Fair Work Commission

Introduction

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:

• the casual employee was employed on a regular and systematic basis, and
• the casual employee had a reasonable expectation of ongoing employment on a regular and systematic basis.^[1]

Transferring employees

If:

• the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer, and
• the old employer and the new employer are not associated entities when the employee becomes employed by the new employer, and
• the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

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]

Case example

What is a 'period of service' for a casual employee?

Shortland v Smiths Snackfood Co Ltd^[4] explained the following principles:

• Each occasion a casual employee is engaged is a separate contract of employment.^[5] These contracts may be week to week, shift to shift, hour to hour or for any other agreed short period.^[6] In this sense no casual employee has a continuous period of employment beyond any single engagement.^[7]
• For the purpose of unfair dismissal it is the period of service rather than the period of employment that is relevant.^[8] If the conditions of s.384(2)(a) are satisfied, then a period of service by a casual employee will count towards the period of continuous service.^[9]
• Once continuous service is established, the employer or employee may only break continuous service by making it clear to the other party that there will be no further engagements.^[10]
• For casual employees it is possible that some periods of service will meet the conditions of s.384(2)(a) and others will not.^[11]
• Absence for illness or injury does not break a period of continuous service.^[12]

What is employment on a regular and systematic basis?

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 employer offered suitable work when it was available at times that the employee had generally made themselves available, and
• work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.^[17]

What is a reasonable expectation of continuing employment?

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]

Case examples

References

^[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.