It is a question that has been asked and answered many times at law…what is ‘regular and systematic’?. Many of the cases and interpretations have leaned heavily on the concept of predictable hours as what makes the employment ‘regular and systematic’. The latest case has clearly identified that the pattern of hours of a casual need not be consistent or predictable for their work to be ‘regular and systematic’. This weeks HR Highlight will explore what this means for businesses employing in the fuel industry.
Why does ‘regular and systematic’ matter
Casual employees have access to rights that vary depending on, not just the status of thier employment (as a casual) but also on the nature of the work they do as a casual.
In terms of accessing unfair dismissal provision a casual has to be “regular and systematic” and have served the minimum service period in order to access unfair dismissal provisions and lodge a claim.
In terms of Award based elements, like Casual Conversion (see; https://acapmag.com.au/2020/05/hr-highlight-casual-controversybeyond-the-headlines/) many Awards state the employee must be “regular and systematic” in order for the Casual Conversion clause to apply.
So what is and is not “regular and systematic” matters.
In this case an employee brought an unfair dismissal claim against the business. The business has responded that as the employee was a casual for the majority of her employment, that was not regularly and systematically engaged in a predictable pattern of hours, that the employee had no right to access the unfair dismissal provisions.
Of interest in this case is that the employee was a permanent employee at termination, having converted to permanent three months earlier.
In the decision on appeal the Full Bench noted “treating the degree of regularity in the pattern of hours worked … as the only or decisive consideration in the application of s384(2)(a)(i) (rather than merely as one of a number of relevant considerations in the analysis)” was a failing of the initial case which found that the employee was not entitled to access unfair dismissal provisions.
The Full Bench upheld that despite varying hours and days the employees employment was “regular and systematic” and thus counts as service in the accessing of unfair dismissal provisions.
The merits of the unfair dismissal case will now be heard by the Commission.
Learnings for the fuel industry
This case highlights that it is important to understand the legal and operational nature of the work that is undertaken, and how that impacts on the employees access to provisions and business risk.
While the fuel industry is accustomed to a differing standard when it comes to casuals and the operation of Casual Conversion clauses (that have been a feature of the industry for more than a decade) it is still worthwhile to understand the impact of this latest case on these elements;
- Unfair Dismissal
This case highlights that the regularity of engagement, rather than the pattern or hours worked is of higher importance in determining if an employee has met the requirements for accessing unfair dismissal provisions.
So all casual employees that are regularly engaged will be able to access unfair dismissal provisions once they have served the minimum service period.
- Casual Conversion
It is important to note that the fuel industry there are actually 3 separate Casual Conversion clauses, each operating a bit differently.
- Retail – the Vehicle Repair, Service and Retail Award 2020 – Casual Conversion is available after – ‘a sequence of periods of engagement’ – so “regular and systematic” does not come into the application for this purpose
- Transport – the Road Transport and Distribution Award 2010 – Casual Conversion is available after – ‘a sequence of periods of engagement’ – so “regular and systematic” does not come into the application for this purpose
- Administration – the Clerks Private Sector Award 2020 – Casual Conversion is available after working a period of time in a pattern of hours – so “regular and systematic” has an impact here
The operation of “regular and systematic” is of a smaller impact to the industry, due to the wording of the Casual Conversion clauses, however it is going to continue to be vital in any challenges and in changes to the operation of Casual Conversion that have been mooted by the Government.
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Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Training