Health and Community Services Union (Victoria) (HACSU) Submission to Portable Long Service Leave Inquiry

Contents

Introduction…………………………………………………………………………….……...2

Insecure work in the Health and Community Services Sector………...3

Labour Hire in the Health and Community Services Sector…………....8

National Disability Insurance Scheme (NDIS)……………………………….10

Insecure Workers: Low Paid, unskilled or semi-skilled jobs………….12

Exploitation of Women, and other vulnerable classes of workers...13

Conclusion………………………………………………………………………………….....17

Recommendations………………………………………………………………………...18

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The Health and Community Services Union (Victoria)’s submissions into the:

Victorian Inquiry into the Labour Hire Industry and Insecure Work Inquiry.

Introduction

The Health and Community Services Union (“HACSU”) welcome the Victorian

Government’s inquiry into the Labour Hire Industry and Insecure Work.

HACSU, which was first registered in 1911, is the Victorian Number 2 Branch of

the Health Services Union Australia and represents the professional and

industrial interests of Victoria’s Disability workforces and Nurses, Allied Health

Professionals and support staff working in Mental Health services and Alcohol

and Other Drug services.

All views articulated in this submission are those of the Branch and do not

represent the views of the broader Health Services Union beyond the Victorian

Number 2 Branch.

Our members are employed across all areas of health and community services in

the public, private and not-for-profit sectors. HACSU’s main aim is to improve

member’s working lives by negotiating improvements in wages and conditions

and protecting workers rights.

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HACSU will always campaign tirelessly for the rights, entitlements and

protections of workers engaged in the health and community services sector in

Victoria, no matter their employment status, employer, workplace or birthright.

HACSU exists in order to give our members a voice, and as such this submission

contains many personal stories from our membership who have experienced

first-hand the detrimental impact of insecure work and labour hire.

This submission will primarily be focusing on insecure work in the Health and

Community sector, specifically for those employees engaged in the disability and

mental health sectors, and the impact that insecure work has on those people

both socially and financially.

This submission makes the case for better protections for working people

trapped in insecure work and labour hire. Although this submission will focus

on insecure work, labour hire is becoming increasing prevalent in the sector, and

will also be addressed in these submissions.

Insecure work in the Health and Community Services Sector

Insecure work is defined as that which provides workers with little social and

economic security and little control over their working lives. Indicators of

insecure work are:

o Unpredictable, fluctuating pay;

o Inferior rights and entitlements, including limited or no access to paid

leave;

o Irregular and unpredictable working hours, or working hours that,

although regular, are too long or too few and/or non-social or

fragmented;

o Lack of security and/or uncertainty over the length of the job; and

o Lack of voice at work on wages, conditions and work organisation.

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The Australian Bureau of Statistics define casual employment as all employees

that do not enjoy access to paid holiday or sick leave. Casual workers tend to be

part-time and dominated by female workers. The jobs tend to be low skilled and

low paid.

Insecure work is a lived reality for our members in both the mental health and

disability sector. The number of people affected by insecure work has been

steadily rising since the 1970’s. It is therefore imperative that the

recommendations made by HACSU in this submission are considered, as they are

necessary and vital in order to ensure that people are engaged in secure

employment.

Case Study: A Members Story

I was directly employed casual in my current job. Casuals are always in fear of

losing hours as the company employs too many new people at one time and

consequently there are not enough hours for you to cover your day to day living. It

never feels secure and rosters only come out two days before you are due to start,

so you cannot plan your life, or even try and earn more money by getting a second

job, as you do not know what days you will be available.

I love my job, but have no respect for the managers and the company and I am in

fear of saying anything as I will be victimised. I have seen this happen.

We need to ensure that there are minimum hours for casual workers in this

industry. I do not understand why we do all the training and not get any work. It

is a waste of everyone’s time and money.

Jane – HACSU member

In mental health, insecure work manifests mainly as a result of workers being

employed casually through a staff bank, or via an agency, or more rarely, through

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a limited term contract. The use of casual workers can be dependent on a

person’s profession within the mental health sector, and to a certain extent

geography. Broadly speaking there is a shortage of trained mental health nurses

across the state and this is felt most acutely in rural and regional Victoria

presently. Generally, casuals are engaged in mental health services to cover

emergency leave situations.

However, this is not the case in the disability sector. The disability sector relies

more heavily on casuals and the increased casualisation of the workforce has

been occurring for a number of years. Insecure work in the disability sector is

becoming a feature of government funded services as well as in the Community

Service Organisation [CSO] and private sectors. The casual staff are engaged

either via an employment agency, such as On-Call, or are employed directly by

the service provider on a casual basis.

HACSU submit that the Victorian Government has a responsibility to ensure that

its own directly employed workforce at the Department of Health and Human

Services, are employed in secure work. HACSU submit that this responsibility

extends to ensuring that those community services who receive Government

funding ensure that their workers are engaged in secure employment.

Case Study: A Members Story

“I am employed in the Disability Sector by a NGO. I was employed as a casual.

After some time of being casual and having regular shifts, my union asked my

employer to classify me as permanent part-time. My employer agreed. However,

my employer then refused to give me guaranteed minimum hours and refused to

give me a contract. I spoke to HR but nothing happened, so I asked my union to be

involved. My employer would call me up and say I had to be at work in two hours!

I never knew when I was going to work, or how much I would earn from week to

week. They were treating me like I was a casual, and they did not have to pay me

any casual loading!

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I found out I was pregnant, and I needed security in my employment. My union

took the matter went to the Fair Work Commission. My employer said that they

did not have to give me any minimum hours as a part timer, because it was not

clearly outlined in the EBA. The Commission said that as a permanent part-time

employee I should not be treated like a casual.

When I get back to work from maternity leave I am hoping that my employer will

honour what was agreed and give me minimum hours.

I am a permanent part-time employee and deserve to know how much money I will

have as a minimum each week. I now have a new baby and a husband on minimum

wage. We are barely getting by as it is.”

Rossina, HACSU member

Case Study: A Member’s Story

I am a directly employed casual in my current job. As a casual you usually start

with an intake process. With my intake process 9 of us went through the induction

process. It was like, "meet your competition". We all knew that the 9 of us entering

the services all together would mean we would have to please the "house" to get

the job. Do not point out issues, just do what you are told, or else you would not

work. We all knew that if you couldn't do the shift offered the person next to you

would get the call. Do this more than once and you slide down the list until there

were no calls. The people left on the list might not necessarily be the best workers

but they probably were the workers with the least commitments in their personal

lives, meaning family people knew they had to put the job first. I missed my

daughter’s debutante ball because I knew if I said no thank you, they might not

ring me up first next time. I missed many of my 4 children's special occasions

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because of this and because shifts could be anywhere over the 24 hr clock, without

notice. We just never knew when work would be offered. I was always afraid to

commit to my children because as so often happened, I would make plans, then get

a phone call, "can do an active night at **street?" My children got used to this. It

did effect our relationship, but I had a mortgage to pay. I knew I had at least 8

other casuals keen to jump into my shift. My employer had no conscience in

reminding me this, making sure I felt insecure enough to always be available.

After 2 years of this I was "lucky" enough to go on a 3 month contract, every 3

months my supervisor let the contract lapse for a day or two thus putting me

through the process of going from casual to contract and vice versa at the payroll

office meaning if I didn't plan carefully and keep funds aside for the light fortnight

when I would get very little pay we would go backwards financially. This went on

for another 4 years so we got used to the process. Out of that 4 years, only 3 times

my contract didn't lapse. This was when we had an acting supervisor who had

come up the ranks from casual and had empathy for my position. I worked in a

"behavior house" where copping a smack or two was part of the job. The risk was

just part of the landscape.

My marriage failed and I was distanced from my children. I had to make a

conscious decision to provide financially for my family and sacrifice relationships

with my family. In the end I was providing for my family via the child support

system whilst my wife and children lived their lives without me.

Casual staff are a real necessity in our economy to fill any voids left when

permanent staff can't fill the bill. However casuals can be remunerated in a fashion

that might compensate for the obvious sacrifices they make to their private lives.

Casuals should be made feel valued by the system that employs them. Certain rules

enshrining their rights to work should be formulated in a manner that properly

respects their input in the system just as much as a casuals right not to work

(family commitments, mental health breaks, time off sick and recreation breaks)

has to be enshrined so as to protect the casual from fear of reprisal allowing the

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casual to feel valued enough to know their job (the hours they regularly perform)

will still be there on return from above mentioned breaks.

Anonymous, HACSU Member

HACSU also has deep concerns that the National Disability Insurance Scheme will

result in an exacerbation of the current over-use of casual employment, and use

of Labour Hire.

Labour Hire in the Health and Community Services Sector

The proportion of Australian employees engaged in casual work has grown

significantly over the past decade. At present the casualisation rate has been

steady, but this may be due to the fact that the use of labour hire and other forms

of independent contracting are on the rise.

Whilst casualisation of the workforce is a problem that has been long felt in the

Health and Community Services Sector, labour hire is become a prominent issue.

It seems that many organisations within the Health and Community services

sector use labour hire arrangements to minimise their tax obligations or their

responsibility to protect workers from injury.

Labour hire also allows a business or corporation not to pay wages in accordance

with the relevant enterprise agreement. One issue that unions often face is that

labour hire workers at a particular location may be paid at the award rate, while

their directly employed colleagues at the same location may be paid at a higher

enterprise bargaining rate. Many labour hire companies pay their workers

minimum rate, offer no benefits and no job security.

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Labour Hire employees are also offered far less protection, for example, only

employees can commence legal actions against an unfair dismissal.

The growth of unstable, non-regular work routines has implications for the living

standards of labour hire workers.

Case Study: A Member’s Story

“I was employed through a labour hire agency in my current job. Working for an

agency has left me with less available work. I have trouble paying rent on time,

fortunately my landlord was understanding and supportive. I would love to be able

to book shifts into the future to ensure my ability to pay my bills. I understand that

the nature of agency work would not allow for this.

Paul – HACSU Member

It is the submission of HACSU that improving standards in the labour hire

industry can only be achieved through effective market regulation and

compliance measures including mechanisms to limit the number of labour hire

operators, a bond and annual license, clear rules and guidelines for labour hire

companies, and sufficient monitoring to ensure that the companies are

complying with workplace laws.

HACSU would support a system of labour hire licensing that would oblige a

company supplying labour to another party to be registered and ensure that

labour hire companies which operate in Victoria are capitalised, reputable,

adhere to certain minimum standards and can be monitored. This model would

also ensure that workers employed by labour hire companies are remunerated

lawfully and fairly.

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Case Study: A Member’s Story

I was employed through a labour hire agency less than a year ago. I had to have

first aid certificate paid by myself and also told there would be an "induction" day

that I had to pay for and would cost approx $100.00 and I was not to paid for

attending as this was all prior to being "given " an "on call " casual position (not a

roster).

If an issue was needing to be noted or organizational policy and procedures that

needed amending, this would only occur if the issue was regarding a client and

incident reporting BUT not about anything that had happened to the "worker" and

that includes the huge huge area of physical violence, verbal abuse and

intimidation that DSW are exposed to in their work form poorly staffed houses and

support program mes (sic) where the staff to client assaults is not even assessed.

It is very dangerous work with the heavily growing mental health clients coming

into the grouping of intellectual and physical disability all under the DHHS

diagnosis of Autism. The flood gates are fully open now and this has crept in

progressively over the last three years.

Janis, HACSU Member

National Disability Insurance Scheme (NDIS)

Whilst the basic NDIS structure and funding has been established, there is a still

copious amount of work to be done, particularly around the future workforce.

As became clear during the Barwon Trial, the workforce became casualised and

unstable, and the staff untrained. When HACSU met our disability members in

the Barwon Region they reported the following:

o Workers now liaise with an increased range of service providers

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o Workloads have increased due to co-ordination and

administration of additional service providers

o House supervisors are being required to:

Undertake case management duties eg sourcing day

services or education and vocational placements

Comment on agency staff performance

o House staff are to train agency staff

o And untrained and inconsistent staffing is having a detrimental

impact on client outcomes, their progress and, in some instances,

their psychological wellbeing.

These are all dangerous features of a highly casualised workforce.

Our concern is that the NDIS will undermine the services’ ability to future plan.

There is no way of knowing how many participants will be “purchasing” their

services in the future, and therefore the sector cannot plan for the required

staffing needs or permanently employ people.

Case Study: A Member’s Story

The NDIS uncertainty and insecurity of permanent employment (ie. your job is to

the department and not to a particular site), means you can be moved at a drop of

a hat without any consultation. My permanency was moved to another house with

a very different roster without even informing me. I found out after the fact. This

happened in the disability support industry. I would like to see a platform for staff

to have issues addressed without fear of retribution, ie whistleblower protection.

Also, permanent roster lines that cannot be altered without staff consent, including

having the same day off every week and finally, more disciplinary action for the

staff who are truly doing the wrong thing and reward/recognition for the staff who

are working well.

Sue, HACSU Member

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Insecure Workers: Low Paid, unskilled or semi-skilled jobs

There is an argument that casual work is a “stepping stone” into better jobs and

provides unskilled workers with a transition from low pay to higher pay. The

evidence does not reflect this view. The evidence is very clear that casual work

traps workers into low pay and precarious jobs.1

Professor Mark Wooden from the Melbourne Institute of Applied Economic and

Social Research states that the reason why employers are reticent to hire people

is that they do not want to face dismissal costs, so casual workers make it easier

to hire. This reduced level of risk means employers are willing to give unskilled

and in some circumstances, uneducated candidates a position. 2

This is dangerous in most industries, but particularly in the Mental Health and

Disability sectors where workers are expected to be able to cope with the

demands of caring for some of Victoria’s most vulnerable people.

Training and skills development impact on quality outcomes for service users,

work culture, staff development and retention. Both on and off the job training

are of fundamental importance within the disability and mental health

industries. The capacity of workers to access training is contingent on a number

of factors, one of which is adequate funding both to pay for the training but also

to back fill staff.

The actual employment relationship has significant bearing in an employee’s

capacity to access training. Time limited and casual work are considered

“atypical” forms of employment which create significant barriers to employee’s

accessing employer supported training. Access to training for casuals poses the

greatest challenge. In 2008, the Industry Skills Council found almost half of

1 Casual Work Traps Workers into Low-Pay and Precarious Jobs, by Bill Mitchell.2 Casual Work: A blessing or a curse, James Adonis

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casual workers in the health and community services industries did not complete

any kind of training.3

This training gap has serious implications for the industry in the future. It

suggests that any attempts to try and re-professionalise the industry by training

the current and future workforce, will fail.

The fact that many of the casual employees are unskilled, means it is harder for

them to find alternative employment in the sector, or allow them to have a

realistic opportunity to apply for, and be successful in gaining, permanent

employment.

Case Study: A Members Story

I am a directly employed casual. It’s hard when completing a part time contract

then reverting back to casual, this means going 4 weeks without pay every time. I

cannot plan anything as I have no idea what hours or shifts I have each week

coming and going off contract to casual means a month without pay. This means

bills don't get paid, rent does not get paid and no food on the table.

I don't know any solution. But in my case I work in a vacant line and have been for

12 months and still cannot gain a part time position

Chris, HACSU Member

Exploitation of Women, and other vulnerable classes of workers

The disability sector is made up of predominately female workers (85% of the

disability workforce in Victoria were female in 2012). HACSU’s female

3 Environment Scan 2008 ‘Community Services and Health Industry Skills Council, Version 2 2008, page 30

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membership in both disability and mental health services for the month of

September 2015 was 68.4%.

The Australian Bureau of Statistics indicates that the number of casuals in the

workforce is increasing, with 19% of the workforce working casually. Women

are much more likely to be in casual employment than men, with 25.5% of all

female employees being casual compared to 19.7% of male employees. 4

It is clear that the move away from secure employment is one of the dominant

trends in the Australian workplace during the past decade and it has largely not

been to the benefit of workers.

Case Study: A Member’s Story

“I picked up a casual job at a NGO Disability company because it was the only work

I could get. I worked regularly hours, but I wanted job security. I wanted to have a

family, and I felt that I was unable to do so as a casual.

I knew that as a woman I would miss out on Superannuation payments into my

Super account, but I wanted a guarantee that I would have a job after I gave birth

to my baby girl.”

Rossina, HACSU member

The rate of transition between 2001 and 2004 from casual employment into

some form of non-casual employment was 52.9% to 56% per cent for all men,

which compared to 40.9% to 44.3% for all women.5

4 ABS Forms of Employment5 Transitions from Casual Employment in Australia Project 09/05, Melbourne Institute of Applied Economic and Social Research

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The Melbourne Institute of Applied Economic and Social Research found that

women, who were persistently employed as casuals, had a reduced probability of

finding non-casual employment in the future.

Case Study: A Member’s Story

“I am a directly employed casual. I need reasonable adjustment due to a disability

and instead of dealing with it, my employer just made excuses and kept me from

going permanent although I’ve never had any disciplinary issues.

I am not meant to start work before 10am and now there are fewer long afternoon

shifts. I turn up and get no handover and find out later on there have been violent

incidents, but it is too late. I already took a resident to the cafe. It went well for me

on the day, but why didn’t someone tell me at handover that there had been an

issue? I had asked how they were, and they just say “all good!”.

I have had to let my place to a tenant and move in with my parents after 30 years

because I could not pay the mortgage. I tried renting but it costs the same. I even

tired doing sleepover shifts, against the advice of my doctor, and my health went

downhill. I just can’t survive financially without long afternoon shifts.

14 years in this job, and now I have to move back home! This happened in the

disability industry.”

Anonymous – HACSU Member

Casual workers face unpredictability with their employment and they are denied

paid holiday entitlements and sick leave. Periods of work for casual workers can

be accompanied by long gaps or really short call-in times and many casual

workers find it hard to predict their income, to pay bills and make ends meet, let

alone plan for the future or to save and buy a house. It also makes it hard to plan

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family time. Many of our female members who are engaged casually state that

they cannot commit to attending their children’s school concerts, or caring for

them when they are ill, as they fell if they do not accept the shifts offered, the

employer will cease offering them available shifts.

Case Study: A Member’s Story

“I am a directly employed casual in current job. I have no roster. My employer

calls me if a shift is available, sometimes in the morning of the shift. If I don’t take

the shift, they will call someone else first in the future. Sometimes if I am short on

work, I would have to go to my parents for help. There is no guarantee that I’d get

work. There needs to be an increase of pay for me to survive – or lower my taxes?”

Fred – HACSU Member

Case Study: A Member’s Story:

I am a casual employee. I have worked at least 0.6 per fortnight for the past 2

years. I have had to take leave when I broke my shoulder and I reluctantly took

time off to spend time with my family. On both occasions I was hesitant because I

am replaced with other casual workers who I then have to compete with for

further work. I am fearful to say no to any shifts that are not really suitable

because of this reason. Being casual is stressful for me because I cannot plan ahead.

If I take on further financial commitments (I am presently in need of a new car), I

have the worry of whether I will receive adequate income to meet the repayments;

that is if I am even considered for a personal loan because of my casual

employment. This happened in the Mental Health industry. I want to ensure that

people who have worked regular casual hours for a lengthy amount of time are

employed as permanent workers.

Carolyn, HACSU Member

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The sector already is over reliant on casual and time limited staff. We believe the

roll out of the NDIS will only exacerbate this statistic further.

Conclusion

The casualisation and deskilling of the health and community services sector,

which is a complex and diverse workforce currently, will have significant

implications for people with a disability who require support in their day to day

lives.

HACSU is concerned that the ongoing causalisation of the workforce, as well as

the use of labour hire, will have effects that will be felt most greatly by those

people who are most marginalised within society: those people who are unable

to advocate for themselves and do not have people to advocate for them.

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Recommendations

1. That the inquiry find that the Victorian Government must recognise the

changing nature of work in the Health and Community Services Sector,

which includes the rise of insecure work, including casual employment

and the rising numbers in labour hire workers, as well as the financial and

social stresses that those workers suffer, including but not limited to;

a. non-compliance with industrial standards;

b. less access to paid leave and ability to take paid breaks from work;

c. financial and housing stress;

d. safety issues due to lack of access to training;

e. impact on quality and delivery of services because of lack of

induction and familiarity with the workplace; and

f. significant barriers to engage in bargaining either with their

employment agency employer or their host employer.    

2. That the inquiry find that the Victorian Government must recognise that

casualisation and labour hire will be an ongoing issue during and after the

roll out of the NDIS, and should, at every opportunity, support measures

that will reduce or eliminate forms of insecure work;

3. That the inquiry find that the Victorian Government has a responsibility

to ensure that its own directly employed workforce at the Department of

Health and Human Services, are employed in secure work. This

responsibility would extend to ensuring that those services who receive

Government funding ensure that their workers are engaged in secure

employment;

4. That the inquiry find that the Victorian Government must support

measures that allow employment in the Health and Community Services

Sector to be more secure with the access to the same, or similar,

entitlements as permanent employees;

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5. That the inquiry find that the Victorian Government advocate for

amendments to the Fair Work Act 2009 that reflect that casual workers

must be transferred to permanent employment once they have been

working a regular and systematic roster/hours for a period of six months

with the same employer, and that workers have a right to have regular

reviews with regard to their hours;

6. That fixed term contracts should be limited to circumstances when the

worker is replacing the position of a permanent employee on leave (e.g.

maternity leave);

7. That training and education must be made available to all workers,

despite their employment status;

8. That the inquiry find that the Victorian Government advocate for

amendments to the Fair Work Act 2009 that better capture indirect

employment arrangements like labour hire;

9. That labour hire companies pay a bond and annual licences fee to operate

a labour hire company in Victoria. The bond would fund the compliance

unit and allow for lost employee entitlements to be guaranteed by the

State in circumstances such as, but not limited to, liquidation;

10. That a compliance unit be set up that approves licences to potential

labour hire companies and ensures that each applicant meets core

requirements (a fit and proper person test) to ensure worker exploitation

is avoided and unlawful behaviour is eradicated from the industry;

11. The compliance unit would monitor the licensees and investigates alleged

breaches of Victorian and Federal laws. The holding of a license must be

subject to ongoing compliance with State and Federal workplace laws,

including the provisions of the Fair Work Act 2009 and applicable modern

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awards or enterprise bargaining agreements and the Occupational Health

and Safety Act 2004 (Vic);

12. That labour hire companies should be required to provide annual reports

to the compliance unit which details the number of workers and

remittance paid to them;

13. That the inquiry find that if a business is to engage a labour hire company,

the workers are to paid the same amount as a directly employed worker

would receive, and should be regarded under Part 2-4 of the Fair Work

Act 2009 as employees for the purposes of bargaining and, as a result,

would be covered by the enterprise agreement;

14. That the inquiry find that labour hire workers should receive mandatory

workplace rights and entitlements training. Labour hire companies

should educate new workers about the nature of their employment and

inform them of their rights, including their right to join the union. Unions

should have the right to attend any inductions.

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