Unfair dismissal; what is a casual employee?

This extract from a recent unfair dismissal case in the Fair Work Commission is an excellent summary of the legal principles which define a casual employee relationship.

 

“[16]    I have no difficulty in rejecting the Respondent’s submissions, and conclude, in respect of s.384(2)(a)(i) and (ii), that the Applicant’s employment as a casual employee was on a regular and systematic basis, and she had a reasonable expectation of continuing employment.

 

[17]      In Yaraka Holdings Pty Ltd v Giljevic,7 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 casual workers as workers for the purpose of that Act 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 1996,8 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.

 

[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.”

 

[18]      Similarly, Madgwick J found (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).”

 

[19]      In Chandler v Bed Bath N’ Table Pty Ltd,9 the Full Bench of the Fair Work Commission observed that the reasoning in Yaraka Holdings has been applied to the concept of casual employment on a regular and systematic basis in the Act. In WorkPac Pty Ltd v Skene,10 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 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).”11 The Commission, in its own decisions, has consistently applied Yaraka Holdings to s.284(2)(a), including in the Full Bench decisions of Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell,12 and Bronze Hospitality Pty Ltd v Janell Hansson,13 as well as in numerous first instance decisions.

 

[20]      The meaning of “casual employee” is set out at s.15A of the FW Act as follows:

“Meaning of casual employee

 

(1)        A person is a casual employee of an employer if:

 

(a)       an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

 

(b)       the person accepts the offer on that basis; and

 

 

 

 

 

(c)        the person is an employee as a result of that acceptance.

 

(2)        For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

 

(a)       whether the employer can elect to offer work and whether the person can elect to accept or reject work;

 

(b)       whether the person will work as required according to the needs of the employer;

 

(c)        whether the employment is described as casual employment;

 

(d)       whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

 

Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

 

(3)        To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

 

(4)        To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

 

(5)        A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

 

(a)       the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

 

(b)       the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”

 

[21]      The meaning of “regular casual employee” is defined in s.12 of the FW Act as follows:

 

 

 

 

 

“regular casual employee” : a national system employee of a national system employer is a regular casual employee at a particular time if, at that time:

 

(a)       the employee is a casual employee; and

 

(b)       the employee has been employed by the employer on a regular and systematic

basis.

 

[22]      That the employment was “regular” in the sense of being frequent is amply demonstrated by the data in the Employment Payment Summary referred to in paragraph [6] above. It shows the Applicant, in the last 6 months of her employment at least, was employed in almost every week.

 

[23]      The employment can also be characterised as “systematic” as it was seemingly arranged pursuant to an identifiable system. The Contract provided “The Employer will notify you when you are required to work from time to time.” While the work was clearly stated to be of a casual nature, with hours changing from week to week, and with no obligation to offer a minimum number of hours, the regular and systematic nature of the employment identified above, including the contractual obligations, and the sheer regularity of engagement, leads me to the conclusion that the Applicant had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis (s.384(2)(a)(ii)).

 

[24]      Accordingly, I find that, the Respondents jurisdictional objection is dismissed, and the Application may proceed to be dealt with on its merits.”

 

 

Roche v The Trustee For The Dolphin Hotel Unit Trust  [2024] FWC 606 delivered 10 May 2024 per Cross DP