Casual employees; what is regular and systematic

Here is an excellent little passage from a recent Fair Work Commission unfair dismissal case which states the case law on the issue of what constitutes “regular and systematic” employment.

“In Bronze Hospitality Pty Ltd v Hansson 1 the Full Bench of the Commission said:

[24] In Yaraka Holdings Pty Ltd v Giljevic, 2 the Court noted that it is the engagement of a casual employee that must be regular and systematic, not the hours worked pursuant to such engagement. It also held that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable. We respectfully adopt these observations. However, it is important to note that the Court did not say or suggest that the hours of work are analytically unimportant. Clearly, the days on which a person works and the hours worked on those days are relevant to the consideration of whether casual employment is regular and systematic, and whether the person has a reasonable expectation of ongoing employment. [footnotes omitted]

The full import of the views of the Court in Yaraka Holdings Pty Ltd v Giljevic  (Yaraka Holdings) is best understood when the text of that decision is considered.

In Yaraka Holdings the Court said:

The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”… 3

A review of Mr Warren’s pattern of engagement indicates that it has been regular and it belies anyone observing his days and hours of work to suggest his engagement has not been regular.

In Yaraka Holdings the Court also said:

…The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged… 4”

– Warren v Moreland Bus Lines Pty Ltd – [2020] FWC 3206 – 19 June 2020 – Bissett C