealthy. But problems arise in how this public funding is distributed. The current arrangements for funding MPs through parliamentary entitlements suffer from grievous weaknesses. First, parliamentary entitlements are largely ineffectual in preventing the corrosive effects of political donations. This is simply because they are not tied to any conditions about private funding. Specifically, parliamentarians and their parties remain free to receive substantial corporate contributions. Not only can political donations bring corruption and influence in their wake, but they also distort the electoral contest because of the unequal flow of private money. For example, for each first-preference vote received in the 2001 federal election, the Coalition and the Labor Party garnered more than double the private money than the Greens and the Democrats received. Parliamentary entitlements further entrench the political advantage enjoyed by the major parties because they are distributed inequitably. Australia’s electoral system ensures that the major parties secure parliamentary representation greater than their overall electoral support, because the House of Representatives is not elected under a system of proportional representation. This effect is compounded by the constitutional imperative that the number of House of Representatives members be twice the number of senators. Given that parliamentary entitlements are provided on a per-parliamentarian basis, the major parties therefore reap a disproportionate benefit. So the current system of parliamentary entitlements suffers from two vices: it makes no serious attempt to neutralise the risks of political donations, and it exacerbates political inequality. Its effect on political equality should be of particular concern because of the amount of money involved - $400 million spent on parliamentary entitlements in a single year. Significantly, many of these entitlements, like the printing and electorate allowances, can easily be used for campaign purposes. The vices of public funding stem from the fact that its recipients, the major political parties, control its size and its distribution. There is an obvious risk that public funding is provided in a manner that serves the interests of the major political parties while undermining the health of Australia’s democracy. Indeed it should be clear by now that this risk has been realised with parliamentary entitlements. The result is an ossification of Australian politics: the major parties, through a mixture of excessive parliamentary entitlements and unregulated private funding, enjoy tremendous incumbency advantages while minor and new parties struggle with inferior resources. Joo-Cheong Tham is an Associate Law Lecturer at La Trobe University. Photo: Andrew Jeffre