See Fair Work Act 2009 s.384(2)
Periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:
If:
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.[2]
Where there is a transfer of business the employer is obliged to make it clear to the transferring employee whether service with the old employer will be recognised. This is important for two reasons. One, the employee will know that he or she will not be protected from unfair dismissal for the qualifying period and secondly, it will assist the employee to determine if he or she refuses the job offer whether he or she is entitled to redundancy pay under s.122(3). For these reasons the written advice to employees should be clear.[3]
Shortland v Smiths Snackfood Co Ltd[4] explained the following principles:
It is the employment that must be on a regular and systematic basis, not the hours worked.[13] However, a clear pattern or roster of hours is strong evidence of regular and systematic employment.[14]
The term 'regular' implies a repetitive pattern and does not mean frequent, often, uniform or constant.[15]
The term 'systematic' requires that the engagement be 'something that could fairly be called a system, method or plan'.[16]
Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:
The Fair Work Act does not define the term 'reasonable expectation of continuing employment', this will depend on the particular circumstances.
One test that has been applied is 'whether or not during a period of at least six months prior to the dismissal ... the employee had ... a reasonable expectation of continuing employment on a regular and systematic basis'.[18]
[1] See for eg Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 (Gostencnik DP, Colman DP, Saunders DP, 20 February 2019).
[2] Fair Work Act s.384(2)(b).
[3] Gregory v Shaver Shop Pty Ltd [2016] FWC 1323 (Gooley DP, 1 March 2016) at para. 18.
[4] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 (Lawler VP, Drake SDP, Lewin C, 16 September 2010), [(2010) 198 IR 237].
[5] ibid., at para. 10.
[6] ibid., citing Andison v Woolworths Limited [1995] IRCA 390 (8 August 1995).
[7] Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 (Lawler VP, Drake SDP, Lewin C, 16 September 2010), [(2010) 198 IR 237].
[8] ibid., at para. 12.
[9] ibid.
[10] ibid., at para. 13.
[11] ibid., at para. 12.
[12] ibid., at para. 13.
[13] Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) at para. 65, [(2006) 149 IR 399]; cited in Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 (Roe C, 15 March 2010) at para. 70.
[14] ibid.
[15] Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) at para. 68, [(2006) 149 IR 399]; cited in Grives v Aura Sports Pty Ltd [2012] FWA 5552 (Jones C, 9 July 2012) at para. 32.
[16] Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) at para. 91, [(2006) 149 IR 399].
[17] Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078 (Roe C, 15 March 2010) at para. 76.
[18] ibid., at para. 64.