In the Midst of a Pandemic, Another Concern: Potential Employment Litigation

For many contingent workforce managers, the past few months have been chaotic as they dealt with lockdowns, restructures, furloughs, temp assignment cancellations, and other business continuity issues, often while working from home.

While Australians have been focused on COVID-19, things have been happening in the area of employment and workplace law that may affect how you manage your non-employee workforce. Recently, class action lawsuits involving casual mine workers and other labor categories have alleged that these workers were not in fact casual employees and were therefore entitled to paid annual leave and other statutory entitlements. These developments have left employers questioning contingent staffing engagements and wondering how they can mitigate their risk if casual employees assert they are permanent employees and entitled to fight for compensation. In a 2019 class action lawsuit filed by Adero Law against Skilled Workers Solutions (NSW) Pty and related entities, Adero claims, “It is not normal for a casual worker to be paid substantially less than a permanent employee. It is not normal for one worker to earn up to $75,000.00 more per year than another worker doing the same job, on the same roster – just wearing a different shirt.” While your engagement of non-employee workers may be very different from those described above, there may be contingent workers performing assignments for your company involving one or more of the elements that might bring into question the “casualness” of the assignment. If those workers are down-sized as a result of COVID-19, how can you mitigate the risk of litigation? Employers must make assessments about each employee on an individual basis and consider the nature of the commitment being made to casual employees. In addition to ensuring that these commitments comply with all the requirements of casual labor, employers should document the nature of the commitment to its contingent workers. One of the best ways to document that commitment—automatically—is to record it in your vendor management system (VMS). Companies that use their VMS as the source of truth for all contingent workers have an audit-ready record of the terms of their contingent staffing assignments. These are particularly difficult times, and the last thing you need is the risk of litigation from former contingent workers. To find out what you can do to reduce your risk, contact your Beeline representative. This blog was written by Bronwen Fitzroy-Ezzy, Senior Vice President – Sales & Expansion APAC