Henry Armour v Mader Contracting Pty Ltd
[2022] FWC 2752
•14 OCTOBER 2022
| [2022] FWC 2752 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Henry Armour
v
Mader Contracting Pty Ltd
(U2022/5218)
| COMMISSIONER SCHNEIDER | PERTH, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy
On 9 May 2022, Mr Henry Armour (the Applicant) lodged an application for an unfair dismissal remedy against Mader Contracting Pty Ltd (the Respondent). The application was lodged in the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent objects to the application on the basis that the Applicant was employed on a casual basis, was not a regular casual employee and therefore the Applicant’s employment did not meet the minimum employment period.
Section 396 of the Act requires that certain matters be determined before the merits of an application. In this matter, the Commission must first determine if the Applicant has served the minimum employment period pursuant to section 383 of the Act. This decision concerns that preliminary issue.
Background
The Applicant was a casual employee of the Respondent. He commenced his casual engagement with the Respondent on 5 August 2019 as a Heavy Diesel Mechanic.
The Applicant was engaged by the Respondent to perform his duties at several different client sites and locations. From his commencement in August 2019 until 9 March 2020, the Applicant worked across multiple client sites on various shutdowns for different clients of the Respondent including Rio Tinto, BHP, FMG, and Citic Pacific.
The Applicant then worked for the Respondent at the Tanami mine site, from May 2020 until his employment was terminated on 19 April 2022.
Legislative framework
The relevant statutory provisions are sections 382, 383, and 384 of the Act. Those provisions, in part, read:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and …”
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
“384 Period of employment
(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 as a regular casual employee; 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; …”
Section 22 of the Act provides the definitions of ‘service’ and ‘continuous service’:
“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 22 (which deals with community service leave); or
(ii) a period of stand down under Part 35, 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;
(c) any other period of a kind prescribed by the regulations.
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.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly. …”
Case Law Framework
The Court in Yaraka Holdings Pty Ltd v Giljevic (Yaraka)[1] provided clarification on the construction of the regular and systematic test. The Court highlighted that it is the engagement in question that must be the subject of scrutiny:
“It should be noted that it is the "engagement" that must be regular and systematic; not the hours worked pursuant to such engagement.” [2]
The Full Bench of the Commission has reinforced this construction of the test in a subsequent decision.[3] The Full Bench stressed that a pattern of hours worked is only one consideration in determining whether the engagement itself is regular and systematic.[4]
Regarding the meaning of regular and systematic, the Court in Yaraka explained:
“The term "regular" should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for "frequent" or "often". However, equally, it is not used in the section as a synonym for words such as "uniform" or "constant".” [5]
“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 …” [6]
The Court in Yaraka provided the following regarding shift pattern and predictability:
“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.” [7]
The Court in Yaraka found the engagement in question, in that matter, was regular and systematic. The Court provided the major considerations for its determination:
“In my view there was such a basis apparent here. The system, method or plan involved:
(a) a shared understanding that a substantial part of the respondent’s time was and would be devoted to work for the appellant;
(b) the respondent preferentially making himself available to the appellant whenever possible;
(c) expected and acknowledged loyalty and commitment by the respondent to the appellant’s interests and ventures (the bonus payments are significant here);
(d) that the respondent would personally perform the work desired by the appellant rather than delegate it – such an inference, as indicated above, appears overwhelming;
(e) a shared understanding that the appellant would, in return, furnish the respondent with a substantial amount of work;
(f) an unusually high degree of mutual personal regard, trust and confidence between the parties (frequently deferred payment for services; ability to pledge the appellant’s credit); and
(g) stability of those features over a long period.”[8]
The Commission has relied on the Court’s construction of regular and systematic in Yaraka in several subsequent decisions. In Ponce v DJT Staff Management Services Pty Ltd (Ponce), the Commission expanded on the assessment of whether an employee is regular and systematic and provided the following considerations:
“ • The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.”[9]
Regarding the reasonable expectation of continuing employment, Jackson J in Bronze Hospitality Pty Ltd v Hansson (No 2) (Bronze) noted the following in relation to forming an expectation:
“If the employee's expectation was based, not on anything the employer said, but solely on her own observation of the regularity of her work shifts, it would be wrong to look back and say that, as it turned out, there was a reasonable expectation from the very beginning. An expectation could not be reasonable until the time at which the pattern necessary to make it so has emerged.”[10]
In relation to the reasonableness of an expectation, Jackson J stated:
“If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable.” [11]
Submissions
Respondent
On 3 August 2022, the Respondent filed submissions and evidence in support of the objection. The Respondent submitted that the Applicant had not met the requirements of section 384(2) of the Act for the following reasons.
The Applicant was engaged on a casual basis. The Applicant, as a casual employee, was provided with flexible working arrangements and the Applicant had the ability to accept or decline rosters put forward by the Respondent depending on the Applicant’s personal circumstances and preferences.
The Respondent submitted that, under these arrangements, the Applicant was able to take different periods of leave between rosters and could request to work different rosters, at different sites and for different clients and could take leave as he wished.
The Respondent provided the below table which highlighted the periods of unpaid leave the Applicant had during his employment with the Respondent:
Date from Date To Days 1 14/11/2019 12/12/2019 28 2 24/12/2019 12/01/2020 19 3 10/03/2020 25/03/2020 15 4 26/03/2020 27/04/2020 32 5 27/06/2020 30/06/2020 4 6 14/07/2020 20/07/2020 7 7 19/12/2020 11/01/2021 23 8 30/01/2021 02/02/2021 4 9 28/12/2021 04/01/2022 8
The Respondent submitted that each time the Applicant returned from leave, the Respondent would offer a new roster which would commence on mutual agreement between the parties.
The Respondent submitted that the Applicant worked at various sites which had different rosters and operational requirements. It was the position of the Respondent that the Applicant’s decision to have periods of extended leave and varying the roster meant the Applicant was not a regular and systematic casual employee.
The Respondent submitted that whilst the Applicant worked an extended period of an 8 days on 6 days off roster (8/6 roster), at no time did this roster period continue for greater than 6 consecutive months. The Respondent submitted that as the Applicant had periods of extended unpaid leave or roster changes during this period, this reset the minimum employment period.
The Respondent submitted that, as the Applicant had unpaid leave from 28 December 2021 until 4 January 2022, the Applicant had rejected his regular and systematic pattern of work and effectively discontinued any previous work pattern.
The Respondent submitted that the Applicant should not have had any expectation of ongoing employment. The Respondent explained that its contracts with clients are subject to termination agreements from clients on short notice and that the Respondent does not provide any guaranteed supply of employees to clients.
The Respondent also outlined that clause 4.1(a) of the Applicant’s employment contract states the below and that as a result the Applicant was aware and had agreed there was no guarantee of ongoing employment with the Respondent:
“The Employee will be employed on a casual basis. The Employee agrees that there is no guarantee of ongoing employment with the Employer”.
Applicant
On 15 August, the Applicant’s Representative filed submissions in response to the minimum employment period issue. The Applicant submitted that he had met the minimum employment period for the following reasons.
The Applicant was engaged by the Respondent for over two and a half years.
The Applicant submitted that the Respondent had set rosters and changed the rosters to suit the operational requirements of the Respondent’s clients.
The Applicant worked a regular and systematic roster whilst engaged by the Respondent and at times took unpaid personal leave as he was entitled to.
The Applicant did not agree with the Respondent’s assertion that the “clock restarted” when the Applicant had a period of unpaid leave. The Applicant also explained that, most of the time, his rosters were known and agreed to in advance and were predictable based on the client needs.
The Applicant highlighted clause 5.1(b) of the contract of employment which stated:
“The Employer will set the Employee’s hours of work and location of work via a roster”
On 14 July 2020, Mr Warren Moss (Mr Moss), Coordinator Mader North, sent an email to the employees of the Respondent working at the client site, Tanami, the email stated the below:
“I am aware that there been pressure put on the majority of you to sign over, and that statements have been about Mader’s future at Tanami.
As a contract company we are very familiar with this current situation, and well aware of the tactics that may be used to entice people to sign over.
I can guarantee that Mader’s future at Tanami is secure, and we have a contract in place until 2022 with a 2 year continuation after that.
In regards to staff numbers on site, I understand that Newmont have stated some positions will be filled by permanents, I am still receiving requests from the planning department for extra guys for the PCR Program and project works, so at this stage there is no need for concern and it is business as usual.
We also have other opportunities in the NT, and are focusing building our numbers in that region”. (emphasis added)
The Applicant also cited the Commission’s decision in Ponce v DJT Staff Management Services Pty Ltd:
“the employer regularly offers work when there is suitable work available at times when the employer knows that the employee has generally made themselves available; and Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular”.[12]
The Applicant submitted that he had worked for the Respondent at the Tanami (Newmont) site on a regular and systematic basis from May 2020 until his termination. During this period, the Applicant could receive flight bookings up to 2 months in advance which the Applicant submits further supports his case of having a reasonable expectation of ongoing employment.
Consideration
Section 384(2)(a)(i) – Regular and Systematic Casual
The Applicant commenced working with the Respondent in August 2019. In May 2020, the Applicant completed his first roster for the Respondent at the Tanami mine site. The Applicant continued to work for the Respondent at the Tanami site until his termination on 19 April 2022.
The Respondent noted that the Applicant “often worked an 8/6 roster…but worked different rosters and took irregular (and often significant) periods of leave”. Based on the evidence provided, I do not disagree with this submission. However, I do not agree with the Respondent’s position that this meant the Applicant was not a regular and systematic casual employee.
I agree with the Applicant’s submission, with reference to Ponce,[13] that the Respondent generally set the requirements of the roster based on the requirements of the client and the Applicant regularly and systematically accepted enough work that it could no longer be regarded as irregular or occasional.
I am not satisfied that the Applicant working on different rosters (i.e. different to 8/6 rosters) or taking periods of unpaid leave meant that this “reset the clock” on his employment each time, as was submitted by the Respondent.
I do not agree with the Respondent’s position that the Applicant is required to work over 6 months of the exact same roster pattern for the employment relationship to be regular and systematic. Such a submission is not consistent with the decisions of the Commission in these matters.
Section 384(2)(b)(ii) – Reasonable Expectation of Continuing Employment
The Applicant was engaged under a labour hire arrangement by the Respondent. From the period of May 2020 until his termination on 19 April 2022, the Applicant had worked only for the Respondent at one site, that site being the Tanami site.
During this time, the Applicant had periods of extended unpaid leave. Despite the Applicant taking these additional periods of unpaid leave, the Respondent continued to engage the Applicant for work at the same client site. The repetitive nature and pattern of engagement weighs in favour of the Applicant having a reasonable expectation of continuing employment.
Mr Moss confirmed to a wider pool of employees engaged by the Respondent at the Tanami site that the business had a contract until 2022 with a 2-year continuation.
The Respondent’s client was seeking to engage the Respondent’s labour hire employees as direct hire employees. This practice is not uncommon in the mining and resources sector. The email sent by the Respondent was done so in order to provide clarity and certainty around the Respondent’s continued relationship with Newmont. The email implied that employees, like the Applicant, who did not sign over to work for Newmont would still have the ability to work for the Respondent at the Tanami site.
The Respondent also stated the below:
“We also have other opportunities in the NT, and are focusing building our numbers in that region”
The communication was not directed solely at the Applicant. However, I do believe that the above would have enforced the Applicant’s expectation of ongoing engagement. It is reasonable for the Applicant to expect that, even if there was no longer work available at the Tanami site, there would be other opportunities with the Respondent’s business.
I do not accept that this on its own would have created a reasonable expectation of continuing employment. I also note the tenure of the Applicant’s engagement with the Respondent and that the engagement occurred at the one site. In consideration of all the circumstances, I find the Applicant held a reasonable belief of ongoing engagement on a regular and systematic basis.
I note the wording of clause 4.1(a) in the Applicant’s contract of employment as outlined below:
“The Employee will be employed on a casual basis. The Employee agrees that there is no guarantee of ongoing employment with the Employer”.
I do not find that the above clause, in the context of this matter, excludes a finding of a reasonable expectation of ongoing engagement on a regular systematic basis. The nature of the Applicant’s engagement, coupled with the Respondent’s ongoing reliance on the Applicant, supports the finding that the Applicant held a reasonable expectation of ongoing engagement as specified in the Act.
Conclusion
Based on the evidence submitted, I am satisfied that the Applicant met the requirements of sections 384(2)(a)(i) and 384(2)(a)(ii) of the Act. The Applicant’s engagement was on a regular and systematic basis, the Applicant held an expectation of continuing employment on that basis, and that expectation was reasonable.
Accordingly, the Applicant’s period of service as a casual employee satisfies the minimum employment period under the Act. The Applicant is therefore a person protected from unfair dismissal. The jurisdictional issue is dismissed. The matter will now progress to a hearing on the merits of the application.
COMMISSIONER
Appearances:
R Cummins of CFMEU, for the Applicant.
J Pearse, Respondent.
Hearing details:
2022.
Perth (by video):
August 22.
[1] (2006) 149 IR 339 (‘Yaraka’).
[2] Ibid, at [65].
[3] [2020] FWCFB 306, at [11].
[4] Ibid, at [14].
[5] Yaraka (n 1), at [68].
[6] Ibid, at [91].
[7] Ibid, at [69].
[8] Ibid, at [92].
[9] [2010] FWA 2078, at [76] (‘Ponce’).
[10] (2019) 290 IR 344, at [39].
[11] Ibid, at [40].
[12] Ponce (n 9), at [76].
[13] Ibid.
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