[2010] FWA 2078 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
COMMISSIONER ROE |
MELBOURNE, 15 MARCH 2010 |
Jurisdiction – casual employment on a regular and systematic basis.
The proceedings.
[1] The Applicant Cori Ponce was represented by Peter Hull and the respondent DT Staff Management Services Pty Ltd trading as Daly’s Traffic was represented by Gerard McKeown and Dominic Tesoriero. Leave was granted to Mr Hull, Mr McKeown and Mr Tesoriero to appear.
[2] Evidence was given by the following witnesses for the applicant:
[3] Evidence was given by the following witnesses for the respondent:
[4] The applicant and the respondent provided documentary evidence as to the times and dates Mr Ponce worked over the period of his employment and also some analysis of this information.
The issue.
[5] Mr Ponce was employed by Daly’s Traffic as a traffic controller during the periods 6 September 2006 until 29 October 2006 and then from 3 February 2008 until at least 29 October 2009. The first period of employment is not relevant in these proceedings.
[6] The following matters were agreed between the parties and I find that:
[7] Given that there is agreement that Mr Ponce was not given notice of dismissal, to achieve jurisdiction Mr Ponce must have been employed for a period of a minimum of 6 months ending at the time of the dismissal (Section 383 of the Act). The date of the dismissal is sometime between October 29 2009, the last day on which Mr Ponce worked, and the date of the termination of his contract of employment which occurred sometime between November 12, when Mr Ponce gave uncontested evidence that he was told by Mr Bradley that he would not be getting any more shifts, and November 18, when there is evidence from the respondent and the applicant that he was given a Separation certificate signed by Ethna Daly, Office Manager for the respondent.
[8] As the period of employment of Mr Ponce from 3 February 2008 until at least 29 October 2009 exceeds six months the parties agreed that if the conditions set out in Section 384(2)(a) of the Act concerning regular and systematic employment are found to be met then Mr Ponce satisfies the requirements of Section 382 of the Act for unfair dismissal jurisdiction. FWA would then be required to consider if the dismissal was unfair in accordance with Division 3 of Part 3-2 of the Act. Conversely, if the conditions set out in section 384(2)(a) of the Act are not met then Mr Ponce does not meet the requirements for unfair dismissal jurisdiction under Part 3-2 of the Act.
The Legislation.
[9] The relevant provisions of Section 384 of the Act are as follows:
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(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;”
[10] The provisions of Section 22 of the Act are also relevant as follows:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.”
The evidence.
[11] The evidence in this case focused on the following matters:
[12] I now deal with each of these five matters in turn.
The nature and pattern of Mr Ponce’s employment.
[13] In this case there is no contest that Mr Ponce was a casual employee. Furthermore the times and dates on which the applicant worked were not determined by a published roster and the availability of work did depend upon the demand for labour generated by the clients of the company.
[14] There is no evidence of any formal letter or advice at the time of first engagement concerning the regularity or duration of future work. However, Mr Ponce clearly understood he was engaged as a casual employee.
[15] The company has a number of regular clients such as Vic Roads, Yarra Trams, Boral, City Link, local councils and the Department of Infrastructure. If the client does not need Traffic Controllers on a particular day due to inclement weather or delays in provision of materials then particular Traffic Controllers will be assigned to other work or may not be called in for work. If the Traffic Controller is sent home early they are paid a minimum of 4 hours at the appropriate rate for the day. If the client needs additional Traffic Controllers, due for example to road works at more complex intersections, then additional Traffic Controllers may be called in for work at short notice.
[16] The evidence was that there were some big jobs for major clients which would be planned in advance and would continue over a reasonable period of time (e.g. major road works for Vic Roads or Boral) and there were also many smaller more ad hoc jobs. The evidence was that there were specified team leaders who tended to work for particular clients and to follow through on those jobs to completion and those team leaders tended to have a crew of traffic controllers who regularly worked with them on those jobs. The core of that crew (approximately 4 workers for a normal intersection) tended to also follow that job each day until completion although additional traffic controllers would be called in if there was extra work.
[17] Daly’s Traffic maintained a list of available and trained Traffic Controllers and called Traffic Controllers in to work from that list. The Traffic Controllers are expected to have qualifications in controlling traffic, construction traffic in particular, and also to have completed the “red card training” to meet OHS requirements for construction industry work. When Traffic Control work on major jobs was not available Traffic Controllers were engaged on smaller jobs. Sometimes when a client cancelled or delayed a job Traffic Controllers were moved to other jobs for that day and on a few occasions to general work, not traffic controlling duties.
[18] On one occasion, on 5 September, Mr Ponce was asked to perform security work to guard a work site where equipment and tools would otherwise be left unattended. Mr Ponce gave evidence that a loss of equipment occurred on this day and that the company requested him to reimburse the cost of that equipment and that his failure to do so led to him being dismissed. The respondent did not respond to this evidence as quite properly it took the view that this is a matter for an unfair dismissal hearing in the event that jurisdiction is established in the current proceedings.
[19] The evidence as to when Mr Ponce worked can be summarised as follows.
[20] The days and nights when Mr Ponce worked were summarised in a calendar produced by the company and submitted as an attachment to the statement of Mr Bradley. 1 This calendar may have understated the work of Mr Ponce as there were at least two occasions’ when he worked both a day shift and a night shift on the same date.2
[21] Mr Ponce requested not to work during the first three weeks of November 2008 as he was getting married. Mr Ponce gave evidence that was confirmed by Mr Bradley 3 that he advised the company that he was getting married and that he wanted some time off work. There is no suggestion that he was granted leave in a technical sense in that he was a casual employee not eligible for leave. However, it is clear that he advised he wanted this time off and this was accepted by the employer who then did not offer him work during this period.
[22] Also Mr Ponce did not work between December 14 2008 and January 6 2009. The evidence of Mr Ponce was that there was a lack of work during that period. The evidence of the other witnesses did confirm that work quietened down in the period just before Christmas and in the first week of January and then slowly built up during January. 4 The evidence from Mr Bradley5 was that there was plenty of work in the first three weeks of December and then it quietened down. So the only issue in dispute is the week of the 14th December when Mr Ponce says he didn’t work due to lack of work but Mr Bradley recollects that it was probably still busy in that week. In any case there is no suggestion that Mr Ponce was asked to work that week.
[23] Excluding these weeks the evidence of the employer was that Mr Ponce worked in every week (defined for this purpose as Sunday to Saturday) from 3 February 2008 until 29 October 2009 except for the week beginning 25 January 2009. There was no evidence from either the Applicant or the Respondent about the reason why Mr Ponce did not work in the Australia Day week beginning 25 January 2009.
[24] Of the 84 weeks worked between February 2008 and October 2009 Mr Ponce worked predominately on night shift in 33 of those weeks. In those 33 weeks he worked an average of 4.67 days per week. This was exclusively on the night shift except on two occasions as follows: in the week beginning 12 October 2008, he worked night shift from Sunday to Tuesday inclusive and then day shift on the Thursday, and in the week beginning 23 August 2009 he worked night shift from Sunday to Saturday inclusive except for a day shift on the Friday.
[25] Mr Ponce gave evidence that when he worked night shift it was generally from Sunday to Thursday. The evidence presented in the calendar produced by the respondent confirms that on the occasions Mr Ponce was allocated to night shift he worked at least Sunday to Thursday inclusive in 22 weeks. On a further 7 occasions he worked four of these days and on 3 further occasions he worked on three of these days. This is consistent with the evidence of Mr Ponce and Mr Buicke that the pattern was regular except for a cancellation due to inclement weather or another unforeseen event. On the final occasion he worked only one of these days.
[26] The start and finish times worked on night shift also followed a strong pattern. For example, between February and June 2008, there were 99 shifts worked and all except 4 of them started between 6.30 and 8pm and all except 6 finished between 3am and 7am, according to the records provided by the respondent. 6
[27] On the other 51 weeks Mr Ponce worked predominately on the day shift although there were occasional night shifts worked in some of these weeks. In 9 of those weeks he worked six days, in 11 he worked 5 days, in 12 he worked 4 days, in 11 he worked 3 days, in 7 he worked 2 days and in 3 weeks he worked one day. Over these 51 weeks he worked an average of just over 4 days per week.
[28] The start and finish times worked on the day shift followed a weaker pattern than those on the night shift. For example, between April and June 2009 there were 55 shifts worked, all except 7 of which started between 6.30am and 9am. The majority of those shifts finished between 3pm and 5.30pm but there were 17 shifts which finished earlier during that period.
[29] The number of hours worked per day was not consistent however the pattern is not that of an itinerant worker. The company prepared a summary of the shifts and hours worked each month. 7 It shows that when Mr Ponce was working on the night shift between February and June 2008 he worked 971.5 hours which is an average of more than 46 hours per week. Between July 2008 and August 2009 Mr Ponce worked mostly on the day shift. As discussed earlier he did not work full months in the period November to January. Excluding those months Mr Ponce worked 1605 hours in those 11 months which is an average of 34 hours per week. The average over all months worked excluding the November to January period was 38 hours per week. During November to January Mr Ponce worked fewer shifts but those he did work averaged 9.5 hours per shift.
[30] The actual hours worked are significantly longer than shown in the above analysis as Mr Ponce gave uncontested evidence that in fact work commenced 45 minutes prior to the times shown on the documents. This was because the times shown were the times charged to the client actually on the jobs and did not include the time at the depot prior to commencing a job. Furthermore, when a shift was shortened or cancelled, employees were paid a minimum of 4 hours but the documents showing times worked show the times charged to the client which are sometimes less than 4 hours. 8
The pattern and method of work allocation.
[31] Clearly Mr Ponce depended on his work at Daly’s and expected the work to continue. He gave evidence that “my job at Daly’s was the only job I had at the time during the time I worked for them”. 9 Mr Lyall gave evidence that Traffic Controllers were free to work for other companies and that some of the Traffic Controllers employed by Daly’s did this. However, there is no evidence to suggest that Mr Ponce worked for other companies. In fact, Mr Ponce gave evidence that he did not. Given the regularity and the extent of the work Mr Ponce had with Daly’s it would have been logistically difficult for Mr Ponce to find time to work for anyone else.
[32] The applicant went to considerable lengths to provide evidence that Mr Ponce knew when he was to come into to work and only received intermittent advice or instructions concerning this. The respondent went to similar lengths to provide evidence that Mr Ponce did not work unless he received specific instructions from the relevant managers Mr Carrick and Mr Bradley on each day or the day prior to each day when work was available.
[33] Despite the colour and movement on this issue there is not a lot of conflict in the actual evidence.
[34] There seems little doubt as to the accuracy of what Mr Carrick said in his witness statement:
“Throughout the majority of his employment I or Mark Bradley spoke to Mr Ponce on a daily basis regarding his availability to work, with the exception of night shift when I would speak to the night shift crew leader to confirm the crews availability and confirm the customer requirement and adjust crew numbers accordingly. I would speak to Mr Ponce at least weekly when he was on a night shift crew.” 10
[35] Mr Ponce gave evidence which I also accept, that when he was working on night shift which was generally major jobs he was:
“told at least a week before if the job would be continuing for the following weeks and when it would end. 11
When I was working on a major project, I did not call in to Daly’s office to see whether or not I would be working the next day. We normally had a good idea about how long the job would last. Because I knew I would be working Sunday through to Thursday I just turned up to work at the same time on each of these days. On occasions a shift would be cancelled, normally because of bad weather. I would usually be told about when a job would end or if a shift had been cancelled by my immediate supervisor. For most of the time this was Kevin Buicke.” 12
[36] The evidence shows that when he was working on the day shift he was generally advised each day by Mr Carrick or Mr Bradley if he was required for work the next day or not. He worked an average of 4 shifts per week.
[37] The evidence shows that when he was working night shift he was not advised on a daily basis by Mr Carrick or Mr Bradley of his need to work. This is confirmed by the evidence in cross examination of Mr Carrick and Mr Bradley. As shown earlier, his work pattern on night shift was rather consistent and Mr Ponce had a reasonable expectation that subject to the weather he would work from Sunday to Thursday.
[38] The evidence of Mr Ponce, Mr Buicke and Mr Carrick is that there was a crew and a crew team leader which tended to work together for particular clients and followed through on a job. This core crew of traffic controllers might be supplemented by additional labour when required. Mr Ponce and Mr Buicke gave evidence that they were part of a consistent core crew when they worked on the night shift. Mr Bradley confirmed in his evidence that clients asked for particular crew members and leaders. 13
[39] Mr Buicke gave evidence that if there was work Mr Ponce was asked to work and he expected that this would continue. 14 Mr Buicke said that he worked almost 100% with Mr Ponce when on the night shift.15 Mr Buicke gave evidence that not much night shift work was available during the first half of 2009,16 and the evidence shows Mr Ponce worked mostly on the day shift during that period.17
[40] It is clear Mr Ponce had a reasonable expectation of when he would be required to work when he was working on the night shift and did not receive instructions on a daily basis as to whether he was required or not from Mr Carrick or Mr Bradley. His immediate supervisor Mr Buicke would generally advise him if there was any alteration to the expectation due to inclement weather or other unexpected change to the clients’ schedule. The evidence of Mr Buicke, Mr Carrick and Mr Bradley all confirmed that Mr Buicke was the person who went out on the job with the client and assessed the requirements and who was often advised directly by the client if there was a variation in requirements. 18 Mr Carrick and Mr Bradley were ultimately responsible for the allocation of labour to jobs. Mr Buicke would be in contact with Mr Carrick or Mr Bradley at varying intervals but certainly at least once a week but usually more frequently. Mr Carrick or Mr Bradley would also speak directly to Mr Ponce but certainly not on a daily basis on night shift and sometimes only once a week.
[41] The only significant point of conflict in the evidence was about how often Mr Buicke would get direct instructions about the hiring of traffic controllers from Mr Carrick or Mr Bradley. Mr Carrick and Mr Bradley said that this was at least every second day 19 but Mr Buicke said that it was sometimes less frequent. However, nothing really turns on this point in my judgment.
[42] It seems very clear that jobs from clients were planned out and that generally it would be known how many traffic controllers would be required for those jobs and on what days. It is equally clear that on occasion client’s requirements did change due for example to delays in related work or to inclement weather.
[43] Mr Buicke and Mr Ponce gave evidence that the work, particularly on the night shift, was not as random and unpredictable as suggested by Mr Lyall, Mr Bradley and Mr Carrick. All witnesses accepted that the work was often programmed in advance. The location, days, times and crew requirements were planned out in conjunction with the clients. Mr Buicke said:
“The ultimate decision maker on these jobs is the client, is it not?---Yes.
And that could change on a daily basis with clients' requirements?---Well, it's all on a program.
You say on a program?---The only way it would change is if there was inclement weather we would be called off for that day and go to the same job the next day, but otherwise no it's going on.” 20
[44] The evidence of Mr Buicke is borne out by the fact that only a small proportion of the night shifts finished early on the document prepared by the respondent showing the hours Mr Ponce worked. 21
[45] Mr Bradley largely accepted this analysis of the nature of the variations in the work. 22
The expectation of ongoing employment had the dismissal event not occurred.
[46] Mr Buicke, who was a team leader of the traffic controllers who worked with Mr Ponce on a number of occasions and who was also a friend of Mr Ponce’s, gave evidence that he thought that Mr Ponce could expect continuing work in the same manner as he had been receiving it over the period since February 2008. Mr Ponce also gave evidence that he expected work to continue. There was no suggestion from Mr Buicke or from other witnesses that there was any issue with Mr Ponce’s general work performance or any change in the business that would give reason for Mr Ponce to believe that his work would not continue. There was no evidence of anything said to Mr Ponce that would undermine his confidence that he would continue to be offered work in the same manner as before. The only exception to this was that Mr Ponce gave evidence of an incident which he believes led to his dismissal. It was not appropriate for me to examine this evidence as it is much more appropriately tested in proceedings about whether the dismissal was unfair or not in the event that there is jurisdiction. The respondent properly reserved its position in respect to the evidence concerning the alleged incident for the future proceedings should jurisdiction be established.
Did Mr Ponce refuse work which was offered to him?
[47] Mr Ponce gave evidence that he never refused work that was offered to him between February 2008 and October 2009. He gave evidence that on one occasion he was offered a shift at late notice when he was in Ballarat and he advised that he was prepared to work but it would take him two hours to get there. He said that this day might have been Cox Plate Day but he wasn’t sure about this. 23 There is no suggestion that any work was offered to Mr Ponce during the weeks he did not work at all. Mr Bradley and Mr Carrick gave evidence that there were occasions on which Mr Ponce refused work however they could not recall any specific occasion except that Mr Carrick said that it did happen on Cox plate Day. The evidence was that no specific record was kept of when traffic controllers refused work that was offered to them. The evidence of the pattern of work in my view supports the applicant’s contention that there was a strong expectation that Mr Ponce would work when work was available.
The separation certificate.
[48] There was some conflicting evidence about what actually happened at the time the employment was ended. Mr Ponce received two separation certificates on November 18 2009. The evidence of Mr Ponce is that he objected to the first certificate which said that he was leaving to seek other employment on the grounds that it wasn’t the truth because the truth was he had been sacked. The evidence for the respondent from Mr Carrick was that Mr Ponce had asked for a new certificate because he said that he needed to feed his family which he took to mean that he needed a different reason on the certificate so that he could get social security support. However, in cross examination Mr Carrick confirmed that Mr Ponce had in fact also said that he wanted a new certificate because the earlier statement wasn’t telling the truth about the fact that he had been sacked. 24 Hence Mr Ponce’s version of these events is largely consistent with the evidence for the respondent. In any event the employer did issue another separation certificate, which they attest to the truth and accuracy of, saying that the separation was due to unsatisfactory performance. Not much hangs on this point in the present proceedings except that the evidence does support the contention that Mr Ponce had a reasonable expectation that his employment pattern would continue as it had been, had it not been for the incident which he says led to the termination of his employment.
Consideration.
Legislative change – short term casuals no longer generally excluded
[49] The legislative scheme of the Fair Work Act differs from that of the earlier legislation, the Workplace Relations Act 1996 (the WR Act) and the Industrial Relations Act 1998 (the IR Act) in its treatment of casual employees and unfair dismissal jurisdiction.
[50] The earlier legislation excluded from jurisdiction “a casual employee engaged for a short period, within the meaning of subsection (4)” together with those engaged for a specified period of time or for a specified task or on a contract of training at the conclusion of that contract (Section 638(1)(d) of the WR Act).
[51] Section 638(4)of the WR Act provided that:
“(4) For the purpose of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a) subject to subsection (5)—the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and
(b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.”
[52] The Fair Work Act 2009 as with the WR Act excludes from jurisdiction those engaged for a specified period of time, or a specified task or those on a contract of training at the conclusion of that contract. However, in the Fair Work Act 2009, casual employees engaged for a short period are no longer included in the list of general exclusions. The minimum employment period for regular and systematic casuals in the Fair Work Act is the same as for all other employees.
[53] The authorities which dealt with unfair dismissal jurisdiction and casual employees are often influenced by the fact that an object of earlier legislation, both the WR Act and the earlier IR Act, was to “assist in giving effect to the Termination of Employment Convention.” (Section 365 of the Workplace Relations Act 1996). The current provisions maintain some connection to the Convention through the overall object of the Act to “take into account Australia’s international labour obligations” (Section 3(a) of the Act). The ILO Convention allows national Governments to exclude those who were engaged on a casual basis for a short period of time.
[54] A Full Bench of the AIRC in Cetin and Ripon 25 recognised that the words “casual employee” have no settled meaning and that the true nature of the relationship depends on the facts of each case.26 A number of cases established that just because a worker was engaged as a casual and was a casual employee for the purposes of an award did not mean that the worker was a casual for the purposes of the unfair dismissal jurisdiction.27
[55] 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.”
[56] 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. The significance of this change is underlined by the fact that the Fair Work Act does retain the concept of long term casuals (in similar terms to the WR Act) for the purpose of a number of other rights. Section 4 of the Act defines long term casuals and retains the two essential tests found in the WR Act – a sequence of periods of employment of 12 months and a regular and systematic basis:
“long term casual employee: a national system employee of a national system employer is a long term casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.”
Legislative change – expectation of continuing employment
[57] The other significant change is that the WR Act required that for a casual to achieve jurisdiction:
“the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer (Section 638(4)(b)).”
[58] Whilst the 2009 Act requires that:
“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 (Section 384(2)(a)(ii)).”
[59] The focus on the reasonable expectation of continuing employment is not now about the expectation at the point of termination but about the expectation during the period of service that is to count towards achievement of the minimum employment period to achieve jurisdiction.
[60] The changes to the legislation outlined above do not render the previous authorities irrelevant as they do shed some light on when “the employment” can be said to have been on “a regular and systematic basis” and what is required for a “reasonable expectation of continuing employment by the employer on a regular and systematic basis.” However, some caution must be exercised given the significant change in the nature of the jurisdictional hurdles.
Periods of casual employment can count as a period of employment
[61] It is clear that a period of employment for the purposes of Sections 383 and 384 can include a period of genuine casual employment; that is a period of employment that is to some extent by its nature uncertain, informal and irregular. Otherwise Section 384(2) would have no work to do. The term “employment” as it is used in Sections 383 and 384 is clearly referring to the employment relationship not the technicalities of the employment contract. 28
[62] Under the Act (Section 123) casual employees are exempted from the National Employment Standards related to notice of termination and redundancy pay. It is customary to say that casuals are engaged on a daily or even an hourly basis.
[63] Awards, including Modern Awards, generally define casuals very broadly as follows: “A casual employee is one engaged and paid as such”. Some Modern Awards (for example the Manufacturing and Associated Industries and Occupations Award 2010 (MA000010)) provide for casual employees to convert to full or part-time employment under certain conditions. However this is not available to “an irregular casual employee” which is defined as one “who has been engaged to perform work on an occasional or non-systematic or irregular basis.” 29
[64] So it is clear that a period of continuous service for the purposes of Sections 22 and 383 and 384 of the Act can include a period of casual employment notwithstanding the fact that the employee may be engaged and re-engaged on a daily or even an hourly basis during that period of casual employment. The test is simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[65] The Fair Work Act 2009, unlike earlier legislation, provides that full-time, part-time and regular and systematic casual employees (but not those employees employed for specified period or task or at the end of a season or training contract) simply have to meet one test – a minimum employment period. Full-time, part-time and regular and systematic casual employees have in common that their employment is regular and systematic. Just as with casual conversion in awards and with eligibility for certain leave under the NES the clear intention is to exclude from jurisdiction only those employed on an itinerant, occasional, non-systematic, or irregular basis.
Regular and systematic employment
[66] 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, 30 or where the times and dates of work are quite irregular or are not rostered,31 or where there are breaks due to school holidays or other needs of the employee.32 In Summerton v Jabiru Golf,33 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.
[67] 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).
[68] Full-time, part-time and casual employees often work on varying days and at varying times. Awards provide wide flexibility in this respect and further flexibility is available through flexibility agreements and through collective agreements. Under many awards ordinary hours can be averaged over a week, a month or sometimes longer periods; ordinary hours under many awards can be worked on any day of the week, and daily hours for full-time workers can vary under many awards from 4 to 12 hours. The fact that an employee works more hours in one week or one month than another and the fact that an employee might have variable start and finish times is not conclusive evidence of irregular, occasional, or non-systematic employment or engagement.
[69] Mr Hull for the applicant drew my attention to Yaraka Holdings Pty Ltd v Giljevic. 34 The legislation which was the subject of this authority concerned whether the “engagement” had been on a “regular and systematic basis” or whether “the individual had a reasonable expectation of the engagement continuing on a regular and systematic basis”. This is distinguishable from the present case because in Section 384 of the Act both of these matters are required to be established. They are not alternatives as in this authority. However in the judgment Crispin P and Gray J state:
“it was common ground that the concept of employment on a regular and systematic basis had been drawn from provisions found in regulation under the Workplace Relations Act 1996…” 35
[70] The Judges further observed:
“it is the engagement which must be regular and systematic not the hours of work pursuant to such engagement. 36
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.” 37
[71] The Judges then find that:
“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.” 38
[72] In the same case in a separate judgement Madgwick J found:
“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. 39
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.” 40
[73] Mr McKeown for the respondent drew my attention to a decision of a Full Bench in P Fegan and HSU v M Jacka, T Seymour and P Stephenson .41 In that decision the Full Bench was examining whether or not to include 4 casual employees of the HSU in determining if the HSU employed more than 100 employees for the purposes of unfair dismissal jurisdiction under the WR Act. Casuals who were ‘not engaged on a regular and systematic basis for at least 12 months’ were excluded from the number under the WR Act. In that decision the Full Bench excluded one of those employees, a Mr J Halsham.
“In respect of the casual employee, Mr J. Halsham, a list of employees at the HSU Victoria No. 1 branch prepared by Ms Rita Wills, Office Manager of the branch, from the branch’s payroll records, shows that Mr Halsham first worked in the HSU Victoria No. 1 branch on 17 May 2004. In 2007, he was first engaged in early May 2007 and last worked at the HSU Victoria No. 1 branch in early October 2007. He did not work every week over that period. Nor did he work on the same days or for the same number of hours per week in the weeks that he did work. In 2008, he was first engaged towards the end of February 2008 and last worked at the HSU Victoria No. 1 branch towards the end of November 2008. He did not work every week over that period. Nor did he work on the same days or for the same number of hours per week in the weeks that he did work. He did not work at the HSU over the period from towards the end of November 2008 until late January 2009.
Given Mr Halsham’s employment record we find he was not a casual employee engaged by the HSU on a regular and systematic basis for at least 12 months and, therefore, not a casual employee capable to being included in the tally of employees of the HSU on 5 January 2009 for the purposes of ss.643(10)-(12) of the Act.” 42
[74] It is clear that Mr Halsham was rejected because of the combination of the length and irregularity of breaks in employment and the irregularity of the hours, days and weeks of his work with the HSU and the absence of other evidence to establish regular and systematic employment.
[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.
[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.
The six month minimum employment period
[79] There is one final matter concerning the legislation which needs to be considered and that is, does the entire period of casual employment have to meet the test in Section 384(2) or only a sufficient period to enable the six months minimum period to be achieved.
[80] There are a number of authorities for the proposition under the previous legislation that periods of differing types of employment could be aggregated to make up the qualifying period. This could include a mixture of casual and full-time or part-time engagement. 43 However, under the previous legislation the nature of the employment at the point of dismissal had to be looked at to determine if it the employee was a casual engaged for a short period or not.44
[81] The words in the Fair Work Act (section 384(2)(a))“a period of service as a casual employee does not count towards the employee’s period of employment unless…” suggest that some time might be included and some might not. Furthermore it suggests that periods of complying casual employment could be added to periods of full-time or part-time employment. Further, the six month minimum clearly must end with the dismissal or notice of dismissal but the wording suggests the possibility that the complying period of casual employment might be earlier so long as the period of continuous service extends up to the point of dismissal or notice of dismissal.
Conclusions.
[82] I find that Mr Ponce was employed continuously between 3 February 2008 and at least 29 October 2009 for the purpose of Section 384(1) of the Act. The evidence supports this period being regarded as a period of continuous service. For the reasons set out earlier a period of genuine casual employment can be regarded as a period of continuous service for the purpose of this Section of the Act.
[83] I find that Mr Ponce was a casual employee during this period and therefore it is only that part of the period of service as a casual employee which meets the two tests set out in Section 384(2) which can be counted for the purpose of meeting the minimum employment period required to achieve jurisdiction.
[84] I find that these two tests are met either for the whole of this period or alternatively for at least six months of this period. That is for the whole of the period and for at least six months of the period the employment was on a regular and systematic basis and Mr Ponce had a reasonable expectation of continuing employment on this basis
[85] The evidence supports a conclusion that the employment as a casual employee was on a regular and systematic basis. This is because:
[86] I find that there was a clear pattern of work being offered with reasonable frequency and of the work being generally accepted. I find that work was being offered generally when it was available and that periods when work was less intense were generally when work was not available. I find that the employer had a reasonable expectation that Mr Ponce would work when work was offered. The pattern of offer and acceptance could not be described as informal, irregular or occasional. This is sufficient to find that the period of casual employment was on a regular and systematic basis.
[87] I find that it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis. Notwithstanding, I find that in the circumstances of this case the evidence is that there was some regularity and system to the shifts and start and finish times worked. I find that this regularity and system was stronger during the period when Mr Ponce worked on the night shift than when he worked on the day shift. Given that approximately half the hours worked by Mr Ponce were on the night shift I find that this regularity of start and finish times and days when work was offered on the night shift was in itself sufficient to establish that the employment was on a regular and systematic basis.
[88] I find that during the period of employment there was a reasonable expectation of ongoing employment having the same pattern as previous employment and this was the case up until the event or events that led to the ending of the employment relationship. The evidence for this is that it was Mr Ponce’s expectation, it was also the evidence of the team leader Mr Buicke, and there was no evidence produced to the contrary by the respondent. The employment with Daly’s Traffic was the only job Mr Ponce had throughout the 21 month period and he was dependent on his income from work with Daly’s Traffic. Mr Ponce would have looked for other employment had he not had a reasonable expectation of regular and systematic work at Daly’s Traffic.
[89] I also find that the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment. The fact that work was offered almost every week and on average 4 days work on day shift and close to 5 days work on night shift over the whole period would produce such a reasonable expectation. The fact that the total hours worked exceeds the ordinary hours for a full-time employee is also evidence for a reasonable expectation of ongoing employment being built over time. It also supports the contention that the weeks when Mr Ponce was not working or available to work were not sufficient to detract from such a reasonable expectation given that those times off were not significantly more time off than the entitlements of a full-time employee and occurred in circumstances where a full-time employee would also have been allowed time off.
[90] The weeks when Mr Ponce was not offered work were the weeks he requested to have off work due to his marriage and the weeks around Christmas when he did not expect there was sufficient work. The reason for not working in the week of December 14 2008 is the subject of conflicting evidence and the only week which is not explained is the week of Australia Day 2009 and even if there is no rational explanation as to why work was not offered and or accepted in those two weeks this is not sufficient to change reasonable expectations.
[91] The fact that on occasion work was cancelled, or shortened or not offered does not detract from this finding. Mr Ponce knew he was engaged as a casual and that the client demands did change on some occasions due to inclement weather or other factors. However, what is clear is that Mr Ponce was regularly offered work when it was available and he came to expect that.
[92] The fact that Mr Ponce did not receive instructions every day as to whether to come to work but on some occasions knew that he would have work due to the fact that he was part of a crew which would work together with the team leader to complete a job for a client also added to this expectation. The evidence is conflicting about how many days might go by without direct instructions about work the next day but there is clear evidence that this did happen to some extent.
[93] I find that Mr Ponce’s employment was regular and systematic and that he had a reasonable expectation of ongoing employment throughout the period from 3 February 2008 until at least 29 October 2009.
[94] I also found that the minimum employment period which satisfies the two tests can be more simply established if one considers the period of work of Mr Ponce on the night shift alone. Between 3 February 2008 and 26 June 2008 and then again between 23 August 2009 and 15 October 2009 Mr Ponce worked a total of 29 weeks and on each of those weeks he was clearly expected to work between at least Sunday and Thursday and he did so save for the fact that there were a few shifts cancelled during that time due to the requirements of the client (e.g. due to inclement weather). Start and finish times were also reasonably regular and systematic. There is also strong evidence that he worked as part of a crew led by Mr Buicke during that period and did not have to be offered work on every day but instead expected to and attended for duty. However, it is not essential for the concept that the qualifying period can be made up in this way to be accepted for Mr Ponce to establish jurisdiction given the findings I have already made concerning the whole period of his employment.
[95] The two tests having been met the period of service as a casual employee should count towards the minimum employment period. If the tests are met then in my view the period of service must be discounted by any breaks in service that meet the definition of breaks which do not break continuity of service as set out in Section 22 of the Act. It is possible that the periods of no work in November for his marriage and in December due to lack of work might constitute such breaks in service but given the length of service exclusive of these periods is much greater than 6 months it is not necessary to determine this matter.
[96] I find that Mr Ponce is an employee who has completed a period of employment with his employer of at least the minimum 6 month period as required by Section 382 of the Act.
[97] The jurisdictional objection of DT Staff Management Services Pty Ltd trading as Daly’s Traffic is dismissed. Mr Ponce’s s.394 application will be further dealt with by FWA.
COMMISSIONER
Appearances:
Peter Hull for the Applicant
Gerard McKeown for the Respondent
Dominic Tesoriero for the Respondent
Hearing details:
2010
Melbourne
March 5
1 Exhibit DT2.
2 PN262 and Exhibit P6.
3 PN216 to PN217.
4 PN324.
5 PN218 to PN220.
6 Exhibit P6.
7 Attachment to DT1 Statement of Mr Lyall.
8 PN460 to PN461 and PN469 to PN474.
9 Exhibit P5 at para 10, Witness Statement of Mr Ponce.
10 Exhibit DT3 at para 5, Witness Statement of Mr Carrick.
11 Exhibit P5 at para 7.
12 Ibid at para 8.
13 PN210.
14 PN566.
15 PN574, PN594 and PN598.
16 PN609 to PN610.
17 Exhibit P6.
18 PN191.
19 PN647 and PN678.
20 PN589 to PN591.
21 Exhibit P6 and paragraph 26 of this Decision.
22 PN665.
23 PN4666 and PN519 to PN521.
24 PN347 and PN525.
25 Y.S.B Cetin v Ripon Pty Ltd t/as Parkview Hotel, PR938639, 25 September 2003.
26 Ibid at para 57.
27 See Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; Shanahan v Scott (1957) 96 CLR 245; Konrad v Victoria Police (1999) 91 FCR 95; Arends v Department of Defence, PR935265, 28 July 2003 per Munro J, O'Callaghan SDP and Deegan C; Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551 per Starke J, 555 per Dixon J and 565 per McTiernan J; Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473 per Gray J; and Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 at 389.
28 Visscher v The Honourable President Justice Guidice [2009] HCA 34..
29 Manufacturing and Associated Industries and Occupations Award 2010 (MA000010), clause 14.4(k).
30 Stokes v Westernport Cool Stores Pty Ltd 1998 44 AILR 3-921 and Grey v Ardmona Foods [Print T0994].
31 See Heggie v Minda Incorporated [2006] SAIRComm 9 and Summerton v Jabiru Golf Inc AIRC PR904938, 6 June 2001, per Duncan SDP.
32 See Willems v Susan Gunn t/a Eureka Coaches, PR909967, 3 October 2001.
34 Yaraka Holdings Pty Ltd v Giljevic (2006) ACTCA 6 per Crispin P, Gray and Madgwick JJ.
35 Ibid at para 64.
36 Ibid at para 65.
37 Ibid at para 67.
38 Ibid at para 69.
39 Ibid at para 89.
40 Ibid at para 91.
41 P Fegan and HSU v M Jacka, T Seymour and P Stephenson 2009 AIRC FB 646.
42 Ibid at para 46 and 47.
43 Bourke v Brown Gouge Rosebud and Brond v ADI Ltd (2000) 103 IR 22 and Smith v Peninsula Health, PR910992, 7 November 2001.
44 Hamzy v Tricon International Restaurants t/as KFC (2001) 115 FCR 78.
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