This extract from a decision of the Fair Work Commission deals with the issue when will casual employees be protected from unfair dismissal.
“[9] The fundamental question for determining the jurisdictional objection is whether Mr
Talau’s period of service as a casual employee counts towards the period of employment.
Section 384(1) of the FW Act provides: 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. Section 384(2)(a) of the FW Act is reproduced below:
(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;
[10] At the hearing, Mr Brown conceded that Mr Talau’s employment as a casual employee
was as a regular casual employee. That is, there was no contest that the requirement in section
384(2)(a)(i) of the FW Act was satisfied. The contest was exclusively focused upon the
requirement in section 384(2)(a)(ii) of the FW Act.
Relevant facts and findings on relevant contested facts
[11] Mr Talau commenced employment with the Respondent on 2 October 2023. He was
employed as a casual employee and engaged under a contract of employment, which was before
me.3 The contract recorded that the position occupied by Mr Talau was Support Worker &
Business Administration.4
[2026] FWC 2150
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[12] On 20 February 2025, Mr Talau converted to permanent part-time employment with the
Respondent. A contract of employment to that effect was before me.5 That contract recorded
the position occupied by Mr Talau as Operations Manager.6
[13] The Respondent relied upon payroll records covering Mr Talau’s period of casual
employment.7 The payroll record evidence the hours worked by Mr Talau in each fortnight in
that period. The hours worked each fortnight are recorded below by reference to the date that
wages were paid:
• 25 October 2023: 51.87 hours;
• 2 November 2023: 21.65 hours;
• 16 November 2023: 40.25 hours;
• 30 November 2023: 40 hours;
• 14 December 2023: 39.50 hours;
• 28 December 2023: 54.75 hours;
• 11 January 2024: 35.25 hours;
• 25 January 2024: 62.50 hours;
• 8 February 2024: 69.15 hours;
• 22 February 2024: 30.25 hours;
• 7 March 2024: 59.25 hours;
• 21 March 2024: 53 hours;
• 4 April 2024: 45.67 hours;
• 18 April 2024: 69 hours;
• 2 May 2024: 59.25 hours;
• 16 May 2024: 25.75 hours;
• 30 May 2024: 54.50 hours;
• 13 June 2024: 46.18 hours;
• 27 June 2024: 38 hours;
• 11 July 2024: 61.75 hours;
• 25 July 2024: 43 hours;
• 8 August 2024: 27 hours;
• 22 August 2024: 37.50 hours;
• 5 September 2024: 38.42 hours;
• 19 September 2024: 36 hours;
• 3 October 2024: 43.50 hours;
• 17 October 2024: 32.50 hours;
• 14 November 2024: 28 hours;
• 28 November 2024: 44 hours;
• 12 December 2024: 46.50 hours;
• 26 December 2024: 34 hours;
• 9 January 2025: 6 hours;
• 23 January 2025: 52.75 hours;
• 6 February 2025: 28 hours.
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[14] It is clear from these records that the number of hours worked by Mr Talau during the
period of casual employment varied from week to week. There was variation from week to
week as to whether Mr Talau worked during the week, on Saturday, Sunday and / or on public
holidays.
[15] On 8 July 2024, Mr Brown sent Mr Talau an email, which was before me.8 Part of that
email is reproduced below:
Permanent Staff Option
Happy to have you as a full-time staff member at the same pay that you are on now.
Let me know what you want your regular hours to be and you want to start if this is
still something you want.
[16] The Respondent submitted that Mr Talau declined this offer of permanent employment.9
Mr Brown gave evidence to that effect and cross-examined Mr Talau on this topic. It was
suggested that Mr Talau rejected the offer of permanent employment but later basically
accepted the same role on a permanent basis on 20 February 2025. It was suggested that Mr
Talau rejected the offer of permanent employment because of his external commitments, which
was said to include university studies and secondary employment as a tutor. The Respondent
relied upon these matters to make its argument under section 384(2)(a)(ii) of the FW Act.
[17] Mr Talau gave evidence that the offer was not declined. Mr Talau gave evidence that
there were ongoing discussions throughout his employment about his future with the
Respondent. Mr Talau also disagreed that the role he commenced on a permanent basis on 20
February 2025 was the same role as set out in the above email.
[18] With the benefit of observing both Mr Talau and Mr Brown give evidence, I prefer the
evidence of Mr Talau. I do not accept that Mr Talau declined the offer of permanent
employment expressed in the above email. I find that there were ongoing discussions between
Mr Talau and Mr Brown about Mr Talau’s future with the Respondent throughout his
employment with the Respondent. The email does not set out the role being offered. I reject the
suggestion that this email supports a finding that the role said to be offered in this email is
somehow the same role that Mr Talau commenced on 20 February 2025.
Consideration
[19] Section 384(2)(a)(i) of the FW Act refers to a regular casual employee, which is defined
at section 12 of the FW Act. An employee will fall within that definition if they are a casual
employee and employed by the employer on a regular and systematic basis. A Full Bench of
the Commission in Angele Chandler v Bed Bath N’ Table Pty Ltd10 found that it was
unnecessary 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 employment is regular and systematic.11 The Full Bench in Chandler explained that the
question of whether a casual employee’s employment was regular and systematic is to be
answered by 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
[2026] FWC 2150
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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.12 The Full Bench in Chandler endorsed and
applied the earlier observations in Yaraka Holdings that the term regular should be construed
liberally and is intended to imply some form of repetitive pattern.13 The Full Bench in Chandler
further endorsed and applied the earlier observations in Yaraka Holdings that the concept of
engagement on a systematic basis only requires that the pattern of engagement occur as a
consequence of an ongoing reliance upon the employee’s services as an incident of the business
by which he or she is engaged.14
[20] On the application of those principles to the facts before me, I am satisfied that Mr
Talau’s period of casual employment was as a regular casual employee. Mr Talau’s period of
casual employment was the subject of a single and ongoing contract. There are several terms of
the contract which evidence a repetitive pattern of work by Mr Talau and ongoing reliance upon
Mr Talau’s services by the Respondent. These terms include clauses 3.2, 4.2(b), 4.2(e), 5(a),
5(c), 6, 7, 8, 10.2, 20, 21, 22 & 24 of the contract. Mr Talau’s period of engagement as a casual
employee was for a period of over 16 months. That is a meaningful period and an indicator that
the employment was regular and systematic. The payroll records discussed above evidence that
Mr Talau frequently worked for the Respondent during the period of casual employment. The
number of hours worked by Mr Talau each fortnight are identified above. The frequency by
which Mr Talau performed work for the Respondent and the number of hours worked by Mr
Talau support a finding that there was a repetitive pattern, and that the employment was regular
and systematic. There was a factual dispute about the type of work performed by Mr Talau. Mr
Talau performed both frontline support work and administrative / operational duties. The
Respondent submitted that Mr Talau performed a substantial amount of frontline support work
during his period of casual employment.15 Mr Talau disagreed with that characterisation.16 It is
unnecessary for me to determine exactly how many shifts that Mr Talau performed frontline
support work and how many shifts Mr Talau performed administrative / operational duties. The
evidence before me demonstrates Mr Talau performed some administrative / operational duties
during his period of casual employment.17 The performance of such administrative / operational
duties points to ongoing reliance by the Respondent upon Mr Talau’s services. This supports a
finding that the employment was regular and systematic.
[21] Section 384(2)(a)(ii) of the FW Act was discussed by Jackson J of the Federal Court of
Australia in Bronze Hospitality Pty Ltd v Hanson (No 2),18 where his Honour found:
[40] … 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 Hoffman). 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…
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[22] On the application of those principles to the facts before me, I am satisfied that
throughout the period of casual employment Mr Talau had subjectively formed an expectation
of continuing employment by the Respondent on a regular and systematic basis. I reject any
suggestion made by the Respondent that Mr Talau did not hold that expectation because of the
external commitments discussed at the hearing. Holding a second job, undertaking university
studies or numerous other commitments is not incompatible with an expectation of continuing
employment on a regular and systematic basis. I am satisfied that expectation was a reasonable
one. There are several factors supporting that conclusion. The first is the frequency and the
hours worked by Mr Talau during the period of casual employment. I have found that those
matters support a finding that the employment was regular and systematic. I am equally as
persuaded that those matters support a finding that Mr Talau’s expectation of continuing
employment by the Respondent on a regular and systematic basis was reasonably held. The
second relates to my finding that there were ongoing discussions between Mr Talau and Mr
Brown about Mr Talau’s future with the Respondent throughout his employment with the
Respondent. If Mr Talau did not have an expectation of continuing employment with the
Respondent on a regular and systematic basis, I am satisfied that he would not have participated
in those discussions. The fact that such discussions took place throughout the employment
demonstrates that Mr Talau’s expectation of continuing employment by the Respondent on a
regular and systematic basis was reasonably held. Ultimately, those discussions resulted in Mr
Talau converting to permanent part-time employment with the Respondent on 20 February
2025. This further reinforces that Mr Talau’s expectation was a reasonable one.
Conclusion
[23] For the reasons explained above, I find that Mr Talau’s period of service as a casual
employee counts towards his period of employment. That is because section 384(2)(a) is
satisfied. The effect being that Mr Talau satisfies the relevant minimum employment period
and is a person protected from unfair dismissal.
[24] I dismiss the Respondent’s objection that Mr Talau was not a person protected from
unfair dismissal.
[25] The parties will shortly receive a notice of listing, which lists the matter for a case
management conference.”
Talau v Tegrity Services Pty Ltd [2026] FWC 2150 delivered 19 June 2026 per Walkaden C