Regular and systematic employment in the fair work system

This extract from an unfair dismissal case determined by a senior member of the Fair Work Commission sets what is meant when the Fair Work Act refers to a length of “regular and systematic employment”.

 

“4      Had the Applicant satisfied the minimum employment period?

 

[45]    Section 390(1)(a) of the Act provides that the Commission must, relevantly, be satisfied that a person was ‘protected from unfair dismissal’ at the time of being dismissed before it may make an order for an unfair dismissal remedy in the person’s favour.  Section 382(a) provides that the first of the two requirements that must be satisfied 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 the relevant employer of at least the ‘minimum employment period’.  Section 383(a) provides, in respect of an employer which is not a small business employer, that the ‘minimum employment period’ is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal (the period is one year for a small business employer).

 

[46]    In the case before me, the Respondent’s evidence as to the number of employees it had at the time of the Applicant’s dismissal, was insufficient to make a finding that the Respondent had less than 15 employees.  It follows that I have proceeded on the basis that the minimum period of employment was six months.

 

[47]    Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period.  The relevant part reads:

 

(1)      [Meaning of period of employment]

 

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.

 

(emphasis added)

 

[48]    The starting point is that a period of employment is also referred to as a period of continuous service.

 

[49]    Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:

 

General meaning

 

(1)      A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

 

(2)      [Exceptions to meaning of service] The following periods do not count as service:

(a)      any period of unauthorised absence;

(b)     any period of unpaid leave or unpaid authorised absence, other than:

(i)      a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii)     a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or (iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

 

(3)      [Excluded period does not break continuous service]

An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service…

 

[50]    A period of continuous service can be made up of a series of periods of service.44  An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.45

 

[51]    In the case of a casual employee, a period of service will not count towards the casual employee’s period of employment unless:

 

  1. a) the employment as a casual employee was as a regular casual employee; and
  2. b) 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.46

 

[52]    In Chandler v Bed Bath N’ Table Pty Ltd (Chandler),47 the Full Bench identified what it considered to be the correct approach to the application of s 384(2)(a) of the Act.  That approach was clearly drawn from the reasoning in Yaraka Holdings Pty Ltd v Giljevic (Yaraka Holdings)48 (see paragraph [11] of Chandler):

 

In Yaraka Holdings Pty Ltd v Giljevic, 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 (Cth), and went on to say:

 

[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 s 11 (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.

 

[53]    In Chandler, the Full Bench confirmed:

 

[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, 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”). 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 Sawtell and Bronze Hospitality Pty Ltd v Janell Hansson as well as in numerous first instance decisions.

 

(citations omitted)

 

[54]    To recap, in Yaraka, 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.49  It also held that the term ‘regularly’ should be construed liberally, and that ‘systematic’ does not mean predictable.50  However, as was observed in the Full Bench decision in Bronze Hospitality Pty Ltd v Hansson,51 the Court in Yaraka did not say or suggest that the hours of work are analytically unimportant, and 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.52

 

[55]    In the Federal Court judgment of Bronze Hospitality Pty Ltd v Hansson (No 2) (Bronze Hospitality No.2), Jackson J expressed:

 

Section 384(2)(a)(i) calls for an evaluation of whether the employment as a casual employee was on a regular and systematic basis. So it is the relationship of employment that must be characterised, one way or the other. It is true that the basis of the relationship can change over time, so it is necessary to determine when it became employment on a regular and systematic basis. But if, looking back after the end of the relationship (as is of course inevitable in an unfair dismissal case) the evidence as a whole supports a characterisation of its basis as regular and systematic from the beginning, it does not matter that looking forward from the beginning, one would not have yet seen all that evidence. The basis of the employment was, in fact, regular and systematic from the start, even if sufficient evidence of that fact did not accumulate until later.53

 

[56]    Returning to the notion of ‘expectation’ and the proper construction of s 384(2)(a) of the Act, Jackson J stated:

 

…If the employee’s expectation was based, not on anything the employer said, but solely on her own observation of the regularity of her work shifts, it would be wrong to look back and say that, as it turned out, there was a reasonable expectation from the very beginning. An expectation could not be reasonable until the time at which the pattern necessary to make it so has emerged.

 

But I do not accept that as a matter of construction of s 384(2)(a)(ii), a week and a half of regular employment cannot establish that pattern. The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word ‘reasonable’ is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable.  Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances, and there is no minimum period in the legislation that makes a week and half insufficient in every case.54

 

(emphasis added)

 

[57]    In Bronze Hospitality No.2, the Federal Court proposed that what is agreed to at the commencement of employment is also relevant to the question of whether an employee has objectively reasonable grounds for an expectation of continuing employment on a regular and systematic basis.55

 

[58]    To determine whether the legal relationship is one of casual employment, the High Court has ruled that the determination of the character of the legal relationship between the parties is undertaken only by reference to the legal rights and obligations which constitute that relationship.56

 

[59]    In this case, it initially appeared that neither party cavilled with the proposition that the

Applicant was an employee employed on a casual basis.  The Applicant’s application identified he was a casual employee, as did his response at paragraph [2(e)] of his Outline of Argument.  More importantly, the express terms of the Applicant’s employment contract stated as much.  However, at hearing the Applicant’s representative advanced the proposition that the Applicant was engaged on a permanent part-time basis.  Having regard to the terms of the casual contract, I am satisfied that the Applicant was a casual employee within the meaning of s 15A of the Act, from September 2022.

 

[60]    The Applicant worked for the Respondent from September 2022 up until his last shift of work on 9 February 2024 –noting, however, that his dismissal took effect on 14 February 2024.  It is accepted that this period is not reduced on account of any excluded period as provided for in s 22 of the Act.

 

[61]    The Respondent contends that the Applicant was not a regular casual employee on the basis that the Applicant’s hours and days of work did not give rise to a pattern of work that is regular and systematic in nature given the sporadic and varied nature of his shifts and duties.

 

[62]    Having examined the Timesheet, I make the following observations.  As noted, from 3 July 2024, the Applicant had worked the pattern of eight Mondays, Tuesdays, and Wednesdays in a row.  This is not to say that on other days during this period the Applicant did not work.  For example, in that same period the Applicant worked 11 Tuesdays and Wednesdays in a row (exclusive of the Monday, Tuesday and Wednesday pattern), and 20 Saturday and Sunday shifts combined. 57

 

[63]    The Applicant had worked each week in July 2024, averaging two to four shifts a week of varying periods ranging from three hours to nine hours.58  In August 2023, the Applicant worked predominately two shifts a week on a Tuesday and Wednesday of three hours in duration and two Saturday shifts of five hours and eight hours respectively.59  In September 2023, the Applicant worked each week – one week five shifts, one week six shifts, one week two shifts, and one week three shifts.60  Days of work included weekdays and weekends, with hours ranging from three hours to seven and a half for each shift.  In October 2023, the Applicant worked each week, four shifts for the first week, two shifts in the second, three in the third, and five in the fourth.61  In November 2023, the Applicant again work two to five shifts each week ranging from shifts in three to nine hours in duration.62  In December 2023, whilst the Applicant work on Sunday, 3 December 2023, he did not work the following week, and thereafter he worked two days a week for the following three weeks.63  Similarly, whilst the Applicant worked on 2 and 3 January 2024, his next shift was on Monday, 15 January 2024 and thereafter he worked two shifts that week, three shifts the following week, two the following and then of course we arrive at February 2023, with the Applicant working Monday to Wednesday, 5 to 7 February 2024.64

 

[64]    The evidence points to the Applicant’s employment as a casual employee being ‘regular’ in that he worked most weeks in the six month period (with the exception of two weeks) (s 384(2)(a)(i) of the Act).

 

[65]    The Timesheet covers a 71-week period during which the days of work were not fixed and the hours worked on each day were also variable.  I have focused on the last six months of that Timesheet.  Predominately that Applicant worked each week on a Monday, Tuesday and/or a Wednesday, at times also working a Saturday and/or a Sunday.  There would be times when he worked a Thursday or a Friday, but such shifts on such days were infrequent.  For the most part week day shifts were three hours in duration with longer shifts being worked on the weekend.  However, there were at times longer shifts worked on a week day, particularly on a Monday.

 

[66]    In order for a period of service as a casual employee to count towards the employee’s period of employment there must be a period of regular and systematic employment that coincides with a reasonable expectation of ongoing employment.65  On the material before the

Commission, these prerequisites are present.  The Applicant’s employment as a casual employee was regular.  I consider it was also on a regular and systematic basis having regard to the evidence before the Commission detailing the hours that he worked, the days on which he worked, the rostering methodology, the business requirements, and the other circumstances such as the Applicant’s availability being limited to, at times, weekdays after school, weekends and school holidays – and the rostering of the Applicant accommodating that availability.  Whilst it is true that the Applicant worked in different areas of the Respondent business, at times in the café, the Junior Arena or, for example, watching over the ‘Ninja Warrior Level 1 course’, this does not negate the finding made.

 

[67]    The Applicant’s employment contract at clause 1.2 sets out that the Applicant was employed on a casual basis, and, as such, the Respondent makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.66  The clause continued that the Applicant agreed that no work pattern, rosters, or hours performed will be regular or systematic.67  Yet, the evidence shows that for a period of six months, excluding in that period the aforementioned two weeks where the Applicant did not work, the Applicant had been provided work each and every week in the pattern so described (with the exclusion of two weeks).  As was said in Bronze Hospitality No.2, the ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis.  If that expectation has been formed, it is necessary to assess whether it is a reasonable one.  Notwithstanding the terms of the Applicant’s employment contract, I consider the evidence supports the finding that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis during his period of employment as a casual employee.

 

[68]    It follows that I am satisfied that the Applicant’s period of service as a casual employee counts towards his period of employment.  As such, I am satisfied that the Applicant has completed the required minimum employment period in order to be a person who is protected from unfair dismissal.

 

5        Conclusion

 

[69] Based upon the above reasons, I have concluded that the Applicant is protected from unfair dismissal because he was dismissed as of 13 February 2024, and he had completed a period of employment with the Respondent of at least the minimum employment period.  The Respondent’s jurisdictional objections that the Applicant was not dismissed and has not served the minimum employment period are therefore dismissed, and the matter will now be subject to further programming.”

 

Leeson v Belindara Pty Ltd T/A Flip Out Mandurah  [2024] FWC 1766 delivered 4 July 2024 per Beaumont DP