‘Zero-hour contracts’ are supposedly a thing of the past – but something very similar has taken their place: casual contracts. Before they were done away with in 2016, ‘zero-hour contracts’ required people to be available for work without any guaranteed hours.
Today there is no legal definition of casual employment in Aotearoa, yet there are nearly 200,000 people working on a casual, seasonal or fixed-term basis according to Statistics New Zealand.
Students working in Auckland’s cafes, restaurants and bars say being on a casual contract isn’t exactly how it sounds. It often means working regular shifts, but missing out on annual leave, sick pay as well as job security – all of which are guaranteed under a part-time contract.
Advocates are calling for a clear distinction between types of employment in New Zealand and a fair balance between workers and their employers.
What is a ‘casual contract’?
Although it isn’t defined in legislation, Employment New Zealand describes casual employment as “A situation where the employee has no guaranteed hours of work, no regular pattern of work, and no ongoing expectation of employment”.
This means the employer doesn’t have to offer work to the employee, and the employee doesn’t have to accept work if it’s offered. So, a casual employee works when it suits them and their employer.
Auckland employment lawyer Patrick McGrath says “If you think about casual employment in its true form, there’s probably not a whole lot of situations out there where it’s appropriate.”
Union organiser Justine Sachs says it’s rare to have a truly casual employment relationship, as most people work regular patterns.
“We’ve forgotten that although we’ve gotten rid of zero-hour contracts, this issue still exists and people are still getting screwed around.”
What does it mean to be a casual worker?
Auckland student Anais Middleton says she worked without a contract for the best part of two years at Sandringham café, Petite Locale. She worked part time during uni and full time over summer.
Middleton says she asked several times for a part time contract, but was instead given two ‘three-month trial period’ contracts. After those ended, it was all under the table. This meant she didn’t get payslips, was constantly underpaid and missed out on the wage subsidy.
When the country went into lockdown in April 2020, the café didn’t pay her for two weeks of work. She had to continuously chase it up and was only paid once she said she’d take legal action.
Middleton says her co-workers, who were mainly young girls all had the same problem. In the end, everyone gave up because it was too hard. She says her boss justified having her on a casual contract because the business was not doing well. “So I guess the first thing to go was our wages, which really sucks.” She says.
Why they're useful for businesses
Green Party spokesperson for workplace relations and safety, Jan Logie says “Employers see casual contracts as a way of increasing flexibility and saving money in tough times.”
Auckland regional manager for the Labour Inspectorate*, David Milne agrees “The biggest cost for any business is labour and they reduce it the best they can, especially when times are tough.”
“The first thing to be clipped back is wages and they will use casual contracts to let people go”.
*The Labour Inspectorate is a branch of the Ministry of Businesses Innovation and Employment that makes sure workplaces are meeting employment standards. They have the power to restrict businesses from employing migrant workers and fine them through the Employment Relations Authority or Employment Court.
Milne says casual contracts make people more vulnerable, as there’s little workers can do if they feel their rights aren’t being met.
“If someone complains about being exploited, their boss will say: ‘there’s a queue of people behind you who are prepared to work beneath the minimum wage’.”
Anais Middleton describes the lack of bargaining power workers have when starting a new job.
“I felt like I couldn’t be too intense because they either won’t pay me, or they’ll replace me with someone else - I needed the job and I needed money.”
Milne says being on a casual contract can make work “precarious, uncertain and at the beck and call of your employer.”
Not so casual
Auckland student, Sarah Letford says she worked at Citizen Park, Kingsland for about five months. “They put me on a casual contract even though it was understood by both of us that I would be part time.” She says they implied they couldn’t give her a part time contract because of Covid-19.
Letford explains how she was treated as a part-timer, but with none of the benefits - as though they were trying to blend the two.
“Being a casual, they were supposed to be offer me shifts which I could decline or accept - but they just rostered me on.”
One of the biggest problems was not getting sick leave. “It was annoying being sick and missing money, especially when I knew that I had gotten sick from other people at work, or just being so run down from working until 3am.” She says.
She recently decided to leave, but she’ll come in for the odd shift if they needed extra help “It’s funny because I obviously didn’t have to change contracts.”
Leaving a casual job
Anais Middleton says she decided to leave the café after finding a new job, but the transition wasn’t as straightforward as she had hoped. “I gave my two weeks’ notice, but he just didn’t reply to my resignation.” This meant several weeks with no income.
“He just didn’t give me any shifts. I was unemployed for ages.”
Because she didn’t get payslips, Middleton says she had no idea how much annual leave or holiday/sick pay she was entitled to. “It was literally just bank transfer - I’d always ask for a payslip, but he never sent them so you couldn’t even see how he’d broken it down” She says.
She says the time and effort of chasing up her outstanding pay is not worth it.
“It’s too much of a hassle - It’d would be way more stressful for me to chase it up than what the money’s worth.”
Legal action
Auckland employment lawyer Patrick McGrath says it’s not very often these types of cases make it to court, especially if the period of work is below six months (which they often are in hospitality).
Green Party MP Jan Logie says “The employment court is backed up - it can take 1-2 years, which doesn’t solve your problem of putting food on the table or paying rent.
However, McGrath describes one well-known case – Yukich vs. Amalgamated Workers – which resulted in a successful personal grievance claim.
“The court said that despite the contract saying it was casual, it wasn’t actually casual.”
McGrath explains that it doesn’t really matter what label you give the job, because there’s no definition of casual in the Employment Relations Act.
“It comes down to a case-by-case analysis - the contract is one thing, but there’s the reality of how the relationship has gone.”
Employment in Aotearoa over the years
Unions once played a big role in New Zealand workplaces, boasting one of the highest membership rates in the world. Today, they are only strong areas such as nursing, teaching and firefighting and police (who make up about 15% of workers).
This shift happened in the 1990s, when Patrick McGrath started practicing law. “That was when they really gutted the unions” he says.
This was mainly due to the Employment Contracts Act 1991 - part of the National government’s efforts to deregulate the labour market. It brought an end to compulsory unionism, turning all collective contracts into individual contracts. There was no trace of the word ‘union’ in the law.
McGrath says “It was a time of real transition - it took a few years for everyone to get their heads around that.”
Union organiser Justine Sachs says we need to rethink how we unionise and reach vulnerable workers “Gone is the time when people had one job - the classic 1960s style of working in a factory for forty years, then you retire.”
“It’s easy to join a union when you’ve been working in a factory for ten years. It’s harder to join a union and negotiate from a position of power when you’ve had five jobs in two years.”
Moving forward
Green Party MP Jan Logie says she’s hopeful about Fair Pay Agreements, as they’ll provide minimum wages and conditions across the hospitality industry.
“Businesses will start to value great atmosphere and service as a product – as opposed to ‘how much can I get away with shafting my staff?’, which is a really normal attitude at the moment.”
Patrick McGrath says our current legislation, The Employment Relations Act 2000 has restored a bit of balance but there’s still very little collective bargaining. He says this works for employees with plenty of bargaining power, but there are many who get left behind.
The ERA 2000 has been in place for two decades, the same amount of time since our employment law was last revised.
The Fair Pay Agreements Bill is expected to be introduced in early this year.