CICA, Features

Adapting to the challenges of change

With the COVID pandemic forcing change throughout our industry, CICA looks to some positive initiatives and farewells an industry stateman.

It is with mixed feelings that I write the President’s report for the September / October 2020 issue of the Cranes and Lifting magazine for a couple of reasons.  Any other year, a proportion of this issue would be dedicated to the CICA National Conference with a program insert and conference highlights.  The National CICA Conference, like so many things this year has been cancelled. The COVID-19 pandemic continues to change so much, for so many people and no matter which state you reside in, you will be trying to navigate this new normal.

The reason I say “mixed feelings”, is because this issue also represents the positives that can come from adapting to change. Prime Creative Media publishes this magazine and put their collective heads together to commendably adapt to create the “Cranes and Lifting 2020 SHOWCASE”, which will be made available to readers from the mining and construction sectors on Prime Creative Media’s other platforms and in other publications. It is a great opportunity for CICA Member exposure for our industry and businesses.

Change in life is inevitable but adapting to the current challenges in business right now requires grit, perseverance, and faith in your structure and team. Whatever position your business is in now, you are not alone, and it is important that you reach out to speak to someone if you are struggling. Victoria is doing it particularly tough at the moment, but no state is exempt from outbreaks and changing conditions. Mindspot (www.mindspot.org.au) and MATES in Construction offer services that will anonymously provide resources and counselling because as John Donne, 17th century author wrote ‘no man is an island’ and we all need a bit of help from time to time.

A gentleman who has shown grit and resilience in tackling business and personal challenges over the years is John Gillespie. John started Gillespies Crane Services in 1969, an industry stalwart, John has given his all to his family, his business, and our industry. He served on the CICA board for over 25 successive years, joining in 1985 and held the position of CICA President for 16 years including 10 consecutive years from 2004 to 2014. John was awarded Con Popov Memorial Award in 2002 for outstanding industry service.  John will be stepping down from the CICA Board at the end of this term, and we are indebted to John for his expertise, wisdom, and service.  John is one of our industry’s statesmen and he will be missed on the CICA Board, but I am sure he will only be a phone call away and I look forward to giving him a proper farewell when we can all get together again.

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In July, the National Reference Group (NRG) met via ZOOM.  This meeting was well attended and highly informative. Charles Power, partner at the law firm Holding Redlich and workplace relations specialist, presented on recent legal rulings for Australian employers that are emerging from regular casual employment arrangements. Casuals are generally excluded from accessing the entitlements to paid annual leave, personal/carer’s leave and compassionate leave provided by the National Employment Standards in the Fair Work Act 2009 (Cth).  However, two significant and recent Federal Court rulings found that the entitlement exclusions may not apply to so-called “casual” employment arrangements in certain circumstances.

In the recent decision of Workpac Pty Ltd v Rossato [2020] FCAFC 84, the Federal Court of Australia confirmed that annual leave, compassionate leave and personal leave is payable to employees who have been incorrectly regarded by employers as long-term casuals.

In determining whether Mr Rossato was a casual employee or not, the Court largely relied upon the authorities set out in the WorkPac Pty Ltd v Skene [2018] FCAFC 131 case and emphasised that informality, uncertainty and irregularity of employment, characterise it as ‘casual’.

Louise Rumble, Megan Cant & Clare Giugni from Holding Redlich have written an article “Court confirms long term casual employment is not all it seems” in which they pose the questions;

  • does the worker perform work on a predictable or repeated roster? If the answer is yes, this is indicative of permanent employment
  • what does the worker’s employment contract say? Does it include that the employee can reject the offer of a shift and that there is no promise of a future shift? If the answer is yes, this is indicative of casual employment
  • how predictable are the worker’s hours? Predictability of hours is indicative of permanent employment
  • has the employer, in discussions or in written materials, provided an indication that the employee would be offered continuing work for an indefinite basis? If the answer is yes, this is indicative of permanent employment
  • how long has the employee performed work for the employer? The risk of deemed permanent employment increases once the employee reaches 12 months’ service.

Charles Power recommended:

  • rostering “casuals” to preclude the “firm advance commitment” referred to in the Workpac cases
  • enabling casuals to convert to permanent employment, using the model casual conversion clause in modern awards as a guide
  • making contingency for unpaid leave claims from casuals. In this respect, employers should make it expressly clear (in new contracts, pay slips or by other means) that the casual loading is paid to compensate for the absence of NES paid leave entitlements. This will improve an employer’s capacity to offset the loading against claimed leave payments relying on Fair Work Regulation 2.03A.

While there is talk of the federal government making further legislative changes, I would strongly recommend employers auditing their current employment arrangements to better understand and manage risk.

CICA Members can access the CICAASSIST Hotline 1800 HR LAWYER (1800 475 299 31) or alternatively CICA members can email: cica-assist@holdingredlich.com for initial advice and discounted lawyer rates to help navigate this and other workplace matters.  CICA are also committed to keeping us all informed of changes to workplace regulations, so please keep an eye on the safety bulletins and on the state pages of the CICA website for up to date information.

I wish you and your loved ones the best of health and I am confident the “2020 Showcase” will benefit our businesses and industry.

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