This extract from an unfair dismissal case decision of the Fair Work Commission deals with the issue of calculating length of service for casual employees.
“Section 383, 384 – minimum employment period for a casual employee.
[1]
Ms Brooks (Applicant) has made an application to the Commission pursuant to section 394 of the Fair Work Act 2009 (the Act), in which she alleges that Benalla P-12 College School Council (Respondent) unfairly dismissed her from her employment.
[2]
The Respondent pressed an objection to the application, on the basis that the Applicant had not fulfilled the minimum employment period for a casual employee. Having regard to the initial materials provided, it appeared to me to be convenient to determine the objection raised as a preliminary matter.
[3]
Directions were issued to the parties (and subsequently amended), providing for material in support of and opposition to the objection to provided. Whilst the matter was programmed to be heard on 5 August 2026, the parties subsequently jointly approached my chambers with a consent position that the objection be determined on papers. In doing so, the parties referred to the recently amended section 397 of the Act and the absence of factual disputes between the parties. Section 397 of the Act provides as follows:
Matters involving contested facts
(1)
The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.
(2)
However, the FWC may make a decision in relation to the matter without either conducting a conference or holding a hearing if:
(a)
it appears to the FWC that the matter can be adequately determined in the absence of the parties to the matter; and
(b)
the parties to the matter consent to the FWC making a decision in relation to the matter without conducting a conference or holding a hearing.
[2026] FWC 3125
DECISION
[2026] FWC 3125
2
[4]
Subsection (2) of section 397 was inserted into the Act through an amendment made by Item 42 in Part 7 of Schedule 1 to the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026. Transitional provisions within that amending legislation provide as follows:
The amendments of sections 397 and 536LX made by Part 7 of Schedule 1 to the amending Act apply in relation to an application under section 394 or 536LU made on or after the commencement of that Part.
Because Part 7 of Schedule 1 to the amending legislation commenced on Royal Assent on 7 July 2026, subsection (2) of section 397 of the Act is inapplicable to the current application, which was made on 24 March 2026.
[5]
Nonetheless, I accept that the objection is capable of being determined on the papers on the basis of the undisputed facts between the parties.
Minimum employment period and casual employment
[6]
An important concept in unfair dismissal is the question of whether a person is “protected from unfair dismissal”. What is required for a person to be protected from unfair dismissal is set out on section 382 of the Act. The concept of protection from unfair dismissal is important because the Commission is precluded, by paragraph (a) of subsection 390(1) of the Act, from ordering any remedy to a person who is not “protected for unfair dismissal at the time of being dismissed”. Because an unfair dismissal application is, per the terms of section 394 of the Act, in essence an application for a remedy1, such an application by a person who was not protected from unfair dismissal at the relevant time is entirely inutile and cannot succeed.
[7]
Paragraph (a) of section 382 provides that one of the requirements that must be fulfilled in order for a person to be protected from unfair dismissal is that “the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period”. This naturally provokes an inquiry into what is meant by “a period of employment” and the “minimum employment period”.
[8]
The minimum employment period is defined at section 383 of the Act as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
[9]
The concept of a period of employment is deal with in section 384 of the Act, as follows:
384 Period of employment
1 s. 394(1)
[2026] FWC 3125
3
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
[10]
The relationship between a period of employment and the minimum employment period is not as straight forward as it appears. For one, a period of employment must involve continuous service, a term defined in section 22 of the Act. Service may be interrupted by unauthorised absences or unpaid leave. Where this occurs the continuity of service is not taken to be broken, however the duration of such absence is to be subtracted from the totality of continuous service. More complex is whether a period of employment counts toward the minimum employment for a casual employee.
[11]
As is evident from paragraph (a) of section 384(2) set out above, any period of service that is relied on as counting toward the minimum employment period must exhibit particular features. Firstly, the employment must have been as a regular casual employee and secondly, the employee must have had a reasonable expectation of continuing employment on a regular and systematic basis “during” that period of employment (that is throughout that period of employment2). A person is a regular casual employee at times when they are a casual employee employed on a regular and systematic basis, and it is required that the person hold that “regular and systematic” status throughout any period of employment relied on.3
[12]
There is potential for a period of service that counts toward a period of employment to be different than an employee’s entire period of continuous service. The contemporary approach is one that permits the identification of a qualifying period of employment even if that period is not the period of employment in the final 12 or 6 months (as the case may be) prior to the dismissal or the giving of notice of the dismissal.4 Indeed, it is permissible to aggregate
2 Bronze Hospitality v. Hansson [2019] FWCFB 1099 at [28]-[29].
3 Bronze Hospitality v. Hansson (No 2) [2019] FCA 1680 at [27]-[28].
4 Attard v. Port Phillip City Council [2022] FWC 2057 at [53]-[63].
[2026] FWC 3125
4
disparate qualifying periods of casual employment across a period of service in order to reach the required benchmark of 6 or 12 months (as the case may be):
“It is clear from the language of s 384(2) that an employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s 384(2)(a)(i) and (ii) are met.”5 (emphasis added)
[13]
It emerges from the above that the characterisation, during a period of causal employment, of “engagement on a regular and systematic basis” is of vital importance. The following can be said in summary of what is meant by that expression, having regard to the authorities that have examined the term:
(a)
What is required to be regular and systematic is the engagement, rather than the hours worked pursuant to such engagement6;
(b)
“regular” should be construed liberally, and to imply some form or pattern rather than as synonym for “frequent” or often7;
(c)
there is no independent requirement for frequency8, but frequency may provide evidence of regularity9;
(d)
a liberal construction of “regular” in this manner does require engagement to be uniform or constant10;
(e)
In order for engagement to be characterised as systematic, the basis of engagement must exhibit something that can fairly be called a system, method or plan11;
(f)
A roster, or process for indicating availability which enables and results in work being allocated in advance may evidence systematic engagement12;
(g)
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 required13;
(h)
If the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic14; and
(i)
Where there is no clear pattern or roster, an engagement may be ‘regular and systematic’ if the employer offered suitable work when available and the employee accepted this work sufficiently often that it could no longer be regarded as simply occasional or irregular15.
5 Shortland v The Smiths Snackfoods Co [2010] FWAFB 5709 at [12].
6 Yaraka Holdings v. Giljevic [2006] ACTCA 6 at [65].
7 Yaraka Holdings v. Giljevic [2006] ACTCA 6 at [68].
8 Ibid. at [65]
9 Chandler v. Bed, Bath N’ Table [2020] FWCFB 306 at [18].
10 Yaraka Holdings v. Giljevic [2006] ACTCA 6 at [68]
11 Ibid. at [91] (per Madgwick J). See also
12 Chandler v. Bed, Bath N’ Table [2020] FWCFB 306 at [19].
13 Yaraka Holdings v. Giljevic [2006] ACTCA 6 at [69]
14 Ponce v. DJT Staff Management Services [2010] FWA 2078 at [75].
15 Ponce v. DJT Staff Management Services [2010] FWA 2078 at [76].
[2026] FWC 3125
5
[14]
As to the requirement that an employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis, the analysis called for is whether the employee had an expectation of continuing employment on a regular and systematic basis, and an assessment of whether such expectation was a reasonable one.16 Certainly it may take some time for an expectation, once formed, to be considered reasonable.17 For example, a causal worker told on their first day of employment to return in two days time may not at that point be considered to have any reasonable expectation of continuing employment on a regular and systematic basis.”
Brooks v Benalla P-12 College [2026] FWC 3125 delivered 18 August 2026