Natalie Klukowski

[2023] FWC 3077

[2023] FWC 3077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.66M - Application to deal with a dispute about the right to request casual conversion

Natalie Klukowski

(C2023/6774)

DEPUTY PRESIDENT BELL MELBOURNE, 4 DECEMBER 2023

Application to deal with a dispute about the right to request casual conversion.

1. Ms Klukowski has made an application under s 66M of the Fair Work Act 2009 (Cth) (Act) to deal with a dispute between Ms Klukowski and her current employer regarding her request to convert from casual employment to permanent part-time employment.

1. The issue that this decision addresses is the fact that there was a change in Ms Klukowski’s employer, which was effected in August 2023, and whether the time worked with her previous employer counts towards the 12 month period required by s 66F(1)(a) of the Act.

1. There was no dispute that the identity of the employing entity changed in August 2023 from Ms Klukowski’s previous employer to her current employer – the old and new employers were not associated entities and nor was the change effected by a share sale agreement. According to the employer, which was not disputed, that change arose by a business sale agreement. There was also no apparent dispute that the employer was a small business employer.

1. Section 66M is located within Division 4A of Part 2-2 of the Act. Subdivision B deals with circumstances where an employer must make an “offer” to an employee for casual conversion. Subdivision B does not apply to small business employers, such as the respondent, although nothing turns on this.

1. Regardless of whether an employer is a small business employer, all employees have a right under s 66F to make a “request” for casual conversion. Ms Klukowski has sought to make such a request.

1. A request can be refused if, after consultation, there are “reasonable business grounds” to refuse the request, with the reasonable business grounds being based on facts that are known or reasonably foreseeable at the time of refusing the request: s 66H(1). This decision does not address these matters.

1. Section 66F places a limit on when an employee might make a request for casual conversion. Section 66F(1) is as follows (underlining added):

“66F Employee requests

(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).”

1. For the reasons that follow, I consider that Ms Klukowski is required to have been employed for a period of at least 12 months with her current employer, beginning on the day her employment started.

1. Primarily, s 66F(1)(a) states that a person must have been employed “by the employer” for a period of 12 months. This can only be a reference to the current employer. Perhaps in anticipation of this issue, Ms Klukowski relied upon various published statements concerning when a business changes hands.[1] The information Ms Klukowski relied upon concerned the provisions in s 22 of the Act which deal with “service” and “continuous service”.

1. The Act quite carefully defines when “service” or “continuous service” is to be taken into account by an employer. For example, the general rule regarding an employee’s entitlement to parental leave is that the employee must have completed “at least 12 months of continuous service” with the employer: s 67(1). Similarly, the minimum “period of employment” for the purpose of an unfair dismissal claim is “the period of continuous service the employee has completed with the employer”: s 384(1).

1. By contrast, s 66F refers simply to being employed by the employer “for a period of at least 12 months beginning on the day the employment started”. That period is not extended to a period with an earlier employer by reference to any “service”, “continuous service” or “period of employment” (noting the latter is defined in s 12 by reference to s 384). While the notion of continuous service for a casual employee challenges the ordinary notion of contractual arrangements, the Act has made provision elsewhere for the circumstances of casual employees when assessing what periods count for service or continuous service: see again, by way of example, s 67(1A) for parental leave and s 384(2)(a) for unfair dismissal.

1. The concept of a “period of employment” and “continuous service”, as used in s 384 of the Act, have been present in the Act since it commenced. The inclusion of s 67(1A), which defines when particular work by a casual employee is “taken to be continuous service” for the purpose of the parental leave rule referred to above was introduced at the same time that Division 4A of Part 2-2 was introduced into the Act for casual conversion requests. It is inconceivable that the drafters were unaware of the differences in language used in s 66F(1)(a) to other parts of the Act.

1. If s 66F(1)(a) referred to being “employed by the employer for a period of service of at least 12 months”, then I consider that the casual conversion obligation would apply to an employer taking into account, as appropriate, service with a previous employer (subject, of course, to satisfaction of service or continuous service, as might be applicable if those terms were used). But the Act does not use this language, although I acknowledge it is unsurprising that Ms Klukowski might have thought otherwise.

1. It follows that, for a casual conversion request under s 66F, the requirement that an employee has been employed by the employer for a period of at least 12 months beginning the day the employment started is a reference to employment with the same employer, without reference to service with a prior employee counting to that 12 month period.

1. As it is otherwise not in dispute that Ms Klukowski has not worked for her new employer for 12 months, the Commission does not have jurisdiction to deal with her dispute. Her application is therefore dismissed.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

[1] by authority of the Commonwealth Government Printer

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