Legal challenge to zero hours contracts

Casual worker entitlements will be assessed in legal action UK law firm Leigh Day is bringing against zero hours contracts.

Part-time retail assistant Zahera Gabriel-Abraham has launched action against retailer Sports Direct Group, which has 20,000 part-time employees on the controversial contracts.

Gabriel-Abraham has alleged there was no practical difference between her employment obligations and those placed on full-time staff, regardless of the ‘casual’ label. However, she claims she was denied entitlements available to full-time staff due to the classification.

Leigh Day told HRR the retailer announced last month it would award each employee an average of 12,000 shares. But part-time staff, most its workforce, were ineligible for the bonus share scheme. “Part-time staff were also denied paid annual leave, sick pay and other bonuses available to full-time staff,” the firm alleged.

Zero hours contracts “raise a number of legal issues”, a UK House of Commons briefing note said. They exempted employers from guaranteeing a minimum number of working hours or paying employees workplace entitlements including sick pay and holiday leave.

Chartered Institute of Professional Development July 2013 research estimated 1m workers in the UK could be employed on zero hours contracts.

Zero hours contracts, according to the briefing note, were “drafted to avoid conferring employment status upon those working under them”.

In 2011, employee entitlements for agency workers were changed to provide the latter with equal rights in workplaces after 12 weeks’ employment.

The Agency Worker Regulations2010 remedied inequity of treatment on pay, holidays, working time and maternity leave for agency workers.

However the UK’s Unite union alleged zero hours contracts “may be increasing as a way to avoid these equal treatment rights”.

Unite said deregulated UK labour laws had created “multiple tiers of workers with various different rights” and government austerity cuts to enforcement agencies were “making things worse”.

UK business secretary Vince Cable in June said the government would launch an inquiry into the use of the controversial contracts.

Shadow UK health secretary Andy Burnham called on the government to “cut out the ‘growing cancer’ of the zero hours culture in health and care”. Figures Burnham obtained under freedom of information revealed the UK’s health and care sector had 375,000 people on zero hours contracts, which Burnham claimed was “disrupting clinical teams and continuity of care”.

The Australian context

Maurice Blackburn employment law principal Giri Sivaraman told HRR a “lacuna in the legislation” made it possible for similar practices to exist in Australia.

“Unfortunately [examples of zero hours contracting] do exist in Australia,” he said. “Awards are supposed to be in place to protect workers, but if you work in an industry with no award minimum requirements you have no protections,” he said.

He said the National Employment Standards (NES) were largely silent on minimum requirements for casual employees, such as minimum shift times and minimum times to call in casual staff.

But Fair Work legislation could be strengthened to create “better protections for casual workers”, Sivaraman said.

“Awards were created to protect most requirements for traditionally lower paid workers, but if you work in an area not covered by an award you may ‘fall through the cracks’ in terms of protections,” he said.

One Response

  1. phil
    phil at | | Reply

    If we cannot stop zero hours contracts, I would like to see some “level playing fields” legislation around them. Just as an employer over-subscribes casual workers so they always have a plentiful, low cost resource, the same deal should be in place for those employees.

    Why should I not be able to offer my employment to a number of agencies (that traditionally supply zero hour workforces) at the same time? This comes unstuck when an agency threatens non-availability of the worker (when the agency calls) with no further offers of employment to that person. There needs to be a “safety-net” against discrimination of workers trying to piece together a 40 hour week by taking up first offers for employment, whenever they are made. Rather than having to refuse a day’s work under threat the other agency won’t call any more if the worker rejects their offer for sporadic employment.

    Some options:

    There needs to be a weighting of number of casuals held against all possible, available positions at a workplace. This will stop the over-subscription approach that sees little regular work.

    Most casuals I know get a call each night as to whether there is work the next day or not. There needs to be earlier notice of schedules planned for that week. Employers will bemoan the lack of certainty and the potential for no work on a scheduled day. However, this is totally bourn by the worker where they sit out work at no cost or inconvenience to the employer.

    Agencies that have people listed for casual employment must meet minimum criteria for number of actual days worked against their casual employee database they have.

    There needs to be an examination of roles within companies employing casuals to see if the role is of a recurring nature, with few breaks of employment ever happening. Casual positions need to be balanced against full time positions with an acceptable proportion set by Industrial Relations bodies.

    These are just some ideas; however, it seems to me that where zero hour contracted employees are concerned the government and private industry just “look the other way.” Those in full time employment seem to think such workers are well compensated with higher rates. This is a fallacy as the worry of where your next day’s work will come from and the very poor gross annual salary, are reasons why zero hour contracts ( casual work ) are a poor substitute for a real job.

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