Unfair dismissal; regular and systematic casual employment

What is a “regular and systematic casual” employee under the Fair Work Act?

“The phrase ‘regular and systematic basis’ is not defined in the FW Act. In Chandler v

Bed Bath N’ Table Pty Ltd12 (Chandler), a Full Bench of the Commission set out the correct

approach to determining whether casual employment is regular and systematic as follows:

[11] 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, 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, 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.

[2023] FWC 1921

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[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, 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.

(Footnotes omitted).

[39] In Bronze Hospitality Pty Ltd v Janell Hansson13 (Bronze Hospitality), a Full Bench of

the Commission considered whether a short period of employment was sufficient to establish

that an employee was a regular casual employee for the purposes of s.23 of the FW Act. The

Full Bench stated:

[21] In any event, evidence of work done over a 13 day period is a fragile basis to

found a conclusion that the employees were employed on a regular basis. We do

not say that a period of 13 days could never be sufficient in order to reach such a

conclusion. There is no minimum period for which persons must have been

employed on a regular and systematic basis in order to ‘count’ for the purposes of

s.23. All the circumstances must be taken into account. But in this case, considering

[2023] FWC 1921

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all that is known about the four casual employees, we do not consider the evidence of

their working arrangements to be an adequate basis to conclude that they were employed

on a regular and systematic basis.

[22] We also note that the details of the hours worked by the four employees concerned

a period that extends three days beyond the end of Ms Hansson’s employment on 7 June

  1. It is difficult to see how hours worked by the four employees after Ms

Hansson’s dismissal could be taken into account. In our view, only 10 of the 13 days

are relevant, and it is not known which of the hours referred to were worked in the last

three days and should therefore be excluded.

[40] Before turning to turn to a consideration of whether each of the casual employees were

‘regular casual employees’, it is important to note that the Respondent did not adduce sufficient

evidence in relation to a number of employees. The time and attendance records before the

Commission were limited to the period of 1 December 2022 to 28 February 2023 and were

produced pursuant to an order for production. This was despite the Respondent being granted

an adjournment to file further materials in support of its jurisdictional objection. Accordingly,

and as will be seen below, in a number of instances I have not been satisfied the Respondent

has discharged its evidentiary onus to establish that a particular employee was not a regular

casual employee at the particular time.

[41] I now turn to a consideration of whether each of the casual employees were ‘regular

casual employees……………………………………………

While for each of these four employees the period of time is much shorter than 72 days,

and there is some variation in the days and times worked, there is also a pattern emerging in

relation to the days and times worked by some of them.24 However, as stated in Bronze

Hospitality, all the circumstances must be taken into account.25…………..”

 

 

Gallagher v Kiss Me Pty Ltd [2023] FWC 1921 delivered 2 August 2023 per Ryan C