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Introduction

Read the full decision here.

This case deals with the term “regular and systematic”, are term that is not defined in the Fair Work Act and has been the subject of recent controversial Federal Court findings.

This decision by Deputy President Sams involved a jurisdictional issue relating to an unfair dismissal. The former employer arguing that the applicant was a casual employee and therefore unable to prosecute an unfair dismissal claim.

Background

The applicant was a Food and Beverage Attendant in the Northern Territory tourism sector, who worked a minimum of 2 shifts and up to 6 shifts in every week she was in Darwin, from 6 December 2018 to 17 June 2019 uninterrupted, save for 3 weeks when she was on approved absence (leave). In the DP’s view:

“…this pattern of employment fits comfortably within the definition of casual employment on a regular and systematic basis, in accordance with the authorities and the policy intention of the statutory provisions”.

The objection

The former employer argued that the applicant was a casual employee that was not employed “regular and systematic” basis; stating that the applicant’s hours varied 12 to 42 hours a fortnight. The shifts varied from week to week and the days of the week varied from week to week; and that the applicant’s shift patterns were determined by guest occupancy, which varied day to day and week to week. Although the applicant may have worked three hours in one week, this could not constitute regular and systematic work patterns. The former employer arguing that there must be a clear pattern of regular and systematic employment, citing Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 and Ponce v DJT Staff Management Services t/a Daly’s Traffic (‘Ponce’).

The former employer submitted that even if it was found that the applicant worked on a regular and systematic basis, there was no evidence the applicant had a reasonable expectation of continuing employment. Her only comment in her statement was ‘I worked regular and systematic shifts throughout my time in this role.’ Other objective and subjective factors confirm the applicant could have had no reasonable expectation of continuing work. These were:

  • the nature of the work was highly seasonal;
  • a roster was only issued every week and the applicant could not have known what shifts she would be working beyond a week; and
  • the applicant had a holiday from 16 March – 2 April 2019.

The correct approach

The DP finding that the correct approach the Commission is to apply in cases of this kind, was recently outlined in Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306 (‘Chandler’) at [11]-[13], where the Full Bench said:

‘[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:

“[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.”

[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) (emphasis added)