This extract from an unfair dismissal decision of the Fair Work Commission deals with the legal principles which distinguish casual and seasonal employees from those employees protected from unfair dismissal.
“[88] Prior to the Fair Work Act, seasonal employees were simply excluded from the operation of the unfair dismissal provisions.54 Under the Fair Work Act, the provisions are different. A seasonal employee is not ‘dismissed’ if their employment comes to an end at the end of the season.55 This different approach means the question of whether a seasonal employee whose employment ended other than at the season can be ‘protected from unfair dismissal,’ can be in issue. That in turn raises the issue of how service as a seasonal employee is to be treated for the purposes of the minimum employment period.
[89] In Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic56 Roe C was considering the effect of ss 383 and 384 in relation to casuals, and what could constitute regular and systemic employment. His view was that full-time and part-time work was by definition regular and systematic.57 As to casual work he said:58
[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.
(citations omitted)
[90] This might be construed as meaning that casual work that is also seasonal work could be taken to be regular and systemic casual work notwithstanding the long periods of absence inherent in seasonal work.
[91] In Unilever Australia Trading Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)59 (Unilever) a Full Bench considered continuity of service for seasonal workers in the context of the construction of an enterprise agreement. They relevantly said:60
[18] Casual and seasonal employees render service. In relation to casuals, the common law position is that each engagement stands alone. Each engagement constitutes a period of service, but there is no continuity of service from one engagement to the next. Such is the case also with seasonal workers, who render service for each season they are engaged, but ordinarily do not have continuity of service from one season to the next. The common law position can of course be altered by statute, contract, or an industrial instrument.
(citation omitted)
[92] In Joshua Rei v Marlau Nominees Pty. Ltd. T/A Paramount Liquor,61 the employer described its work as seasonal, with casuals working more hours during the peak season. Mr Rei was employed until July 2019 and was employed again three months later, both times as a casual. When he finished up in July 2019, he headed off to do seasonal work in the snow fields, with no expectation of continuing regular and systematic work on his return, only a prospect of a further engagement. Then, when he did pick up work with Paramount again three months later, he was engaged on a regular and systematic basis. He was dismissed for misconduct after eight weeks, and at that point did have an expectation of continuing employment. The consequence was that only the service during the employment that had commenced in late 2019 was taken into account, and he did not meet the minimum employment period requirement.62
[93] In Kerry Grey v CBH Group63 the Commission was dealing with an application for an extension of time. In doing so the Commission considered the merits of the substantive application, and said:64
[28] On its face seasonal agricultural casual employment such as this, by its very nature, is unlikely to meet the requirements of section 384(2) of the Act. Consequently, it is more likely than not that this aspect of the Respondent’s further jurisdictional objections would succeed. This weighs against granting an extension of time.
[94] In Isaac Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group65 (Howard) the Full Bench considered a situation in which a seasonal worker had not been offered work for the current season. They said:66
[33] Mr Howard’s employment contract and relationship with Falls Creek concluded on 2 October 2022 by reason of the agreement between the parties, as recorded in the employment contract. There was no termination at the initiative of Falls Creek. Further, in those circumstances the decision by Falls Creek, in February 2023, not to offer any further contract of employment to Mr Howard is not relevant to the question of whether there was a termination of employment at the initiative of the employer. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment contract and relationship at the conclusion of the 2022 winter season. It follows that Mr Howard was not dismissed within the meaning of s 386 of the Act and it was correct for the Deputy President to dismiss his unfair dismissal application.
(citations omitted)
[95] The facts of this matter differ in that Mr Bourner was offered an engagement for the new season, and, in my view, having regard to the basis on which Mr Hodder put the offer, accepted it by his conduct. However, it is relevant that the Full Bench considered that the employment contract and relationship had ended at the conclusion of the previous season as recorded in the employment contract. That bears obvious similarity to the situation here, bearing in mind the content of the “Terms and Agreement” provision in the 2023 Crew Form that Mr Bourner accepted.
[96] Taking an approach consistent with the foregoing decisions, including the Full Bench decisions in Unilever and Howard, requires:
• taking the employment contract and relationship as having ended at the end of the previous season;
• considering that there is not continuity of service between the current season’s work and the previous season’s work.
[97] This approach is also consistent with ss 383, 384 and 22, in my respectful opinion.
[98] An implication of this approach is that, as observed in Kerry Grey v CBH Group, seasonal workers may be unlikely to meet the minimum employment period. People negotiating employment contracts or enterprise agreements can turn their minds to this issue.
[99] Adopting the approach set out above, and assuming, without finding, for the purposes of considering this issue that Mr Bourner was an employee, then at the time of his dismissal he had completed only a short period of continuous service. There is nothing on the material that states an explicit start date for the engagement. I can infer that it was somewhere between 12 July 2024 and 2 August 2024. So, I uphold Ad-Lib’s objection that Mr Bourner had not completed the minimum employment period.
[100] It follows that it is not necessary to consider the issue of whether Mr Bourner had been dismissed.
Conclusion
[101] I have dismissed the Respondent’s objection that it had made on the basis that Mr Bourner was not an employee for the reasons stated above. However, I have upheld the Respondent’s objection that Mr Bourner was not protected from unfair dismissal when his employment came to an end.
[102] I order as follows:
A. The application is dismissed.”
Bourner v Ad-Lib Theatrical Productions Pty Limited- [2025] FWC 435 delivered 13 February 2025 per Butler DP