by GARRY CARNEGIE and JAMES GUTHRIE

Using the university disclosures for the Charities Commission, the Australian Association of University Professors (AAUP)  calculated the number of casuals as at 30 June 2018 as more than 80,000 employees.

During 2020 with the COVID-19 lockdown in place, casuals have been the first to lose their employment, and the individual public universities are not in the practice of disclosing the actual numbers of people who have lost casual work.

The Australian Securities and Investments Commission (ASIC), however, has recently advised companies to calculate annual leave and redundancy pay owed to current and former casuals who worked regular and predictable shifts or hours.  The pertinent ASIC advice is virtually compulsory reading, and includes raising contingent liabilities for borderline cases, in the next set of financial statements to be issued, which are due soon for companies with financial years ending 30 June 2020.

This follows a Federal Court decision in Workpac v Rossato that an employee worked regular and predictable shifts was not a casual.

As academics and tutors are often engaged casually to teach courses, the involvement in teaching courses and marking of examinations and assignments could meet the definition of a fixed or firm advance commitment of regular work and, therefore, could fall under the Rossato ruling.

Should this be the case, those casuals appointed in teaching or research roles in the public university sector with regular ongoing commitments could be entitled to holiday leave or other entitlements relating to the last six years.

Now, this would be a significant financial crunching exercise, especially at this time of income downturn in the sector but it could lead to substantial payments of many hundreds of millions for maybe up to 100,000 casuals who have been employed by public sector universities across the last six years.

The ASIC regulator has advised companies specifically “should provide for additional employee entitlements (including annual leave, personal and carer’s leave, compassionate leave, public holiday pay, and redundancy payments) for past and present ‘casual employees’ who were employed in the circumstances covered by the recent Federal Court decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84. The decision handed down did not allow for any offset for any casual loading that may have been paid. While no financial provision would be required in the accounts for ‘casual employees’ who are unaffected by the decision, a provision or contingent liability may be required for ‘casual employees’ employed in circumstances that were not clearly covered by the decision”.*

This scenario as well as the alleged underpayment of casuals at several public universities in the past are matters of concern to Australian universities. Some are suggesting that the latter scenario may amount to “wage theft”, which is defined as “the underpayment of staff through payments at lower rates than are required or avoiding superannuation and other legal requirements”.

On the other hand, the Rossato decision has only recently been handed down and the decision may be appealed. Until it is settled whether it could apply to HE is hypothetical.

But it could be addressed by employers of casuals, including public universities, where a potentially significant liability may arise for most, if not all, institutions in the sector.

This could be another material and untimely factor in the diminishing finances of the Australian university sector. The AAUP has stated that the current threat to employment and the COVID-19 related adversity in the higher education sector is the result of an inappropriate belief that universities are just another source of foreign income that can help fuel the Australian economy. Universities, however, are at the centre of knowledge creation and transmission in society today where they have an increasingly vital role to play in a world of highly pressing “wicked problems”.

These circumstances lend support for a Senate inquiry into the finances and rebuilding the Australian university system as proposed by the AAUP.

Distinguished Professor James Guthrie, FCPA, Macquarie University and Emeritus Professor Garry Carnegie, FCPA, RMIT University.