How to determine whether casual employment is “regular and systematic”

Here is an extract from an important Fair Work Commission appeal which sets out how the law determines whether a casual employee’s employment is regular and systematic for the purposes of the unfair dismissal jurisdiction.

“It is apparent on the face of the decision that the Deputy President’s determination as to whether Ms Chandler’s casual employment was regular and systematic was attended by a significant error of principle. In her application of s 384(2)(a) to the facts of the case, the Deputy President proceeded on the basis that it was necessary to identify a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift in order to be able to conclude that the employment was regular and systematic. We do not consider this to be the correct approach. In Yaraka Holdings Pty Ltd v Giljevic, 2 the Court of Appeal of the ACT gave consideration to the proper construction of s 11 of the Workers Compensation Act 1951 (ACT), which for relevant purposes deemed as workers for the purpose of that Act casual workers if their “engagement, under the contract or similar contracts, has been on a regular and systematic basis” taking into account a range of matters including the contractual terms, the working relationship and all associated circumstances, the period or periods of engagement, the frequency of work, the number of hours worked, the type of work, and the normal arrangements for someone engaged to perform that type of work. Crispin P and Gray J observed that the concept of employment on a regular and systematic basis was drawn from the Workplace Relations Act 1996,3 and went on to say (emphasis added):

“[65] It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.

[67] Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

[68] 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”. Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

[69] Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. 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.”

[12] Similarly, Madgwick J said (emphasis added):

“[89] … a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

[90] The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

[91] Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3rd edn, 2001).”

[13] The reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the FW Act. In WorkPac Pty Ltd v Skene, 4 the Federal Court Full Court favoured (without needing to finally adopt) the view that the construction in Yaraka Holdings should be applied to the definition of “long term casual employee” in s 12 of the FW Act (which includes a requirement that the employee has been employed “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”).5 The Commission in its own decisions has consistently applied Yaraka Holdings to s 284(2)(a), including in the Full Bench decisions in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell6 and Bronze Hospitality Pty Ltd v Janell Hansson7 as well as in numerous first instance decisions.

[14] By treating the degree of regularity in the pattern of hours worked by Ms Chandler as disclosed by Annexure A as the only or decisive consideration in the application of s 384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis), we consider that the Deputy President misconstrued the provision. This erroneous approach resulted in the Deputy President failing to take into account a number of matters which pointed to a different conclusion, including Ms Chandler’s contract of employment and the rostering system adopted by BBNT.

[15] In respect of s 384(2)(a)(ii), we note that the Deputy President considered that there was no need to state a final conclusion about the application of this provision given her conclusion in relation to s 384(2)(a)(i) but nonetheless went on to express a view about it. To the extent that it is necessary for us to consider this part of the decision, we would conclude that it is also attended by appealable error in at least one respect. The Deputy President treated as “telling” the excerpt from Ms Chandler’s email of 27 February 2019 quoted in paragraph [24] of the decision. We take that to mean that the Deputy President regarded it as a relevant and significant, if not decisive, consideration in the analysis. We consider this to be incorrect. The excerpted passage did no more than set out the basic incidents of all casual employment. That could not be relevant or significant in determining whether Ms Chandler’s casual employment was of a type to which s 384(2)(a)(ii) applied. Were the contrary the case, no casual employment could ever fall within s 384(2)(a)(ii).

[16] Because the decision was attended by appealable error in the above respects, we consider that the grant of permission to appeal would be in the public interest. The errors concern a question of the Commission’s jurisdiction and the decision departed from well-established principles concerning the construction of s 384(2)(a) of the FW Act with the result that Ms Chandler has been deprived of the opportunity to litigate her unfair dismissal remedy application. Accordingly, permission to appeal must be granted in accordance with s 604(2). We uphold the appeal and quash the decision.

Re-determination

[17] We consider that the most efficient course is for us to re-determine the question of whether Ms Chandler is a person protected from unfair dismissal based on the evidence that was before the Deputy President.

[18] We conclude, in respect of s 284(2)(a)(i), that Ms Chandler’s employment as a casual employee was on a regular and systematic basis. That it was regular in the sense of being frequent is amply demonstrated by the data in Annexure A to the decision. This shows that Ms Chandler was employed in every week the subject of the analysis until the termination of her employment, and in 30 of those weeks she was employed for 3 or 4 shifts in the week. The employment can also be characterised as systematic – that is, arranged pursuant to an identifiable system – for two fundamental reasons. The first is that, unusually, Ms Chandler’s casual employment was the subject of a single and ongoing written contract executed on 15 June 2018. This contract had the following relevant features:

(1) Ms Chandler was engaged as a “Casual Sales Assistant”, for which there was a detailed position description attached to the contract. Clause 2.1 identified the position description as containing Ms Chandler’s job responsibilities and the primary duties she was required to carry out.

(2) Clause 2.2 required that Ms Chandler perform the duties and exercise the powers and functions assigned to her from time to time.

(3) Clause 2.2(d) required Ms Chandler “at all times” to protect and promote the reputation of BBNT and conduct herself in a manner which would not injure or impair its reputation or bring its good name into disrepute.

(4) Clause 3.1 provided that “Hours of work will be offered to you depending on the operational needs of the business, your availability and your ability to perform your duties to the standard required by BBNT”. This provision however operated subject to clause 3.5, which established “blackout periods” for peak trading from 1 December to 15 January, the weeks before and after Easter, and at sale, stocktake and/or catalogue times, and provided: “Any casual employee taking leave during a blackout period will be on unauthorised leave and upon return, hours of work will not be guaranteed”.

(5) Clause 11.1, Termination, provided that employment under the contract would cease “when there is no longer an operational need for your services; or you resign from BBNT, or you have not been rostered and/or worked for BBNT for a period in excess of four (4) weeks”.

[19] The terms of the contract demonstrate that Ms Chandler was employed to work in a particular position in BBNT’s operational structure in accordance with a pre-established and ongoing framework of legal obligations. The second reason is that the evidence demonstrated that, for the most part, Ms Chandler’s employment was the subject of a monthly roster system involving her having to indicate in advance her availability to work for the month in question and then working shifts in accordance with the roster that was subsequently prepared and posted. The copies of the monthly rosters which Ms Chandler provided to the Commission clearly demonstrate that this was a system which applied to her and the other casual employees at the store at which she worked.

[20] For similar reasons, we consider in respect of s 384(2)(a)(ii) that, during her period of service with BBNT as a casual employee, Ms Chandler had a reasonable expectation of continuing employment on a regular and systematic basis. That expectation was engendered by:

(1) the ongoing contract of employment which established a legal framework for the allocation of work to Ms Chandler in a particular position, effectively required her to hold herself available to work during “blackout periods”, and continued until a prescribed termination event occurred;

(2) a monthly roster system, under which a roster was posted in advance of each month setting out the shifts that were allocated to Ms Chandler during the course of the month based on her prior indication of availability to work; and

(3) the frequency and amount of work that was allocated to Ms Chandler over the course of her employment.

[21] We therefore determine that Ms Chandler’s period of service from the commencement of her employment until its termination counted towards her period of employment, that Ms Chandler therefore completed the minimum employment period, and therefore that Ms Chandler is a person protected from unfair dismissal.”

Chandler v Bed Bath N’ Table Pty Ltd (2020) FWCFB delivered 23 January 2020 per Hatcher VP, Cambridge C and Booth C