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We have started this blog to focus on the impact of COVID-19 on the more marginalised and vulnerable people and communities with whom much of our research is concerned.

If you would like to share your insights on how COVID-19 is affecting the people and communities with whom your research is concerned, please get in contact with us.

Millions of casuals denied entitlements by High Court decision

Zana Bytheway

August 11, 2021

This COVID Blog contribution is by Zana Bytheway, Executive Director of JobWatch, an employment rights legal centre, and is reposted with permission of the author.

 JobWatch is very concerned by the High Court decision of Workpac v Rossato & Ors [2021] HCA 23 released on 4 August 2021 and its implications for the 2.5 million people in Australia who work casually.

Having already been significantly impacted by the economic downturn of the COVID-19 pandemic and related lockdowns, long-term casual workers are now subject to this High Court decision which makes it significantly harder for them to argue that their employment has been misclassified as a casual engagement when in fact it should have been considered a permanent role.

Casual work should be characterised by its flexibility – however we know that for many casual workers, they are subject to pre-determined shifts and rosters with no genuine opportunity to turn down shifts without facing significant repercussions for this decision. As such, they should really be considered permanent workers, and receive the same entitlements as permanent workers.

In very real terms, what this means is that someone who has been working casually in the same role for the past ten years, doing the same shifts every week and being scheduled onto the roster months in advance, would have significant difficulty in succeeding in a claim for underpayments based on role misclassification in either of the federal courts or an eligible state court. From now on, millions of casuals will effectively lose their opportunity to make a claim for underpayments based on being misclassified as a casual worker. This could mean the loss of millions of dollars every year, straight out of the pockets of vulnerable casual workers.

This decision has significant implications for those working for labour hire companies, like Robert Rossato in this case who worked six consecutive contracts for almost four years, doing exactly the same job on an established shift schedule for the same company, though at different sites.

It also has implications for the tertiary and education sector, where casualisation of academic and support staff is increasing. John* has been a full-time casual lecturer for the last four years, teaching the same subjects with his contract renewed every three to four months with no access to paid leave and other entitlements.  

And it has implications for hospitality and retail workers, many of whom are long-term casuals. Amira* was one of these people, who lost her regular 20 hours a week when the restaurant she was working at closed down permanently during the COVID pandemic. She was left to line up at Centrelink for the JobSeeker payment as she didn’t have leave entitlements and redundancy payouts to rely on.

John and Amira are not fictional case studies. They are real, and representative of the 2,301 casual workers who have called JobWatch since 2016 seeking legal information about how to pursue underpayments from employers.

Thousands of misclassified casual workers are going to be left worse off by this High Court decision, which is likely to also have far reaching effects on the wider relationship between employers and employees. This decision appears to disregard the imbalance of bargaining power between employers and employees and the reality of the employment relationship, providing employers with the means to limit an employee’s ability to exercise their workplace rights as they fear losing their job without reasonable means of recourse.

This blog is from an edited statement first published by Zana Bytheway, the Executive Director of JobWatch on 5 August 2021. Many thanks to Zana for permission to repost this statement.



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Working from home: Opportunities but also risks for supporting gender equality

Sally Moyle & Helen Innes

August 4, 2021

This COVID Blog is by Sally Moyle and Helen Innes, both with the National Foundation for Australian Women Gender Lens on the Budget team and reposted with permission of the authors.

Working from home is here to stay

Australia is facing the uncomfortable reality that the COVID pandemic will be with us for some time to come, with nearly half of all Australians currently enduring another lockdown, and many more working from home as a precaution, in the face of a resurgent and more contagious COVID Delta variant. While we continue to wait for vaccines to deliver greater protection, it is clear that we will need to work with and around the risk of COVID lockdowns for many more months.

During the peak of the pandemic, in mid 2020, many women experienced job loss and reduced working hours. Since then, women’s employment has recovered well, but this places new pressures on women as they renegotiate paid and unpaid work responsibilities when taking up new employment or increasing their hours of paid work. Whether or not to work from home, for those jobs where it is an option, is a critical element of these negotiations.

Women continue to shoulder the burden of most unpaid domestic and caring work, and often tailor their paid work choices to best fit in with their other responsibilities. This can create work/care conflicts that must be resolved – often resulting in women working part-time or leaving the paid workforce, with downstream implications for their economic security.

Working from home practices introduced during the pandemic have the potential to be game-changing for many women, and present significant opportunities to create a more flexible, equitable working life. Working from home where it is possible means access to benefits such as less travelling time, easier access to school and child-care pick-ups and drop-offs, and the ability to take time out during the day for other domestic tasks during the day instead of evenings and weekends.

Research suggests that both organisations and employees expect, and would prefer, this significant shift to continue through a permanent hybrid model of working from home part-time and working in the office part-time. For example, multi-national research by the McKinsey Global Institute suggests that “…more than 20 percent of the workforce could work remotely three to five days a week as effectively as they could if working from an office”. The Australian Government’s recent Intergenerational Report 2021 notes

“[h]igher adoption and acceptance of remote working practices may improve participation as they allow greater flexibility and are more accommodating of individual life and family commitments. … These changes have great potential to improve not just participation, but also Australia’s productivity and economic growth” (p. 41).

Opportunities and risks

However, without careful thought and planning, these practices may well entrench gender inequalities and traditional gender norms that see more women time-stressed and burdened by paid work and family responsibilities. Research demonstrates that while many workers have found remote work delivers productivity benefits, it also increases pressure, particularly on those with caring responsibilities, to manage the intersections between their working time and private lives. Women report the most difficulty in managing their paid work and caring responsibilities, including while working from home.

Of course, in many female-dominated occupations, particularly in the care sector, working from home is not possible, for example, nursing and other health care work. Opportunities to work from home are only available to some workers, and are concentrated amongst more highly skilled, knowledge-focussed workers. It is important that any large-scale shift to remote or hybrid working models is managed strategically to avoid exacerbating inequalities within the workforce, many of which will have gendered effects.

Yet even in the face of the continued COVID-induced disruption, there is a limited window of opportunity to learn from innovative working arrangements employed during the pandemic. It is important that organisations manage future working arrangements to ensure gender inequalities are not exacerbated, but that ongoing arrangements help workers better balance their paid work and caring responsibilities in a gender equitable manner, and that any gender gaps in preferences do not mean women fall further behind in their career aspirations. Government must provide leadership and incentives and consider regulation where necessary.

What the government should be doing

Without leadership and incentives from government to take advantage of these opportunities, there is the risk that the weight of business-as-usual reasserts itself, or that working from home is actively discouraged. In the weeks following Prime Minister Scott Morrison’s encouragement of public servants to ‘get back to working in the office’ and chastising international companies which allow more flexible working arrangements which Mr Morrison called ‘not appropriate to Australia’, the number of government workers working exclusively from home dropped by around 5 percentage points compared to a few months earlier (Australian Public Service Commission data provided to the Canberra Times). 

This leadership should include support and incentives for men to participate in unpaid caring and domestic work more equally. The imbalance in this unpaid work burden between women and men is one of the key barriers to gender equality in Australia and internationally, and it is time the Australian Government seriously focused on this challenge.

Should a significant structural shift towards a hybrid working model emerge post-COVID, this will have significant effects on urban development, as regional and suburban centres flourish at the potential expense of central business districts. The female-dominated retail sector and more male-dominated public transport sector will likely be affected. These can be managed with careful planning and modelling.

Done properly, these COVID-induced changes have the potential to reshape our future. We need a Government that will take these challenges seriously. NFAW was disappointed that in the last two Budgets, designed to respond to COVID, the Government failed to take on these challenges. Despite the increased focus on women’s economic security in the 2021-22 Budget compared with 2020-21, there is still no underlying, evidence-based strategy designed to help women and men better balance and share their paid work and unpaid domestic roles.

Where the government is falling short

The recent Intergenerational Report 2021 provided a reasonable assessment of the challenges. It continues to employ the ‘3Ps’ approach to economic growth – Population, Participation and Productivity.  All of these are highly gendered, and there is interplay particularly between Population and Participation. The report assumes that women’s fertility rates will continue to remain well below replacement, as women delay childbirth and have fewer children. The actual and forecast dip in immigration will likely also have a measurable effect on fertility, as many first-generation immigrants tend to have higher rates of fertility than the general population. Th Intergenerational Report assumes women’s workforce participation rates will continue to increase over the coming decades. It is interesting to note that there is no assumed reduction of men’s workforce participation to balance women’s increased greater participation, so clearly assuming women will continue to suffer time stress between their paid work and family obligations. 

The Intergenerational Report is not intended to provide policy directions, but of course the assumptions built into it tell us a great deal about the Government’s thinking. It appears, so far, the Government is not taking seriously the gendered opportunities and challenges that face us.

As we approach the election, it would be wise for the Government to take this seriously.

Otherwise, in the face of current paid work and family arrangements and gendered divisions of labour, half of the population will continue to face constrained choices (or more realistically, forced trade-offs) between workforce participation and childbearing, an invidious position. It also means that without a Government committed to supporting women to balance their divergent career and family aspirations, Australia will not reap the economic benefits that it otherwise would.

The pandemic should be seen as a wake-up call to Australian Governments into the future.

NFAW would like to see the Government carefully monitor changes to working arrangements following the pandemic and identify gender implications. It should work with employers, business, unions, academia and civil society to develop best practice models to support workers to manage hybrid working models in ways that support and promote gender equality.

Government needs to consider urban and social infrastructure that will be needed into the future to support workers to better manage their paid work and caring responsibilities within a more permanent hybrid working model. Childcare and elder care in particular are urgent priorities.

And importantly, NFAW would like to see the Government support civil society to develop a gender equality-focused recovery plan, similar to the Canadian Feminist Recovery Plan, that addresses more than just jobs.

In the forthcoming election, NFAW, and Australia’s women, will be watching closely for leadership in shaping a more equal future.

This blog is from a statement first published on 12 July 2021 by the Sally Moyle and Helen Innes from the National Foundation for Australian Women Gender Lens on the Budget team. Many thanks to Sally Moyle and Helen Innes for permission to repost their statement –  part of the NFAW’s Women’s Policy Action Tank initiative to analyse government policy using a gendered lens.



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