by Paul O’Halloran and Michael Russell Colin Biggers & Paisley

Introduction

The High Court of Australia has granted labour hire company WorkPac Pty Ltd special leave to appeal the controversial decision in WorkPac v Rossato in an attempt to correct the confusion around the definition of casual employment.

The High Court has granted a labour hire company special leave to appeal the controversial decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato  [2020] FCAFC 84 (Rossato) which currently represents the legal position on the definition of casual employment in Australia.

What will the High Court be considering in Rossato?

WorkPac submits that the Rossato  decision is of widespread importance because it has the capacity to apply to more than a million employees, in many sectors of the Australian economy, and in doing so alters the legal classification of their employment from casual to permanent, at an enormous cost to the Australian economy of more than $14 billion.

WorkPac will seek to argue before the High Court that Mr Rossato was a genuine casual employee for the purposes of the Fair Work Act 2009 (Cth) and the applicable enterprise agreement that applied to him.

In the alternative, WorkPac seeks an order preventing ‘double-dipping’ by casual employees, allowing the Court to ‘set off’ any leave entitlements owed against the renumeration received which included casual loadings.

The outcome of the High Court is not expected to be delivered until mid 2021.

What is the current legal test?

The current reasoning drawn from Rossato  and an earlier case of WorkPac Pty Ltd v Skene [2018] FCAFC 131 suggests that the “essence of casualness” takes into account the following factors:

  1. The absence of a firm advance commitment as to the duration of an employee’s employment or the days (or hours) of work is the essence of casualness.
  2. The key indicia of casual employment includes irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.
  3. Payment of casual employees on an hourly basis, will be of less significance in determining the presence/absence of a firm advance commitment, if all the employees are paid on an hourly basis.
  4. Despite mechanisms existing in a contract which contemplate some variability as to the actual hours of work to be allocated to an employee, where an arrangement can be construed as being an offer of continuing work to be performed according to an agreed pattern of full-time hours of work, together with an ambiguous or indefinite contract duration, it is indicative of a “permanent” employment relationship.
  5. Shorter notice is not traditionally consistent with regular or permanent employment.
  6. Contractual machinery, which provides an employee a right to refuse or choose between shifts, or gives an employee an opportunity to provide her or his service in response to a specific demand, is consistent with a casual employment relationship.
  7. The key indicators of a casual arrangement will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.
  8. Whether an employee is paid a casual loading is a relevant consideration. To effectively identify the loading, contracts of employment should specify which component of the rate of pay is allocated to a casual loading or monies in lieu of paid annual leave. However, these references will not be sufficient, if in reality the employment is for an indefinite duration with stable, regular and predictable work.

What should employers do between now and the outcome of the High Court decision?

Until or unless overruled by the High Court later in 2021, the Rossato  decision represents the current legal position on the definition of casual employment in Australia for the purposes of certain entitlements. The outcome may result in further legislative intervention with both employer and employee groups, with the case emphasising the shortfalls and uncertainties in the current legislative framework for casual workers and their employers.

For now and unless overruled, employers are encouraged to consider at least the following:

  1. Review your casual cohort:  Regularly review your workforce to consider whether any long-term casuals are more appropriately classified as permanent employees. This may mean applying the casual conversion clauses already in modern awards or enterprise agreements.
  2. Educate internal HR and recruitment:  Ensure those responsible for hiring staff within your organisation are aware of the casual employment indicia and the factors that would influence a genuine casual employee morphing into a permanent employee.
  3. Ensure enterprise agreements and contracts are clear about casuals: To reduce the risk of employees claiming they are not casuals, ensure contracts or enterprise agreements include a detailed definition of “casual employee”.
  4. Separately identify the casual loading: Casual loadings should be separately identified in employment contracts and payslips and expressly stated that to be paid in lieu of paid annual leave and other entitlements.
  5. Set-off clauses: Review set-off clauses in contracts to endeavour to ensure they meet the specific needs in this complex area of law to increase the chance that casual loadings can be claimed back in the event of a challenge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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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)

Introduction & Background

Labour hire firm Workpac is again in the news in relation to the employment of casual workers, You may recall the Skene decision which the Federal Court deemed that, what Workpac had thought to be a casual employee (Mr Skene), the court ruled that Mr Skene was not a casual.

The feral government were quick to act, implementing a provision in the Fair Work Regulations 2009, to the effect that if you put the wording in an industrial instrument (ie contract, award. EBA), that states that clearly states that the 25% loading is paid instead of leave, etc, then this nullified the Skene decision.

However, last week (20 May 2020) a Full Bench of the Federal Court handed down yet another decision relating to casual employment. Only this time Workpac itself was the progenitor in asking the Court seeking a declaration by the Court that casual employees receiving a casual loading not be entitled to leave payments. This case “used” Mr Rossato, as an example, who like Mr Skene, was on-hired by Workpac to various mine sites.

Summary of Federal Court decision

In summary, all three judges concluded that Mr Rossato was not a casual employee and was there for entitled to leave. In this 272-page judgement, the fact that (as in Skene) there was no actual legal definition of a casual employee other than they are neither a full-time nor part-time employee. Therefore, relying on past case law (precedents), and settling on the term “firm advance commitment” made Mr Rossato and Mr Skene both not casuals.

But most instructional to employers, should be the decision means that just you call someone a casual, does not mean that they are. In my words: “if it has feathers and quacks, it’s a duck”.

So how do we fix the problem?

Through the annuls of industrial relations law, everybody new what a casual employee was, right? Not so, since the expansion of what was once known as being a “temp” (temporary employee), there has been a huge spike in the number of so-called labour hire firms spring into the employment market. Great! Say the employers, which could now grab labour if and when they need it. No pesky paperwork or dealing with poor performance, just labour to do a job.

This in turn has led to, what the unions call, the “casualisation of the Australian workforce”. That is, we now have large tranches of workers who have zero job security. This has been illustrated very clearly with the Jobkeeper payment replicating the unfair dismissal laws of a casual employee only eligible (in this case) JobKeeper payments if they have worked regularly and systematically for an employer for more than 12 months.

My belief is that casual employment should be limited in scope and be the last option of employment. For workers, casual employment should be the icing on the cake, not the whole cake. That is, to supplement a low paying job, as was taxi driving years ago.

Just change the law, right?

Well yes and no.

With the Skene and Rossato decisions, coupled with a huge amount of unfair dismissal case law to draw on, the legislators should not find it too hard to come up with a legal definition of casual employment.

On the other hand, we all know what casuals were before the advent of labour hire firms: a warm body you get in to fill a gap caused by someone pulling a “sickie” or (maybe) short-term leave vacancy.

Temporary or fixed term employment

Which leads to the issues surrounding the employment of temporary or fixed term employment. The employment of such a person may be warranted by an employer to fill short, medium long-term vacancies or maybe a fixed term budget allowance.

Temporary and fixed term employment are treated, by industrial law, as “permanent” or “ongoing” employees for the purpose of the accrual of leave entitlements. That is, you would pay the “temp” as you would a permanent employee (albeit, probably at a lower rate of pay – depending on which Modern Award/EBA in play), but on a pro-rata basis. Annual leave would usually be paid at the end of the assignment.

The problem with such temporary/fixed term arrangements is that the courts have determined that the dates of such employment are set in stone. That is, (except for serious misconduct), to be considered a temporary/fixed term employee, the worker must serve out the entire contracted period (and also not exceed this period, unless a subsequent agreement is put in place).

Put simply, contracts that state “up to X date” (known as “outer limit contracts) have been determined not to be temporary/fixed term employment. This goes without saying, if you wish to shorten the length of the employment.

I believe that to fix this issue, legislation needs to be adopted to provide for “outer limit” contracts.

Permanent Casuals

There is no such animal. You are either “permanent” or “casual”. Not both. End of story.

I know of a number of businesses who adopt this model (hence the limitations imposed under unfair dismissal law). And they complain when an employ does not turn up for work!

For the uninitiated, casual employment is a series of “engagements” (usually a day) and each period of casual employment concluded at the end of each day. So, the “casual” bit works both ways, the employee may say “do not turn up for work tomorrow” and the employee may say “no thanks”.

Some other companies use an initial period of casual employment as a “probationary period”. The reward for becoming so-called “permanent – the taking away of the casual loading, effectively rewarding the employee with a 25% pay cut. Remember, if you are worried about unfair dismissal, employees must be employed for longer than 12 months if you employee fewer than 15 employees or six months if you employ more than 15. This is plenty of time to decide.

Full-time ongoing employment

Notice I did not use the work “permanent”. What employment is permanent these days (perhaps the public service?), but I digress.

Employees who are lucky enough to be employed on a full-time ongoing basis as do part-timers, have the most job security of all employment types. They are entitled to all sorts of leave arrangements, including able to take a holiday. They are also more likely to be able to apply for a mortgage to buy a house.

Nothing to see here. Let us move on.

Part-time ongoing employment

Everybody knows that a “permanent part-time” (see my previous comments) is less than the hours of a full-time employee; usually but not always 38 hours per week.

Under most (if not all) Modern Awards, a part-time employee must:

  • Be advised (in writing) on which day of week they will work, and the hours on each day to be worked. I get this. This restriction is put in place to stop unscrupulous employers from changing a part-timer’s days to avoid paying public holidays. You usually work on a Monday, “not this week mate. Public holiday on Monday we will move you to Tuesday”. Simple.
  • If the agreed hours (remember, in writing) are exceeded on any day, then overtime is payable.

And it is the overtime bit that gets on my client’s (and my) nerves. This is a fairly recent event in industrial relations terms, creeping into all awards.

It is my strong belief that the payment of overtime for anything less than the full weekly hours (again, usually 38) is not helpful to the employee, who may otherwise benefit from additional hours, or the employer who will be reluctant to offer further hours due the cost imposition (or ignore this requirement altogether).

The answer is simple. Overtime should only be paid after working 38 hours (or average of) a full-time worker.

Summary and Conclusion

Casuals

  • A definition should be legislated and placed in the Fair Work Act.
  • Casuals should be a hire of last resort – not a business model.

Permanent casuals

  • No such thing. Move on.

Temporary/Fixed term

  • Again, the definition should be refined to allow for “outer limits” of employment, therefore allowing for greater flexibility in employment.

Part-time

  • Remove restrictive overtime provisions and align with full-time hours for the purposes of overtime.

Full-time

  • The holy grail. If the business has the capacity, then this should be the first option.

Unfair dismissals

On a final note, employers have been critical of this legislation since its inception. I agree. It has developed its own $multi-billion industry – especially in the No-win, no-fee space.

However, the spectre of an unfair dismissal should not be used as a business model. If you want happy, productive workers – treat them with respect and be on the look-out for toxic employees and/or poor behaviour and address these issues in a professional manner treating each case in a consistent and but fair manner.

Read the full decision here.

Introduction and background

In this application for appeal against a decision of Deputy President Mansini, who ruled against an ex-employee of a company that determined that the ex-employee was not a person protected from unfair dismissal because she had not completed the minimum employment period, and accordingly dismissed her application for want of jurisdiction.

Statutory hurdles

Pt 3-2 of the Fair Work Act 200  (FW Act) are as follows:

  • Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy (reinstatement or the payment of compensation).
  • Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be “protected from unfair dismissal” is that the person in an employee who has completed a “period of employment” with the relevant employer of at least the “minimum employment period”.
  • Section 383(a) provides, in respect of an employer which is not a small business employer, that the “minimum employment period” is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. The company, in this instance, was not at the time of the dismissal a small business employer.
  • Section 384(1) provides that an employee’s “period of employment” with an employer is the period of continuous service the employee has completed with the employer. Relevant to this application, section 384(2)(a) provides:

“(2) However:

(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 on a regular and systematic basis; 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…”

The ex-employee worked her first shift as a casual employee with the company on 25 June 2018 and worked her last shift 8 months and 3 days later on 28 February 2019. However the company contended that this did not count towards the ex-employee’s period of employment or satisfy the minimum employment period requirement because her employment was not on a regular and systematic basis and she did not have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

The decision-in-chief

The evidence concerning the pattern of the ex-employee’s casual engagement over the period of her employment upon which the Deputy President principally relied in reaching the conclusion that she did is the company’s record of the calendar days, daily hours and weekly hours worked by the ex-employee in each week from Thursday 5 July 2018 through to her last shift on Thursday 28 February 2019. The Deputy President also relied upon the ex-employee’s fortnightly wages data.

On the basis of this material, the Deputy President stated the following conclusion relevant to s 384(2)(a)(i):

“[19] I find [the company’s evidence] the most reliable and relevant source of evidence in this respect. An objective analysis of [the company’s evidence], taking into account ex-employee’s identified discrepancies, reveals no regularity of the ex-employee’s engagements over the period. Whilst the ex-employee worked at least 3 days each week, [the company’s evidence] shows the number of days worked each week, the days of the week worked and the duration of the shift on each occasion varied significantly such that no pattern is able to be identified.

“[20] The fortnightly wages data does not assist in identifying regularity or a system of engagements, providing a more general overview than the detail depicted by [the company’s evidence]. The evidence of other employees’ hours worked also does not assist in determining regularity or system of Ex-employee’s engagements.”

The Deputy President also relied upon an email from her to the company dated 27 February 2019:

“With regards to rostering I understand that ALL casuals do not have guaranteed hours as well as casuals have a right to refuse any shift given the nature of the casual position without retribution.”

And:

“[25] Further, the objective documentary evidence including employment contract, position description, workplace policies, rosters prepared in advance when compared with actual hours worked and pay advices does not support a finding that the ex-employee had a reasonable expectation of ongoing employment.”

On the basis of the above findings, the Deputy President concluded that the ex-employee had not served the minimum employment period and for this reason was not a person protected from unfair dismissal, and accordingly dismissed her application.

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The Appeal

The ex-employee submitted that the Deputy President erred in reaching this conclusion because:

  • The Deputy President did not take into account that the ex-employee, as part of a predominantly casual workforce, worked shifts allocated to her on a monthly roster based on prior indications of her availability for the month;
  • The roster planned in advance for each month indicated that the employment was on a regular and systematic basis, with all casual shifts planned in advance except for some occasional additional shifts offered to cover for unreliable employees;
  • The Deputy President also did not take into account that the ex-employee had an ongoing contract of employment with the company;
  • The records tendered by the company showed that the ex-employee worked 3-4 shifts each week for 32 weeks with no break taken;
  • The company engaged many longstanding casual employees on a regular and systematic basis with the expectation of ongoing employment;
  • The ex-employee’s email of 27 February 2019 was taken out of context;
  • While the hours and days were varied, the employment itself was regular and systematic, but the Deputy President did not take this into account; and
  • The rostering system and regularity of employment meant that the ex-employee had an expectation of ongoing employment.

The ex-employee contended that the grant of permission to appeal would be in the public interest because the decision affected the rights of over 1700 casual employees engaged by the company and the decision was contrary to many previous decisions of the Commission concerning the circumstances in which casual employees could be characterised as working on a regular and systematic basis.

The company, on the other hand, unsurprisingly submitted the polar opposite to the ex-employee’s grounds for appeal.

Consideration

The Full Bench led straight off with:

“It is apparent on the face of the decision that the Deputy President’s determination as to whether [the e-x-employee’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…

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’.

“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.

“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…”

“Similarly, Madgwick J said…

“…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.

The Full Bench emphasising that (in my words) that Yaraka Holdings is the “golden standard” in determining the concept of casual employment on a regular and systematic basis in the FW Act. [And not forgetting WorkPac Pty Ltd v Skene] the Federal Court Full Court also favoured the Yaraka Holdings position.

The Full Bench concluding

The FB finding:

“We conclude…that [the ex-employee’s] employment as a casual employee was on a regular and systematic basis. That it was regular in the sense of being frequent is amply demonstrated by the [the company’s records]. This shows that [the ex-employee] was employed in every week…until the termination of her employment, and in 30 of those weeks she was employed for 3 or 4 shifts in the week. The employment can also be characterised as systematic that is, arranged pursuant to an identifiable system – for two fundamental reasons. The first is that, unusually, [the ex-employee’s] casual employment was the subject of a single and ongoing written contract executed on 15 June 2018″.

Contract of employment

The FB determining that:

“The terms of the contract demonstrate that [the ex-employee] was employed to work in a particular position in [the company’s] operational structure in accordance with a pre-established and ongoing framework of legal obligations. The second reason is that the evidence demonstrated that, for the most part, [the ex-employee’s] employment was the subject of a monthly roster system involving her having to indicate in advance her availability to work for the month in question and then working shifts in accordance with the roster that was subsequently prepared and posted. The copies of the monthly rosters which [the ex-employee] provided to the Commission clearly demonstrate that this was a system which applied to her and the other casual employees at the store at which she worked.

“…during her period of service with [the company] as a casual employee, [the ex-employee] had a reasonable expectation of continuing employment on a regular and systematic basis. That expectation was engendered by:

(1) the ongoing contract of employment which established a legal framework for the allocation of work to [the ex-employee] in a particular position, effectively required her to hold herself available to work during “blackout periods”, and continued until a prescribed termination event occurred;

(2) a monthly roster system, under which a roster was posted in advance of each month setting out the shifts that were allocated to [the ex-employee] during the course of the month based on her prior indication of availability to work; and

(3) the frequency and amount of work that was allocated to [the ex-employee] over the course of her employment”.

Decision

The FB decided:

  • Permission to appeal is granted.
  • The appeal is upheld.
  • The decision-in-chief is quashed.
  • The ex-employee’s unfair dismissal remedy application be referred back to the Unfair Dismissal Case Management Team for allocation to and final determination by a Commission member “on the basis of our finding that [the ex-employee] is a person protected from unfair dismissal…”.

Commentary

The hiring of a casual employee has become overly complicated and problematic. Whilst this decision serves as a useful guide (in the employment of casuals), it is descriptive of a need for a legal definition of what a casual employee is.

In my opinion, this issue is not helped with the requirement to pay permanent part-time employees overtime if they work in excess of their core hours. Overtime should be applied in the same principles as a full-time employee.