Masterclass; casual employment and the Fair Work Act
There are several myths about who is eligible to apply for an unfair dismissal remedy, or put another way, who is protected from unfair dismissal under the Fair Work Act 2009 in Australia. For example it is more often than not thought that a casual employee cannot bring an application for an unfair dismissal remedy.
This is in fact only party true. Even the Fair Work Commission’s web-site (https://www.fwc.gov.au/resolving-issues-disputes-and-dismissals/dismissal-termination-redundancy/eligibility-remedies-0) is misleading (read wrong) and makes a simple and quite erroneous assertion that casual employees are not entitled to make an application for unfair dismissal.
The truth is that a casual employee, even one who does not work on a regular and systemic basis and who at the point of dismissal does not have a reasonable expectation of continuing employment at that time is protected from unfair dismissal if at the time of dismissal that employee has completed a period of employment of at least the minimum employment period (12 months for small business employers and 6 months for other employers.
In my opinion even if the employee is a true casual (not then working on a regular and systematic basis and with no reasonable expectation of continuing employment at that point of dismissal does qualify for protection provided that he or she has at some stage beforehand completed the minimum employment period.
But what is the nature of casual employment?
There is an excellent analysis in Shortland v The Smiths Snackfood Co Ltd (2010) FWAFB 5709.
“As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. 4 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.
The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.
Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). S.384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. S.384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).
Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”
Whether an employee is or is not a casual employee is a question of fact. The name given by the parties to a relationship is not determinative of the actual nature of the relationship. The true legal relationship is to be determined from a full consideration of the circumstances of the relationship. In Cetin v Ripon Pty Ltd T/A Parkview Hotel PR938639. (Cetin v Rippon), a Full Bench of the Australian Industrial Relations Commission (AIRC) determined the following:
“In Australian domestic law the words ‘casual employee’ have no settled meaning. The true nature of any employment relationship depends on the facts of each case. As Starke J said in Doyle v Sydney Steel Co. Ltd:
‘The description “casual worker” is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact…’
In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.
In the matter before us the parties characterised Ms Cetin’s employment as casual and her employment was classified as casual under the Award. But in our view it would be wrong in principle to treat the character ascribed by an award to particular employment, and adopted by the parties, as conclusively determining the character of the employment for the purpose of regulation 30B(1)(d). Nor is the fact that Ms Cetin was paid a casual loading in lieu of sick leave, annual leave and public holidays determinative of whether or not she was a casual employee for the purpose of regulation 30B(1)(d). Each of these incidents is a consequence of the characterisation chosen by the parties. Rather than being conclusive, each of these matters are simply factors to be taken into account in determining the true character of the employment. As Lee J observed in Gurran v Tarbook Pty Ltd:
‘If parties to an employment contract have attempted in the terms of their contract to describe their relationship in a manner that does not accord with the facts, the relationship established by the facts will prevail.’
Similarly as counsel in Re Porter put it: the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.” [citations removed]
A similar sentiment was expressed by Barker J in Williams v MacMahon Mining Services Pty Ltd  FCA 1321 at 38. (Williams v MacMahon):
“38. To the extent that the parties by the Contract described their relationship as employer and “casual employee” it is well understood that the descriptions supplied by such an instrument will not override the true legal relationship that arises from a full consideration of the circumstances: Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction, Forestry, Mining and Energy Union of Workers WASCA 312; (2004) 141 IR 31 (Tricord) (Industrial Appeal Court of Western Australia) at - per Steytler J .”
The test for determining whether an employee is a casual or not has been expressed in language remarkably similar in effect to that in s.384(2)(a)(i) and (ii). The discussion by
Barker J in Williams v MacMahon at 31 – 36 is apposite:
The parties accept that the WR Act does not define the expression “casual employee” and so the expression should be given its ordinary common law meaning. In this regard, the parties generally accept – leaving aside for the moment what Moore J had to say in Reed – that the terms are imprecise in their meaning, as the Federal Magistrate noted: see Doyle v Sydney Steel Co Ltd  HCA 66; (1936) 56 CLR 545 (Doyle) at 551, per Starke J and 555, per Dixon J.
It is worth noting that in Doyle, at 555, Dixon J observed that wharf labouring (remembering that this was 1936) was typical casual work. Even so, his Honour added that unfortunately what is casual work is “ill defined”. His Honour observed:
Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual. Where the employment involves a contract of service lasting some weeks followed by a long interval of idleness and then another such contract of service and so on, more difficulty arises, if the view is taken that the employee is a casual worker.
It should also be recalled that the observations of Dixon J and Starke J to which reference is often made were in the context of a decision about the computation of weekly earnings under workers’ compensation legislation and their comments about the expression “casual worker” arose in that context.
Nonetheless, the concept of a casual worker being involved in work which is discontinuous – intermittent or irregular – remains relevant and helpful in understanding the concept today. In Reed, Moore J, at IR 425, by reference to those and other well known authorities, observed:
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
I do not consider that these observations by Moore J should be read other than as general observations concerning the concept of casual employment. Certainly, they were not, in my view, intended to be observations about employment on a casual basis under any particularly statutory or regulatory regime. They are a helpful commentary on what the early authorities, such as Doyle, have to say on the topic of what casual employment is under the general law today.
This in my view is confirmed by what the Full Federal Court said in Hamzy v Tricon International Restaurants  FCA 1589; (2001) 115 FCR 78 (Hamzy), at ; namely, that “casual employee” embraces “an employee who works only on demand by the employer” and that “the essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.
Similarly, the Western Australian Industrial Appeals Court in Melrose Farm Pty Ltd t/as Miles Away Tours v Milward  WASCA 175; (2008) 175 IR 455 (Le Miere J with Steytler and Pullin JJ agreeing) whilst acknowledging there is no definitive test, adopted this approach, that “the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.”
In Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic,  FWA 2078. (Ponce v DJT Staff) Roe C considered the operation of s.384 in light of the different approach adopted as between the Workplace Relations Act and the Fair Work Act:
“Australia has many workers engaged as casuals for the purposes of awards who in other jurisdictions and for the purposes of the international conventions are not temporary workers or workers engaged on a casual basis for a short period of time. So many of the authorities focused on whether a worker was in fact a casual or not for the purposes of unfair dismissal jurisdiction rather than on whether the casual met the hurdles established for casuals in the WR Act to achieve jurisdiction. The fact that the employment was regular and systematic and that there was a reasonable expectation of continuing employment was one of the factors used to determine that a worker was not in fact a casual employee for the purposes of unfair dismissal jurisdiction. The Full Bench in Cetin and Ripon said:
‘In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.’
This is no longer likely to be the main focus of contention under the Fair Work Act given that casuals are not excluded and are not subject to differential minimum engagement periods. Under the Fair Work Act an employee can be a casual and can have the same access to the jurisdiction as a full-time or part-time employee. There is no need to prove that the worker is NOT a casual.”
It is correct to say that to access the unfair dismissal jurisdiction an employee does not have to prove that the employee is not a casual. However, having said that, the question as to whether the employee making an unfair dismissal claim is or is not a casual may be very relevant to consideration of matters under s.387 and in relation to remedy.
At the point of considering the application of s.383 and s.384 the same outcome will be achieved by either a determination that an applicant is a casual employee who was employed on a regular and systematic basis and that the applicant as a casual employee had a reasonable expectation of continuing employment on a regular and systematic basis, or by a determination that the applicant was not a casual employee. However, the Commission should always only proceed on the basis of properly exercising the jurisdiction under the Act.
S.384(2)(a) is only concerned with periods in which the applicant is employed as a casual and therefore it is necessary to ensure that periods in which the employment of the applicant was not as a casual are not considered. Establishing when the applicant is a casual and when the applicant is not a casual is still a necessary function for the Commission to undertake.”