Drakoulis v Melbourne Polytechnic
[2024] FedCFamC2G 551
•20 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Drakoulis v Melbourne Polytechnic [2024] FedCFamC2G 551
File number(s): MLG 1109 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 20 June 2024 Catchwords: INDUSTRIAL LAW – FAIR WORK – casual conversion under the Fair Work Act 2009 (Cth) – where the respondent claims it was not obliged to make an offer of conversion under section 66B – consideration of whether the applicant worked a ‘regular pattern of hours’ under section 66F – finding that the applicant did not qualify for casual conversion under section 66F – finding that the applicant did not work a ‘regular pattern of hours’ under section 66F – finding that the respondent was not obliged to make an offer of conversion – application dismissed. Legislation: Fair Work Act 2009 (Cth), ss 66A, 66B, 66C, 66F, 66G, 66H Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 12 April 2024 Date of hearing: 12 April 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Ryan Solicitor for the Respondent: Piper Alderman ORDERS
MLG 1109 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DESPINA DRAKOULIS
Applicant
AND: MELBOURNE POLYTECHNIC
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
20 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
The applicant has initiated a claim in the court’s small claims jurisdiction, by which she seeks orders relating to the respondent’s alleged failure to offer her conversion from her casual employment to ongoing part time employment. The respondent was granted leave to be legally represented.[1]
[1] Orders of Registrar Edwards dated 11 July 2023.
The applicant claims that the respondent failed to comply with its obligations under Division 4A of Part 2-2 of the Fair Work Act 2009 (Cth) (‘the FW Act’) by failing to offer her conversion from casual employment to ongoing part-time employment.[2]
[2] Form 5A dated 19 June 2023.
The respondent denies that claim and asserts that the obligation to offer conversion from casual employment to ongoing part-time employment did not arise.[3]
[3] Response filed 20 July 2023.
It is common ground that the applicant also exercised her residual right to seek conversion and that request was not granted.[4]
[4] Form 5A dated 19 June 2023; Respondent’s Outline of Submissions filed on 4 April 2024.
The issues which arise for determination in this matter are:
(1)whether the respondent was required to offer to convert the applicant’s employment from casual to ongoing part-time employment under section 66B and if so, what flows from its failure to do so? and
(2)what, if anything flows from the employer’s failure to grant the applicant’s residual request for conversion under section 66F of the FW Act?
For the following reasons, I find that the applicant did not qualify for casual conversion. As such, I find that the respondent was not required to make an offer of conversion, and the applicant did not qualify under section 66F of the FW Act to make a valid residual request for casual conversion under section 66F.
FACTUAL BACKGROUND
The facts in this matter are not largely in dispute.
The respondent offers a range of post-secondary and tertiary qualifications at its campuses both in Victoria and in China.[5] The respondent also offers courses online.
[5] Affidavit of Rohit Gupta affirmed and filed on 4 April 2023, paragraph 4.
Relevant for present purposes, the applicant was engaged to deliver ‘TAE40116 Certificate IV’ in Training and Assessment.[6] This course was offered both at the respondent’s Preston and Epping campus as well as online.[7] The relevant online courses take place in the evening whereas the relevant courses delivered on campus were at the relevant time, delivered during the day.
[6] Form 5A dated 19 June 2023.
[7] Affidavit of Rohit Gupta affirmed and filed on 4 April 2023, paragraph 6.
The number of courses offered at any particular time during the year depends on the number of students who enrol.[8]
[8] Affidavit of Rohit Gupta affirmed and filed on 4 April 2023, paragraph 16.
The applicant was engaged in April 2022 to deliver TAE40116 on a casual basis.[9]
[9] Form 5A dated 19 June 2023.
The applicant entered into a casual contract of employment initially dated 14 April 2022, and then a further casual contract in November 2022.[10]
[10] Form 5A dated 19 June 2023; Respondent’s Outline of Submissions filed on 4 April 2024.
Each contract provided that the applicant was engaged on a casual basis and that there was no guarantee of particular hours of work, rather, her actual hours of work would be determined by the applicant’s manager and would be based on the operational and program needs of the respondent.
The contracts of employment entered into by the applicant also provided for the applicant’s rate of pay. In particular, the contract provided that the ‘casual teaching duty hour rate is inclusive of preparation, planning, curriculum development and assessment’. [11]
[11] Form 5A dated 19 June 2023.
It is also common ground that when the applicant commenced employment, the respondent was delivering most programs online in response to the restrictions then still in place as a result of the COVID-19 pandemic.[12] The respondent was in the process of moving those classes which had previously been delivered on campus, back to on campus delivery, towards the end of 2022.
[12] See Affidavit of Rohit Gupta affirmed and filed on 4 April 2023, paragraph 11.
It is also common ground that shortly after her appointment, the applicant raised an issue about payment for assessment work that had to be undertaken after the teaching term had concluded. It appears that initially some additional payment was made to the applicant in this regard, however, ultimately, the applicant was reminded that the teaching rate was inclusive of any time required for assessment and that she would not receive additional payment.
On 2 October 2022, the applicant emailed Mr Gupta in the following terms:[13]
Thanks for your email. Isn’t assessing considered to be ‘teaching duties’.
It is very difficult to complete all marking for the TAE course during the term as we are granting extensions for work to be handed in late and students need to resubmit, it is not possible to complete everything on time.
I would prefer to be paid at a contract/ongoing rate that covers all the weeks that I am actually working rather than at a higher casual rate that does not cover all weeks I have worked. Is this possible please as I am sure the same thing will keep happening.
[13] Exhibit A, ‘Applicant’s Response to the Respondent’s Response’, Attachment K.
On that same day, Mr Gupta replied as follows:[14]
The casual teaching rate includes Teaching and Assessing. You don’t get separate money to assess the students who you have already taught.
We could look at offering a contract however, that would be in 2023. It is dependent upon the budgets and if there is room in budget to take on new staff on contract or ongoing basis.
[14] Exhibit A, ‘Applicant’s Response to the Respondent’s Response’, Attachment K.
Shortly, thereafter, on 7 November 2022, the applicant emailed a Ms Angela Bertoncello, it seems on the face of the document about a payroll enquiry. In that email, the applicant said:[15]
I would also be interested in having my employment converted from casual to ongoing in accordance with the Agreement.
[15] Exhibit A, ‘Applicant’s Response to the Respondent’s Response’, Attachment K.
It is apparent from this correspondence, that the applicant therefore was keen to be considered for conversion to ongoing employment from as early as November 2022.
I understand the reference to ‘the Agreement’ in the applicant’s email of 7 November 2022 to be a reference to the industrial agreement applicable to the applicant’s employment. The applicant, in her application in these proceedings has indicated that her employment was regulated by the Victorian TAFE Teaching Staff Agreement 2018 (‘the Agreement’). I note in passing that that the Agreement also contains a casual conversion clause, although as this claim is brought under Division 4A of Part 2.2 of the FW Act, it is not necessary to consider the casual conversion obligations under the Agreement. I do note however, that there are some differences between how casual conversion is dealt with in the agreement and under the FW Act.
Relevant for present purposes the Agreement provides for casual conversion where a ‘suitable ongoing position is available’. As stated, it is not necessary for me to consider whether the Agreement has been complied with, however, this difference in wording may explain some of the terminology used by the applicant and for the respondent when discussing the possibility of conversion from casual to ongoing employment. In particular, some of that exchange refers to compliance by the respondent with the Agreement and an assertion by the respondent that it was complying with the Agreement and that no ongoing position was available.
It is also common ground that the applicant taught three classes in 2022, a total of 12 hours per week and that from 31 March 2023 she was only allocated two classes, resulting in a reduction to her weekly hours by half.[16] That is from 31 March 2023, the applicant was only allocated six teaching hours per week.
[16] See Respondent’s Outline of Submissions filed on 4 April 2024 at paragraph 12; Exhibit A, ‘Applicant’s Response to the Respondent’s Response’.
The applicant led evidence that even though she has ceased teaching 6 hours of classes on 31 March 2023, she continued to be required to undertake assessment work associated with those classes after that date. I accept that notwithstanding that on 31 March 2023, the applicant ceased teaching the class that she had previously been teaching on a Friday for six hours, there may have been some residual marking to undertake after that date. The applicant has not, however, produced any evidence of what marking she did after 31 March 2023, nor for the reasons which follow, does this additional work alter the conclusions I have reached about the operation of section 66B and section 66F.
As assessment is work which is not separately remunerated (as it is part of the hourly rate for teaching duties), the time sheet records produced by the respondent do not specifically identify the time spent by the applicant on assessment and when this was undertaken.
It is also common ground that the applicant’s last day working for the respondent was 22 June 2023.[17]
[17] Form 5A dated 19 June 2023; Respondent’s Outline of Submissions filed on 4 April 2024.
Mr Rohit Gupta, the applicant’s manager, has given evidence that in the period between 14 June 2023 and 29 June 2023, he sent numerous emails to the applicant seeking that she complete assessments for students in the classes that she had delivered.[18] Mr Gupta says that the only response he received to the six messages he sent to the applicant during this period was one reply on 21 June 2023, in which the applicant said ‘I do not work Mondays’.
[18] Affidavit of Rohit Gupta affirmed and filed on 4 April 2023, Exhibit ‘RG-14’.
Ultimately, Mr Gupta has given evidence that on 21 June 2023, he allocated the applicant’s outstanding assessments to another two teachers to complete.
Mr Gupta has given evidence, which I accept, about the impact of a teacher’s failure to undertake assessments in a timely manner, both to the students concerned but also to the Institute.
Having regard to the totality of the evidence, I find that until 31 March 2023, the applicant delivered 12 hours of classes per week, during term time. Thereafter she delivered 6 hours of classes per week, during term time. In addition, I accept that the applicant undertook additional duties to prepare for and assess work produced by students, although it is not possible to make any findings about how much time was spent by the applicant in undertaking these duties.
LEGAL PRINCIPLES
This application is brought under Division 4A of Part 2-2 the FW Act. It is appropriate to set out the relevant provisions in full.
s 66A (1)This Division applies in relation to an employee who is a casual employee.
s 66A (2) A reference in this Division to full-time employment or part-time employment is taken not to include employment for a specified period of time, for a specified task or for the duration of a specified season.
…
s 66B (1)Subject to section 66C, an employer must make an offer to a casual employee under this section if:
(a)the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and
(b)during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or as a part-time employee (as the case may be).
s 66B (2) The offer must:
(a) be in writing; and
(b) be an offer for the employee to convert:
(i)for an employee that has worked the equivalent of full-time hours during the period referred to in paragraph (1)(b) – to full time employment; or
(ii)for an employee that has worked less than the equivalent of full-time hours during the period referred to in paragraph (1)(b) – to part-time employment that is consistent with the regular pattern of hours worked during that period; and
(iii)be given to the employee within the period of 21 days after the end of the 12 months period referred to in paragraph (1)(a).
s 66B (3)For the purposes of paragraph (2)(b), in determining whether an award/agreement free employee has worked the equivalent of full-time hours, regard may be had to the hours of work of any other full-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.
s 66C (1)Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:
(a) there are reasonable grounds not to make the offer; and
(b)the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.
s 66C (2)Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:
(a)the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
(b)the hours of work which the employee is required to perform will be significantly reduced in that period;
(c)there will be a significant change in either or both of the following in that period:
(i)the days on which the employee’s hours of work are required to be performed;
(ii) the times at which the employee’s hours of work are required to be performed;
which cannot be accommodated within the days or times the employee is available to work during that period;
(d)making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.
s 66C (3)An employer must give written notice to a casual employee in accordance with subsection (4) if:
(a)the employer decides under subsection (1) not to make an offer to the employee; or
(b)the employee has been employed by the employer for the 12 months period referred to in paragraph 66B(1)(a) but does not meet the requirement referred to in paragraph 66B(1)(b).
Note:If an employer fails to give notice to a casual employee, the employee has a residual right to request conversion to full-time or part-time employment in certain circumstances: see Subdivision C.
s66C (4) The notice must:
(a)advise the employee that the employer is not making an offer under section 66B; and
(b)include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and
(c)be given to the employee within 21 days after the end of the 12 month period referred to in paragraph 66B(1)(a).
Sections 66D and 66E then deal with employee responses to any such offers and what happens if the employee accepts such an offer. In this case the respondent conceded that no offer was made.
Subdivision C then deals with the employee’s residual right to request casual conversion. It contains the following provisions:
s 66F (1)A casual employee may make a request of an employer under this section if:
(a)the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; and
(b)the employee has, in the period of 6 months ending the day the request is given, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be); and
(c)all of the following apply:
(i) the employee has not, at any time during the period referred to in paragraph (b), refused an offer made to the employee under section 66B;
(ii) the employer has not, at any time during that period, given the employee a notice in accordance with paragraph 66C(3)(a) (which deals with notice of employer decisions not to make offers on reasonable grounds);
(iii)the employer has not, at any time during that period, given a response to the employee under section 66G refusing a previous request made under this section;
(iv) if the employer is not a small business employer – the request is not made during the period of 21 days after the period referred to in paragraph 66B(1)(a).
s66F(2) The request must:
(a) be in writing; and
(b) be a request for the employee to convert:
(i)for an employee that has worked the equivalent of full-time hours during the period referred to in paragraph (1)(b) – to full-time employment; or
(ii) for an employee that worked less than the equivalent of full-time hours during the period referred to in paragraph (1)(b) – to part-time employment that is consistent with the regular patter of hours worked during that period; and
(c) be given to the employer.
s66F(3)For the purposes of paragraph (1)(b), in determining whether an award/agreement free employee has worked the equivalent of full-time hours, regard may be had to the hours of work of any other full-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.
s66G The employer must give the employee a written response to the request within 21 days after the request is given to the employer, stating whether the employer grants or refuses the request.
s66H(1) The employer must not refuse the request unless:
(a) the employer has consulted the employee; and
(b) there are reasonable grounds to refuse the request; and
(c)the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of refusing the request.
s66H(2)Without limiting (1)(b), reasonable grounds for refusing the request include the following:
(a)it would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a full-time employee or part-time employee;
(b)the employee’s position will cease to exist in the period of 12 months after giving the request;
(c)the hours of work which the employee is required to perform will be significantly reduced in the period of 12 months after giving the request;
(d)there will be a significant change in either or both of the following in the period of 12 months after giving the request:
(i) the days on which the employee’s hours of work are required to be performed;
(ii) the times at which the employee’s hours of work are required to be performed;
which cannot be accommodated within the days or times the employee is available to work during that period;
(e)granting the request would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.
s66H(3)If the employer refuses the request, the written response under section 66G must include details of the reasons for the refusal.
Section 66G then deals with grants of requests.
Section 66M deals with disputes under Division 4A. Relevantly, it provides that it applies to a dispute between an employer and an employee about the operation of the Division, unless a procedure for dealing with the dispute is included, among other things, in a Fair Work instrument which applies to the employee.
CONSIDERATION AND FINDINGS
The applicant submits that she has met the requirements in section 66B, such that the employer was required to have made her an offer to convert or at the very least have provided her with reasons why it was not going to do so.
It is conceded by the respondent that it did not make any such offer.[19]
[19] Respondent’s Outline of Submissions filed on 4 April 2024.
The first issue for resolution therefore is whether the respondent was required to do so.
Was the respondent required to make the applicant an offer of casual conversion?
The applicant was employed for a period of more than 12 months. There was initially some dispute as to whether the applicant’s employment for the purposes of section 66B commenced in April 2022 (either on the date the contract was signed or on the date that work was first performed) or in May 2022, being the date on which the first class was delivered. Ultimately, I am satisfied that the employment commenced when work under the casual contract was first performed, namely on 20 April 2022.
By 20 April 2023, therefore, the applicant had been employed for a period of 12 months.
The second requirement of section 66B however, is that during the last six months of that period (namely of the 12-month period), the applicant had ‘worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).’
The term ‘regular pattern of hours on an ongoing basis’ is not defined. The parties were unable to point the court to any judicial consideration of this term.
The Explanatory Memorandum which accompanied the Bill introducing the casual conversion provisions states that whether a person is found to have worked a ‘regular pattern of hours’ will depend on the particular circumstances each case.[20] At paragraph [27] of Schedule 1, the Explanatory Memorandum states:
27.The term ‘regular pattern of hours’ is adopted from the FWC’s model casual conversion term. Whether an employee meets this requirement will depend on the particular circumstances and involves consideration of the pattern of hours worked during the relevant 6 month period. For example, if an employee has worked shifts of 8 hours each and every Monday and Tuesday for the most recent 9 months of their employment, it will be clear they have worked a regular pattern of hours for the requisite 6 months. Depending on the circumstances of any particular case, the employee may still have worked a regular pattern of hours even with some fluctuation or variation in specific times and days worked, including (for example) if the employee took time away from work when ill or on holiday.
[20] Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020.
It is clear from the Explanatory Memorandum, and noting that this is beneficial legislation, that in circumstances where an employee’s hours of work varied in a minor manner, for example by changing the days on which the work was performed, or where an employee did not work consistently because they had taken leave, that this would not take the employee outside of the concept of having worked a regular pattern of hours.
However, in this case, in the six months prior to her anniversary date, the applicant’s work hours changed significantly. The applicant ceased working one out of three days, and her overall hours of work were reduced by half. The applicant was initially working Tuesday and Thursday from 6pm to 9pm and Friday from 10am to 5pm. However, from 31 March 2023, her hours changed to Tuesday and Thursday from 6pm to 9pm only.
This is a significant variation to the applicant’s hours of work and therefore I find, the applicant did not work a ‘regular pattern of hours’ during the six months prior to 20 April 2023. That is, the applicant’s hours of work in the six month period prior to the anniversary of her start date does not represent a regular pattern of hours on an ongoing basis as contemplated by section 66B.
As a consequence, the respondent was not required to make an offer of casual conversion under section 66B of the FW Act.
What flows from the employer’s failure to grant the applicant’s request for conversion under section 66F of the FW Act?
As stated, the applicant made a request for casual conversion on 8 May 2023.
For similar reasons to those outlined above in relation to section 66B, the applicant was not entitled to make such an application under section 66F in circumstances where the applicant had not in the period of six months, ending on the day that the request was made, ‘worked a regular pattern of hours on an ongoing basis’. As stated, the pattern of hours the applicant had been working prior to 31 March 2023, was significantly altered on that date, such that it could not be said that in the period from November 2022 to May 2023, she was working a regular pattern of hours on an ongoing basis.
I note that section 66G requires that an employer must give a response to an employee’s request for conversion within 21 days of the request. In this case, the request was made on 8 May 2023. The respondent concedes that its written response was not provided until after the 21-day period from the date of that request, had lapsed.
In my view, the obligation in section 66G only arises where a request has been made which satisfies the preconditions in section 66F. That is where a request has been made in circumstances where, for example, the applicant has not completed 12-months continuous employment, or where, as here the applicant has not in the immediately preceding six months worked a regular pattern of hours on an ongoing basis, no obligation to respond arises.
For each of these reasons therefore, I find that the respondent was not required to make an offer of casual conversion in this case. Nor was it required to accept the applicant’s request for conversion.
For completeness, I note that the applicant alleged that the respondent could have offered her additional teaching hours after 31 March 2023, such that there would not have been a reduction in her teaching hours. The applicant led evidence about the fact that teaching duties were allocated to other casual staff which could have been allocated to her, and also that the respondent continued to advertise for casual staff, a further indication that it had ongoing work which could have been given to her in an ongoing role.
Mr Gupta gave evidence refuting this suggestion and explaining the reasoning he engaged in in allocating the teaching duties. I accept his evidence in this regard.
Having regard to the totality of the evidence, I am not satisfied that there is any evidence upon which to conclude that Mr Gupta specifically, or the respondent more generally, allocated teaching hours in such a way as to avoid its obligations under Division 4A of Part 2-2 of the FW Act. I accept that Mr Gupta allocated classes both in relation to the April and the June intake, on the basis that he first allocated classes to ongoing staff and then allocated the balance of classes to casual staff, having regard to their experience, availability and his assessment of their work performance.
I also note that the respondent put forward various alternative arguments. Having reached the conclusions set out earlier about the operation of section 66B and section 66F, it is not necessary for me to determine those matters.
CONCLUSION
For each of these reasons, I therefore dismiss the applicant’s application.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 20 June 2024
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