Federal commission clarifies casual employment exclusion

Cases

Federal commission clarifies casual employment exclusion

In determining whether or not an employee is excluded (pursuant to reg 30B(3)(a)) from the termination of employment provisions of the Workplace Relations Act 1996, periods of employment other than as a casual, can constitute part of the calculation for the purposes of determining whether the employee had been employed for '...a sequence of periods of employment during a period of at least 12 months'.

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In determining whether or not an employee is excluded (pursuant to reg 30B(3)(a)) from the termination of employment provisions of the Workplace Relations Act 1996, periods of employment other than as a casual, can constitute part of the calculation for the purposes of determining whether the employee had been employed for '...a sequence of periods of employment during a period of at least 12 months'. The fact that at the time of termination an employee is engaged on a casual basis is inconsequential, if throughout the 12 months proceeding the termination, employment continued even though it may have varied in nature.

In a single decision relating to two matters, Brond v ADI Ltd & Bourke v Brown Gouge Rosebud, Print T2672, [2000] 1327 IRCommA, (31 October 2000), the Full Bench of the Australian Industrial Relations Commission has resolved that all periods of employment ought to be considered when calculating whether a casual employee has met the minimum service period specified in the Workplace Relations Regulations.

Background

The Full Bench of the Commission considered two appeals, which raised the same issue, namely the construction of reg 30B(3)(a). Section 170CCof the Workplace Relations Act 1996, in conjunction with reg 30B(3)(a) operate to exclude from the operation of the Commission's unfair dismissal jurisdiction, employees engaged on a casual basis for a short period of time. A casual employee is taken to be engaged for a short period of time unless 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.

The appeal in Brond v ADI Ltd (Brond) is against a decision of Cribb C, (reported in HR Link 118/2000), in which it was held that the former employee was excluded from the Commission's jurisdiction because at the time he was terminated he was a 'casual employee engaged for a short period of time'. It is worth recalling that Brond commenced employment with ADI in May 1997 on a fixed-term contract. He was subsequently employed on a series of consecutive fixed-term contracts until March 1998, whereupon Brond was engaged as a casual employee. Brond's employment was terminated in December 1998. In considering whether the Commission had jurisdiction to hear the matter, Cribb C found that only the period of casual employment ought to be considered.

The facts in the second appeal, Bourke v Brown Gouge Rosebud (Bourke) are similar. Bourke was engaged as a casual employee in March 1998, became a full-time employee for six months between September 1999 and February 2000, before reverting to casual employment until the termination of her employment in March 2000. In Bourke, Commissioner Holmes dismissed the jurisdictional objection finding that the former employee had been engaged for a sequence of periods in excess of two years, and that reg 30B(3)(a) should not be read down to embrace only casual employment. 

Issue on Appeal

Therefore, the issue which arises as a result of both appeals is the question of whether or not periods of employment other than as a casual, can form part of the calculation for the purposes of '...a sequence of periods of employment during a period of at least 12 months' (reg 30B(3)(a)). In both cases the employee was a casual employee at the time of termination.

The employers in both matters contended that the Commission ought to only count those periods of employment where the employee was a casual employee, for the purpose of calculating the 12 month period specified in reg 30B(3)(a). That is that the words in the regulation ought to be given meaning according to the context in which they appear. The employees on the other hand contended that periods of employment other than as a casual, can be taken into account in calculating the 12 month period.

Full Bench consideration

The Full Bench of the Commission rejected the position adopted by the employers and held that the literal meaning of the words used in reg 30B(3)(a) ought to be given effect.

On its face the provision is not limited to periods of casual employment and we see no warrant for reading the provision down in the manner suggested. In our view periods of employment other than as a casual can be taken into account in giving effect to the relevant sub-regulation.

The Full Bench noted that the alternative view could result in irrational and unjust consequences. To demonstrate this, the Full Bench provided two scenarios:

  1. A person employed on a full-time basis for 11 months and then worked for the same employer as a casual employee on a regular and systematic basis for two months prior to being terminated.
  2. A person is employed as a casual on a regular and systematic basis for a sequence of periods of employment during a 13 month period.

Under a literal interpretation of reg 30B(3)(a) the employees in both scenarios would be entitled to make application for relief under Div 3 of Pt VIA of the Workplace Relations Act 1996. However, the contextual approach advocated by the employers and rejected by the Full Bench would deny access to the employee in scenario 1 and not the employee in scenario 2. The injustice of such the contextual interpretation of reg 30B(3)(a) is manifest in the fact that if the employee in scenario 1 had been terminated in the first 11 months of his or her employment then they would have been entitled to seek relief. According to the Full Bench, the contextual approach advocated by the employers in both matters would yield situations where an employee's mode of employment could be altered for the purpose of avoiding employer obligations under the termination of employment provisions of the federal Act.

Leave to appeal was granted in respect of both appeals. However, in view of the construction of reg 30B(3)(a) adopted by the Full Bench the appeal in Brond was upheld and the first instance decision quashed, while the appeal in Bourke was dismissed.

 

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