Peter Price v United Management Services Pty Ltd

[2013] FWC 4227

[2013] FWC 4227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Price
v
United Management Services Pty Ltd
(U2013/7159)

DEPUTY PRESIDENT BOOTH SYDNEY, 3 JULY 2013

Termination of employment - application for unfair dismissal remedy - casual employee - whether regular and systematic - calculation of period of employment - whether met minimum employment period

[1] On 4 March 2013 Mr Peter Price (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect to the termination of his employment from United Management Services Pty Ltd (the respondent) on 16 February 2013.

[2] The respondent objects to the application being heard on the basis that the applicant was a casual employee with less than the minimum employment period and accordingly is not a person protected from the unfair dismissal provisions of the Act.

[3] The matter came before me on 21 June 2013. The applicant was represented by Ms Sherri Hayward from the Construction, Forestry, Mining and Energy Union (CFMEU) and the respondent was represented by Mr Allan McCristal, Operations Manager, Uplift Cranes (the trading name for United Management Services Pty Ltd).

[4] The respondent did not comply with directions issued by the Fair Work Commission (the Commission) to file and serve submissions by 7 June 2013 and Ms Hayward provided the Commission and the respondent with an outline of submissions in respect of the respondent’s jurisdictional objection and a witness statement from the applicant on 21 June. Evidence was given by the applicant.

Background

[5] The respondent trades as Uplift Cranes and erects and operates cranes on building sites. The respondent does not contend that it is a small business employer.

[6] The applicant was employed as a dogman on 28 May 2012. He was dismissed on 16 February 2013 on conduct grounds, which he contests.

Contentions

[7] The respondent contends that the applicant’s period of service as a casual employee does not count towards his period of employment because he is a casual employee who was not employed on a regular and systematic basis and during his period of service as a casual employee, did not have a reasonable expectation of continuing employment on a regular and systematic basis. Further, that because there was a period of 9 weeks during which he was not engaged due to unavailability of work he had not been employed for the minimum employment period of 6 months at the time of his dismissal.

[8] The applicant contends to the contrary, that he was a casual employee who was employed on a regular and systematic basis and during his period of service as a casual employee, he did have a reasonable expectation of continuing employment on a regular and systematic basis. Further, that his period of employment was not broken by the period of 9 weeks between August and October 2012, when he was not required to work and hence, he had been employed for more than the minimum employment period of 6 months at the time of his dismissal.

Statutory framework

[9] An application for an unfair dismissal remedy is made pursuant to s.394 of the Act. Section 394(1) reads as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

[10] As long as a person has been dismissed in terms of the Act, the Commission must then consider certain matters before proceeding to deal with the merits of an application. These are contained in s396 as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Section 396(b) requires the Commission to consider whether the person making the application is protected from unfair dismissal.

[11] In so far as this application is concerned s.382(a) of the Act addresses this as follows:

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.

[12] A “period of employment” is defined in s.384 of the Act which provides:

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 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.

[13] The “minimum employment period” is defined in s.383 of the Act as follows:

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.

The “minimum employment period” is one year for a small business or 6 months for an employer which is not a small business.

Consideration

[14] The applicant and the respondent agree that the applicant was employed as a casual employee. The first matter I must consider is whether any of the service of the applicant as a casual employee can be counted in the applicant’s period of employment. To do so I must consider whether the applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis. If I find in the affirmative for all or any of his service I must consider whether this service amounted to a period of employment that is at least the minimum employment period of 6 months.

[15] In a recent decision of the Commission, Jones C 1 considered the meaning of “regular and systematic” as follows:

“[29] The Macquarie Dictionary meaning of ‘regular’ relevantly includes:

1. Usual; normal; customary

2. Recurring at fixed time; periodic

3. Observing fixed times or habits 17

The Macquarie Dictionary meaning of ‘systematic’ relevantly includes:

1. Having, showing or involving a system, method or plan

2. Characterised by a system or method; methodical

3. Arranged in or comprising an ordered system 18

[30] The Court of Appeal, Australian Capital Territory, in Yaraka Holdings Pty Ltd v Giljevic 19considered a deeming provision applicable to independent contractors which, in part, deemed an individual to have been employed by an employer if the engagement ‘has been on a regular and systematic basis.’20 It should be noted that the deeming provision included matters which should be considered in determining whether an engagement has been on a regular and systematic basis. The following extracts from the judgements of the majority are instructive. Crispin P and Gray J noted:

It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the WorkplaceRelations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases. 21

[31] Their Honours noted that:

...it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. 22

[32] Relevantly, their Honours observed in relation to the meaning of ‘regular’ that:

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”. 23

and formed the view that the pattern of engagement of the individual in question over the years from 1995 to 2002 satisfied this description.

[33] In respect of the meaning of ‘systematic’, their Honours held:

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. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses. 24

[34] Madgwick J concurred with the majority. In a separate judgement, his Honour considered examples provided in the relevant statute of ‘individuals who are workers’ concluding that ‘the meaning to be ascribed to (the deeming provision) is conditioned by the examples.’ 25 Accordingly, his Honour stated:

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.²⁶

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 (cf the definition of ‘systematic’ in the Macquarie Dictionary, revised 3^rd edn, 2001). 27

[35] The finding as to whether employment is regular and systematic is a discretionary one having regard to the totality of the evidence. Setting out factors which dictate a finding one way or another is to be avoided, particularly so given the Act is silent as to the matters to be considered.”

[16] Mr Price had the following employment history:

Week	Period	Hours
1	23/5/12 to 29/5/12	19.5
2	30/5/12 to 5/6/12	0
3	6/6/12 to 12/6/12	0
4	13/6/12 to 19/6/12	28.5
5	20/6/12 to 26/6/12	0
6	27/6/12 to 3/7/12	9
7	4/7/12 to 10/7/12	26
8	11/7/12 to 17/7/12	28.5
9	18/7/12 to 24/7/12	13.5
10	25/7/12 to 31/7/12	32
11	1/8/12 to 7/8/12	54.5
12	8/8/12 to 14/8/12	33.5
13	15/8/12 to 21/8/12	30.5
14	22/8/12 to 28/8/12	0
15	29/8/12 to 4/9/12	0
16	5/9/12 to 11/9/12	0
17	12/9/12 to 18/9/12	0
18	19/9/12 to 25/9/12	0
19	26/9/12 to 2/10/12	0
20	3/10/12 to 9/10/12	0
21	10/10/12 to 16/10/12	0
22	17/10/12 to 23/10/12	0
23	24/10/12 to 30/10/12	9
24	31/10/12 to 6/11/12	0
25	7/11/12 to 13/11/12	0
26	14/11/12 to 20/11/12	34.25
27	21/11/12 to 27/11/12	52
28	28/11/12 to 4/12/12	26
29	5/12/12 to 11/12/12	49
30	12/12/12 to 18/12/12	55
31	19/12/12 to 25/12/12	22
32	26/12/12 to 1/1/13	0
33	2/1/13 to 8/1/13	40.5
34	9/1/13 to 15/1/13	48.5
35	16/1/13 to 22/1/13	49
36	23/1/13 to 29/1/13	25
37	30/1/13 to 5/2/13	35.5
38	6/2/13 to 12/2/13	51
39	13/2/13 to 19/2/13	31.5

[17] The applicant worked only 2 of the first 5 weeks of employment then worked consistently in consecutive weeks from week 6 to week 13. He did not work in weeks 14 to 22, worked in week 23 but not in weeks 24 and 25. From week 26 to 39 he worked consistently in consecutive weeks.

[18] In Mr Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 2 (the Ponce decision) Commissioner Roe said:

“[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.”

[19] I have no doubt that the applicant’s employment was on a regular and systematic basis between week 6 and week 13. The number of hours worked per week varied but the engagement was regular. The evidence is that there were differing start and finish times and work locations but these and the variable number of hours per week were accepted as a feature of the job, indeed a feature of the industry. For that period the applicant’s pattern of work revealed a regular and systematic structure. Similarly in weeks 26 to 39 the pattern of work was consistent. The evidence was that week 32 was the Christmas close down period when no one worked and this could not be regarded as an interruption to the pattern.

[20] Two questions arise. Was the applicant’s pattern of work in weeks 1-5 and weeks 14-25 insufficiently frequent to support the characterisation as adopted by Roe C in the Ponce decision? If so, did the existence of these periods infect the whole of the applicant’s employment such as to make the applicant the type of casual employee whose period of service cannot be counted towards the employee’s period of employment?

[21] Before answering these questions I will address the second limb of the test in the Act, that is, whether the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. It was the applicant’s evidence that he regarded his employment with the respondent as “his permanent job” and he anticipated that it would continue. He accepted work whenever it was offered. The respondent submitted that the business experienced a shortage of work from the pay week ending 21 August 2012 to the pay week commencing 24 October 2012 (weeks 14 to 25) and the applicant was not required to work (the period of downtime). His evidence is that during the period of downtime he was in regular contact with the respondent for updates on the availability of work and the respondent advised him that as soon as the Zetland job commenced he would be the first to be provided with the work. The applicant gave evidence that he sought other work to fill in the period but was unable to secure any work. He says he expected to be given work by the respondent as soon as the respondent had the work to give.

[22] I conclude that during the whole period of time in question, weeks 1-39, the applicant had an expectation of continuing employment and this expectation was reasonable.

[23] Turning to the vexed question of the effect of weeks 1-5 and 14-25 on my conclusion, Ms Hayward pointed me to a decision of the Commission in which separate periods of service with a single employer counted towards a single period of continuous service. In Shortland v The Smiths Snackfood Co Ltd (the Shortland decision) 3 the Full Bench said at paragraphs 10-14:

“[10] As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. 4 In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa. It is against that background that s.384 must be construed.

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s.384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.

[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted.”

[24] I have considered this decision in conjunction with the definition of “service” and “continuous service” in the Act. Section 22 - Meanings of service and continuous service contains the following:

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 underPart 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;

(c) any other period 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.

[25] The Shortland decision means that for the purposes of s.384 of the Act continuous service for a casual employee can be made up of two or more periods of service and thus, if necessary, weeks 1-5 and 14-25 are severable from the applicant’s period of employment. This is clear from the conclusion of the Full Bench that “Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a)”. But is it necessary to exclude these weeks from the applicant’s period of employment?

[26] It would be necessary if I conclude that the period of service does not meet the two tests of s.383 of the Act. I have already concluded that the whole period, weeks 1-39 meets the second test but what about the first test?

[27] In weeks 1-5 two weeks out of four were worked. At this stage the applicant and the respondent were commencing a relationship, getting into the swing of things, and this matured quite quickly into a continuing relationship and thus these weeks do not detract from the conclusion that the applicant was regularly and systematically engaged. They should not be excluded from the applicant’s period of employment and thus I conclude that Weeks 1-13 is a period of service in which the applicant was regularly and systematically engaged.

[28] . However the period of downtime in weeks 14-25 is a period of service which is neither systematic nor regular and it is of a duration that causes me to conclude that it should be excluded from the applicant’s period of employment. If such break/s were a feature of a regular pattern, such as school holidays for casual after school care workers, I might conclude that the period of downtime should be counted. The breaks would be a feature of employment on a regular and systematic basis. If on the other hand a break occurred and no contact was maintained between the parties I might conclude that the period was not downtime but a cessation of the contract of employment. It follows that such a break would not be a feature of employment on a regular and systematic basis. In this case the break has neither of these features; rather, it falls between two stools. The applicant and the respondent were in regular contact, the applicant expected to start work at any time and the respondent acknowledged that the applicant would get a start as soon as the job commenced.

[29] Consistent with the Shortland decision, and in the light of the definition of continuous service in the Act, I think that the period of downtime did not break, but cannot be counted towards the period of continuous service for the purpose of s.384 of the Act.

[30] I have already concluded that in weeks 26-39 the applicant was employed on a regular and systematic basis. 4

[31] Therefore the minimum employment period is to be calculated on the basis of two periods of service; one over weeks 1-13 totalling 13 weeks and one over weeks 26-39 totalling 14 weeks, a grand total of 27 weeks. This is a period of employment that is greater than the minimum period of employment of 6 months or 26 weeks. If I am wrong about the treatment of the period of downtime, and it is to be included, the result is the same.

[32] Ms Hayward also pointed me to the provisions of the enterprise agreement that covered the applicant’s employment, the United Management Services Pty Ltd/CFMEU Collective Agreement 2012-2016. 5

[33] Clause 23 Casual Labour states:

“23. CASUAL LABOUR

A casual Employee is an Employee employed on an occasional basis and whose work pattern is not regular and systematic. When a person is engaged for casual employment the Employee will be informed in writing that the Employee is to be employed as a casual, the job to be performed, the classification level, the actual or likely number of hours to be worked, and the relevant rate of pay.

A casual Employee shall be entitled to all the applicable rates and conditions of employment prescribed in this Agreement except annual leave, personal leave, parental leave, jury service, redundancy and public holidays.

Provided that an Employee engaged by the Company pursuant to this clause, on a regular or systematic basis for a sequence of periods of employment for more than six weeks shall not be a casual Employee and shall be entitled to all the conditions of a permanent Employee.”

[34] Ms Hayward did not press a conclusion on the Commission arising out of this provision and having come to my decision I do not see the need to consider this provision further.

Conclusion

[35] I have considered the submissions and evidence in this matter and I conclude that the applicant was a casual employee who was employed on a regular and systematic basis and during his period of service as a casual employee, had a reasonable expectation of continuing employment. I conclude that his period of employment was greater than the minimum employment period of 6 months at the time of his dismissal. Accordingly the respondent’s jurisdictional objection is dismissed and the application may proceed.

DEPUTY PRESIDENT

Appearances:

S Hayward, Construction, Forestry, Mining and Energy Union, for Mr Peter Price

A McCristal for United Management Services Pty Ltd

Hearing details:

2013.

Sydney:

June 21.

 1   [2012] FWA 5552

 2   [2010] FWA 2078

 3   [2010] FWAFB 5709

 4   PN18

 5   AE895909

Printed by authority of the Commonwealth Government Printer

<Price code C, PR538356>