Diamonds in the rough; the casual rights of a casual employee

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Casual employees are not entitled to many of the protections of the Fair Work system in Australia, including protection from unfair dismissal. However, they may be if they have been employed long enough and their employment was “on a regular and systemic basis” (s.384 Fair Work Act 2009)
There is no definition of ‘regular and systematic’ in the Act. However, by the use of the conjunction ‘and’ it is necessary for an applicant to demonstrate his/her casual employment was both regular and systematic, not regular or systematic. In Ponce v DJT Staff Management Services Ltd t/as Daly’s Traffic (2010) FWA 2078, Roe C, said at paras [66]-[67]:
‘ It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.
In my view, full-time and part-time work must be regarded as meeting the definition of regular and systematic. This is one reason why regular and systematic casual work meets the jurisdictional hurdle and why it is distinguished from irregular, occasional or non-systematic casual work for the purposes of a range of entitlements under the Act and Awards as discussed above. Legislators have deemed it fair to give regular and systematic casuals the same entitlements as other workers because they are engaged regularly and systematically, like full and part-time employees (in respect to matters such as parental leave and unfair dismissal jurisdiction).’
In Grives v Aura Sports Pty Ltd (2012) FWA 5552 , Jones C (as she then was) said at para [29]-[35]:
‘[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:
1. Usual; normal; customary
2. Recurring at fixed time; periodic
3. Observing fixed times or habits
The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:
1. Having, showing or involving a system, method or plan
2. Characterised by a system or method; methodical
3. Arranged in or comprising an ordered system
The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’ It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:
It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases.
Their Honours noted that:
…it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement.
Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:
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”.
and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.
In respect of the meaning of ‘systematic’, their Honours held:
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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.
Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ Accordingly, his Honour stated:
It is clear from the examples that 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.
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).
The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.’
Wang v Sex Worker Outreach Project (SWOP) (2015) FWC 1332 delivered 6 March 2015 per Sams DP