1
[2013] FWCFB 2434
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Telum Civil (Qld) Pty Limited
v
Construction, Forestry, Mining and Energy Union
(C2013/2672)
Industries not otherwise assigned
VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT RICHARDS
COMMISSIONER LEWIN BRISBANE, 22 APRIL 2013
Appeal - meaning of “casual employee” in the National Employment Standards.
[1] This is an application by Telum Civil (Qld) Pty Limited (Telum) for permission to
appeal and, if permission is granted, an appeal against a decision of Commissioner Booth
([2012] FWA 10684) on an application pursuant to s.739 of the Fair Work Act 2009 (FW
Act) for FWA to resolve a dispute raised under the dispute settlement procedure in the Telum
Civil (QLD) Pty Limited ABN 98 134 691 482 Section 329 Union Greenfields Agreement
Contract Labour Hire -Civil Works February 2009 (Agreement), an enterprise agreement
made under the Workplace Relations Act 1996.
[2] Telum operates a construction business. It appears that at the time the Agreement was
made Telum was respondent to the National Building and Construction Industry Award 2000,
a pre-reform Federal award. From 1 July 2009 Telum was covered by the Building and
Construction General On-site Award 2010 (Construction Modern Award) albeit that the
Agreement prevailed over the Award.
[3] The dispute relates to a group of Telum’s employees who had worked on the ‘Origin
Alliance Project’ whose employment had come to an end because the project was complete
and the employees were no longer required. The CFMEU contended on behalf of the
employees that they were entitled redundancy payments under the National Employment
Standards (NES). The group of employees in question (the Employees) had been regarded by
Telum as casual employees and paid a casual loading.
[4] Division 11 of the NES deals with notice of termination and redundancy pay. Section
123(1)(c) provides that Division 11 does not apply to a casual employee:
“123 Limits on scope of this Division
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2434
2
Employees not covered by this Division
(1) This Division does not apply to any of the following employees:
…
(c) a casual employee; …”
[5] Telum refused to make redundancy payments the basis that the Employees were casual
employees.
[6] Conciliation of the dispute was unsuccessful and the Commissioner conducted an
arbitration that the parties agreed would be determined by reference to the following
“Questions for arbitration... determined at a Directions Hearing on 19 October 2012” ([2012]
FWA 10684 at [9]):
1 Whether employees whose “status of employment” under clause 3.3 of the
[Agreement], who are employed as casual employees and have been employed
for more than 12 months are entitled to a redundancy payment or [are] such
payments excluded under s.123 of the Fair Work Act 2009?
2 If the answer is that employees are not excluded, what [are] the criteria for
inclusion for redundancy payment?
[7] The Commissioner noted that “[t]he parties agreed that the matter could be decided on
the papers with the need for a hearing.”
[8] Clause 2 of the Agreement relevantly provides:
“...
This Agreement covers all of the terms and conditions of employment and shall
operate to the exclusion of any and all other industrial agreements, notional
agreements or awards.
...”
[9] Clause 3.3 of the Agreement provides:
“3.3 Status of Employment
Employees under this Agreement will be employed in one of the following categories:
• permanent employees; or
• casual employees.
At the time of their engagement, the Telum will inform each employee of the terms of
their engagement and, in particular, whether they are to be a permanent employee or
casual employee.
[2013] FWCFB 2434
3
Casual employees will be engaged by the hour. A person engaged as a casual will be
paid a loading of 25% on the permanent employee ordinarily time wage rates
prescribed in clause 6 of this Agreement. The casual loading will be paid in lieu of and
compensate for all benefits such as leave, notice, redundancy and any other full-time
entitlements that do not apply to casual employees.” (underline emphasis added)
[10] Clause 3.4 obliged Telum to give “a permanent employee” notice of termination as
prescribed in that clause and states:
The employment of a casual employee may be terminated by 1 hour’s notice or
payment or forfeiture in lieu thereof by either party. Superannuation shall be paid on a
pro rata basis.
[11] Clause 3.9 conferred a redundancy benefit on “each permanent employee”.
[12] It appears not to have been in dispute that Telum had recorded all of the Employees in
its books as casual employees and had paid them a casual loading, recorded as such on their
pay slips. It is more than tolerably clear from the Commissioner’s reasons for decision that the
case had proceeded before the Commissioner on an assumption that the Employees had been
expressly engaged as casuals at the time of their employment, had been paid as casuals
throughout their employment and had otherwise been treated as casuals by Telum (see
especially [2012] FWA 10684 at [54]).
[13] Indeed, the initiating application filed by the CFMEU proceeded on a premise that the
Employees were casual employees. On its face, the initiating application contended that the
Employees were entitled to redundancy payments in accordance with the NES because they
were “long term casual employees”.
[14] The Commissioner correctly concluded that the entitlement or otherwise of the
Employees to redundancy payments under s.119 of the NES turned on whether the Employees
were “casual” or not within the meaning of s.123(1)(c). ([2012] FWA 10684 at para [14]).
[15] The CFMEU fundamentally altered its contentions during the course of the matter.
The Commissioner noted that “[t]he CFMEU in its application submitted that the employees
were long term casual employees as defined in the Act and therefore entitled to redundancy.
In later submissions, it argued that the employees were not casual, regardless of the label used
or the forms surrounding their employment”. The Commissioner continued:
[27] It is not entirely clear what the CFMEU intended by its use of the term “long term
casual employee”.
...
[29] If the CFMEU’s argument is that its named members are entitled to redundancy
because they are long term casual employees, it is misconceived. However as I
understand the application it is that the employees are entitled because of their
patterns, hours and expectation of work, and because they have been so employed for
longer than 12 months. This interpretation is fortified by the submissions later made
by the CFMEU which did not rely on the long term casual argument.
[2013] FWCFB 2434
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[16] The Commissioner had noted the following submissions from the CFMEU that she
accepted as uncontested ([2012] FWA 10684 at [17])
9. The Employees were engaged for full-time equivalent hours.
10. The hours worked by the Employees were regular and not subject to variations of
any kind. The Employees worked regular, consistent start and finish times.
11. The Employees attended work at the same time each working day without specific
direction as there was an expectation that they would do so.
[17] The Commissioner considered a number of authorities on what constitutes casual
employment under the general (common) law. The case advanced by the CFMEU, and
accepted by the Commissioner, was that the expression “casual employee” in s.123(1)(c)
should be given a meaning consistent with the general law.
[18] The Commissioner’s conclusions are captured in the following extract ([2012] FWA
10684 at para [50]ff):
[50] Understanding whether the employees are casual or not requires the Tribunal
to read the Agreement and the Act together in the context of the general law. Industrial
instruments are often imprecise and Court decisions cannot be read as if they were
statutes. So it is here, where the Tribunal is called on to arbitrate on the true
employment status of employees based on the Agreement, the Act, the common law
and the facts of the case.
[53] The uncontested submissions before the Tribunal, stated at paragraph [16] (sic
- [17]) above point to the employees not being casual employees as a matter of the
facts submitted to the Tribunal and consistent with the authorities referred to above.
[54] The description of the employees as casual under the agreement and at the time
of engagement is clearly not, despite Telum’s submissions, determinative of the
employment status as a matter of fact.
[55] Based on the factors mentioned in the cases discussed above and the
uncontested factors asserted by the CFMEU, a proper characterisation of the
CFMEU’s members that are the subject of this application is that their employment
status is not casual. This conclusion is because of the following:
• the employees’ full-time engagement;
• the regularity of their hours;
• the lack of variation of hours;
• the regular and consistent start and finish times; and
• the lack of need for direction as to attendance.
[56] It is important to note that these factors have been asserted by the CFMEU, but
not proven in each individual case. Indeed the question for arbitration before the
[2013] FWCFB 2434
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Tribunal was not about the entitlements of each named individual but whether the
former employees were eligible for redundancy under the Act or not.
Findings
[57] The employees are not excluded by s.123(1)(c) of the Act because, depending
on the facts in each case, they were not in fact casual employees.
[58] It follows that the answers to the questions for adjudication are:
1. The employees are entitled to redundancy payments, subject to
ascertaining the facts in each case; and
2. The criteria for inclusion are the facts in each case based on assessment
by reference to the factors listed in paragraph (b) below.
[59] It is for the parties to ascertain individually, based on the normal criteria for
redundancy payments under the Agreement, the Act, and the general law what the
entitlement is for each of the individuals named in the application.
[60] Should there be dispute about individual eligibility and entitlement, that is a
matter for the Fair Work Ombudsman.
ORDER
A. It is ordered that:
(a) individuals named in the application be excluded from the scope of this order
if the individual:
i. has continued in employment with Telum;
ii. had not completed 12 months employment with Telum at the time of
termination;
iii. was terminated other than at Telum’s initiative (eg, the individual
resigned or retired);
iv. was terminated by Telum for cause;
(b) the remaining named individuals are eligible for redundancy if they meet the
following criteria:
Pattern and duration of work
i. a regular pattern of hours or full time employment;
ii. an on-going employment relationship as opposed to an episodic one;
[2013] FWCFB 2434
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iii. work patterns were chosen by the employer, and the employee generally was
not able to elect whether to work or not when work was offered;
Other conditions of work
iv. the employer generally required notice from the employee prior to the
employee being absent or on leave.
(underline emphasis added)
Consideration
[19] The case before the Commissioner turned on the meaning of the expression “casual
employee” in s.123(1)(c) on its proper construction.
[20] The Commissioner did not expressly address the proper construction of s.123(1)(c)
but, rather, proceeded on an assumption the expression “casual employee” in s.123(1)(c)
referred to the notion of casual employment under the general (common) law. For the reasons
that follow, that assumption was affected by error.
[21] We do not propose to set out a detailed summary of the state of the general law on
what constitutes casual employment. A useful conspectus of the authorities was provided by
Boland P in Public Service Association and Professional Officers’ Association Amalgamated
Union of New South Wales v Department of Justice and Attorney General (Corrective
Services NSW) [2010] NSWIRComm 148. It is sufficient to note for present purposes that the
notion of casual employment remains “ill-defined” under the general law and calls for the
application of criteria that do not deliver a clear and unambiguous answer in many cases but,
rather, lead to results on which reasonable minds may differ.
[22] The language of s.123(1)(c), like any other provision, must be construed in the context
of the FW Act as a whole and with the purposive approach mandated by s.15AA of the Acts
Interpretation Act 2001. There is no rule of construction that dictates that an expression such
as “casual employee” must have its general law meaning.
[23] The FW Act did not commence in a vacuum. It replaced the WR Act and inherited a
Federal award system and an award modernisation process that was undertaken in anticipation
of the central place of modern awards in the FW Act system.
[24] There is a long history of regulation of casual employment in Federal awards -
including grappling with the issues arising from the nature of casual employment, the
increasing casualisation of the workforce and problems associated with employees who are
labelled and paid as casuals notwithstanding that they have a regular and ongoing pattern of
engagement indistinguishable from ‘permanent’ full time or part-time employees. That history
is set out at length in the decision of the Full Bench of the AIRC in Re Metal, Engineering
and Associated Industries Award 1998 (2000) 110 IR 247 (Munro J, Polities SDP and
Lawson C; 29 December 2000) (Metals Casuals Case) and we will not repeat it here. That
careful decision is of particular importance and repays close study. The Metal, Engineering
[2013] FWCFB 2434
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and Associated Industries Award 1998 (pre-reform Metals Award) was the centrepiece of
the Federal award system in the decades prior to the award modernisation process. The Full
Bench was dealing with an application by the AMWU to vary the provisions relating to casual
employment in pre-reform Metals Award to restrict casual employment under the pre-reform
Metals Award to what have been described as “true” casuals (employees who work under
arrangements characterised by ‘informality, uncertainty and irregularity’ - (2000) 110 IR 247
at para [109]) and to increase the casual loading.
[25] The Metals Casuals Case demonstrates how and why the specification of casual
employment in Federal awards had diverged from the (ill-defined) general law position to a
position where, by the time of award modernisation process, for many, if not most, Federal
awards, an employee was a casual employee if they were engaged as a casual (that is,
identified as casual at the time of engagement, perhaps with a requirement of a writing) and
paid a casual loading. The Full Bench recognised that this approach had led to a position
where employees with regular and systematic hours on an ongoing basis could still be “casual
employees” under a Federal award.
[26] The objects of the FW Act are specified in s.3. Of particular relevance are the
following:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and
productive workplace relations that promotes national economic prosperity and social
inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible
for businesses, promote productivity and economic growth for Australia’s future
economic prosperity and take into account Australia’s international labour obligations;
and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms
and conditions through the National Employment Standards, modern awards and
national minimum wage orders; and
...
(f) achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations and
clear rules governing industrial action; ... (underline emphasis added)
[27] Chapter 2 of the FW Act deals with terms and conditions of employment of national
system employees. Section 41 notes:
The main terms and conditions come from the National Employment Standards,
modern awards, enterprise agreements and workplace determinations.
The National Employment Standards (Part 2-2) are minimum terms and conditions
that apply to all national system employees.
[2013] FWCFB 2434
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A modern award (see Part 2-3), an enterprise agreement (see Part 2-4) or a workplace
determination (see Part 2-5) provides terms and conditions for those national system
employees to whom the award, agreement or determination applies. ... (underline
emphasis added)
[28] Section 59 of the FW Act provides a guide to the National Employment Standards in
Part 2-2 and underscores the interrelationship between the NES and modern awards and
enterprise agreements:
The National Employment Standards are minimum standards that apply to the
employment of national system employees. Part 2-1 (which deals with the core
provisions for this Chapter) contains the obligation for employers to comply with the
National Employment Standards (see section 44).
The National Employment Standards also underpin what can be included in modern
awards and enterprise agreements. Part 2-1 provides that the National Employment
Standards cannot be excluded by modern awards or enterprise agreements, and
contains other provisions about the interaction between the National Employment
Standards and modern awards or enterprise agreements (see sections 55 and 56).
(underline emphasis added)
[29] Section 282 notes that Part 2-2
“...provides for the FWC (constituted by the Minimum Wage Panel) to set and vary
minimum wages for national system employees. For employees covered by modern
awards, minimum wages are specified in the modern award. For award/agreement free
employees, minimum wages are specified in the national minimum wage order.
[30] Section 282 also notes that Div 4 of Part 2-2 “provides for national minimum wage
orders and requires employers to comply with them” and that such orders “also set the casual
loading for award/agreement free employees”. (See s.282(2) and (4), s.295(1)(b) and (2)(c)
and s.295(1)(b)).
[31] It may be noted that the FW Act draws a distinction between the coverage of a modern
award and the application of that modern award (as did Part 10A of the WR Act). Section 57
of the FW Act provides that a modern award does not apply to an employee (or to an
employer, or an employee organisation, in relation to the employee) in relation to particular
employment at a time when an enterprise agreement applies to the employee in relation to that
employment. Transitional provisions achieved the same effect in relation to certified
agreements and, later, workplace agreements made under the WR Act that continued in
operation after the commencement of the FW Act - see Part 2 of Schedule 3 of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) and
s.170LY and, after the WorkChoices amendments, s.349 of the WR Act).
[32] If a modern award covers an employer and its employees, that modern award becomes
the primary reference instrument against which an enterprise agreement is assessed for the
purposes of the better off overall test in s.193. A proper application of that test should ensure
[2013] FWCFB 2434
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that ‘casual’ employees under an enterprise agreement are better off overall when compared
to their entitlements under the applicable modern award.
[33] Part 10A of the Workplace Relations Act 1996 (WR Act) made provision for an award
modernisation process and the making of modern awards by the Australian Industrial
Relations Commission (AIRC). Section 576J specified the matters about which terms could
be included in a modern award. Section 576J(1)(b) of the WR Act authorised the inclusion of
terms about:
(b) type of employment, such as full time employment, casual employment,
regular part time employment and shift work, and the facilitation of flexible working
arrangements, particularly for employees with family responsibilities; (underline
emphasis added)
[34] The FW Act, in Part 2-3, makes continuing provision for that system of modern
awards and contains an authorisation in identical terms: s.139(1)(b) of the FW Act.
[35] As a result of the award modernisation process, the Full Bench of the AIRC made
some 122 modern awards covering most of the economy that commenced to operate on 1
January 2010, including the Construction Modern Award. Roughly speaking, the areas of
employment that remain award-free are only those areas that, historically, have been award-
free.
[36] Section 59 and s.139(1)(b) of the FW Act demonstrate that the legislature
contemplated that casual employment, as a type of employment, might be defined in modern
awards as, indeed, it has been.
[37] The FWC has responsibility for maintaining the modern award system in accordance
with the modern awards objective in s.134 which specifies that “[t]he FWC must ensure that
modern awards, together with the National Employment Standards, provide a fair and relevant
minimum safety net of terms and conditions, taking into account” a list of matters: see,
generally, Part 2-3 of the FW Act.
[38] All of the modern awards contain a definition of casual employment. Those
definitions, notwithstanding some variation in wording, have the same core criteria:
(i) That the employee was “engaged” as a casual - that is, the label of “casual” is
applied at the time of time of engagement; and
(ii) That the employee is paid as a casual, and specifically, the employee is paid a
casual loading (set at 25% in all of the modern awards, subject to transitional
arrangements), which loading is paid as compensation for a range of entitlements that
are provided to permanent employees but not to casual employees.
[39] For example, clause 14.1 of the Manufacturing and Associated Industries and
Occupations Award 2010 provides:
[2013] FWCFB 2434
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14.1 A casual employee is one engaged and paid as such. A casual employee for
working ordinary time must be paid an hourly rate calculated on the basis of one
thirty-eighth of the minimum weekly wage prescribed in clause 24.1(a) for the work
being performed plus a casual loading of 25%. The loading constitutes part of the
casual employee’s all purpose rate.
[40] That award excludes casual employees from the entitlement to annual leave, personal
leave and the other entitlements for which the casual loading compensates.
[41] Clause 14 of the Construction Modern Award relevantly provides:
14.1 A casual employee is one engaged and paid in accordance with the provisions of
this clause.
14.2 A casual employee is entitled to all of the applicable rates and conditions of
employment prescribed by this award except annual leave, paid personal/carer’s leave,
paid community service leave, notice of termination and redundancy benefits.
14.3 An employer, when engaging a person for casual employment, must inform the
employee, in writing, that the employee is to be employed as a casual, stating by
whom the employee is employed, the job to be performed, the classification level, the
actual or likely number of hours to be worked, and the relevant rate of pay.
...
14.5 A casual employee must be paid a casual loading of 25% for ordinary hours as
provided for in this award. The casual loading is paid as compensation for annual
leave, personal/carer’s leave, community service leave, notice of termination and
redundancy benefits and public holidays not worked.
[42] Again, this approach to the identification of casual employees was not an innovation in
the modern awards. Many, if not most, of the pre-reform awards, and certainly the main pre-
reform awards, adopted this approach.
[43] None of the modern awards adopt the general law approach to the identification of
casual employees. Indeed, a number of modern awards contain ‘casual conversion’ provisions
(typically where casual conversion was a feature of the key Federal awards and or NAPSAs
replaced by the modern award) that allow for an employee who is engaged and paid as a
casual, but who works systematic and regular hours for a sufficient period, to seek conversion
to permanent full time or part time employment. For example, the Construction Modern
Award contains such a provision, clause 14.8, which includes the following:
14.8 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been
engaged by a particular employer for a sequence of periods of employment under this
award during a period of six months, thereafter has the right to elect to have their
contract of employment converted to full-time or part-time employment if the
employment is to continue beyond the conversion process.
[2013] FWCFB 2434
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(b) For the purposes of clause 14.8(a), an irregular casual employee is one who has
been engaged to perform work on an occasional or non-systematic or irregular basis.
...
(h) An employee who has worked on a full-time basis throughout the period of casual
employment has the right to elect to convert their contract of employment to full-time
employment and an employee who has worked on a part-time basis during the period
of casual employment has the right to elect to convert their contract of employment to
part-time employment, on the basis of the same number of hours and times of work as
previously worked, unless other arrangements are agreed on between the employer and
employee.
...
[44] Such ‘casual conversion’ provisions were not uncommon in pre-reform Federal award
and presuppose that the general law approach to identifying casuals does not apply in the
Federal award context and that a provision such as this is required if an employee who is
engaged and paid as a casual is to be treated as anything other than a casual for the purposes
of a modern award.
[45] The general approach to casual employment in the modern awards is a continuation of
the approach explained and adopted in the Metals Casuals Case and underscored in
Redundancy Case 2004 (PR032004).
[46] It will be noted that a range of NES entitlements do not apply to a “casual employee”:
parental leave and related entitlements (Div 5 - see s.67(2)),
annual leave (Div 6 - see s.96)
personal/carer’s (sick) leave and compassionate leave (Div 7 - see s.86)
notice of termination and redundancy pay (Div 10 - see s.123)
public holidays (Div 10 - casual employees are not paid unless rostered on for the
public holiday)
[47] These are all entitlements of permanent employees that are compensated for in the
casual loading: compare Metals Casuals Case (2000) 110 IR 247 at [160]ff and Re Pastoral
Industry Award 1998 (2003) 123 IR 184 at [76]ff and esp at [109]-[111].
[48] To adopt the construction of s.123(1)(c) adopted by the Commissioner would allow
for double dipping by employees engaged as casuals and paid the casual loading, but who
work regular and systematic hours, of the sort that the Full Bench in the Redundancy Case
2004 set its face against (PR032004 at [154]). It is unlikely that the legislature intended that
outcome. It is an outcome that is inconsistent with the purpose and objects of the FW Act. It is
an outcome that would tend to impede productivity and flexibility (cf s.3(a) and (f)) for the
reasons explained by the Full Bench in the Metals Casuals Case.
[49] Other uses of the expression “casual employee” or the word “casual” in the FW Act
support the conclusion that they refer to the characterisation of the employee under the
applicable modern award or enterprise agreement.
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[50] The FW Act defines the expression “long term casual employee’ in s.12 to mean
long term casual employee: a national system employee of a national system
employer is a long term casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b) the employee has been employed by the employer on a regular and
systematic basis for a sequence of periods of employment during a period of at
least 12 months.
[51] This very definition suggests that legislature did not intend the expression “casual
employee” to call up the general law approach. If the criterion in (b) is satisfied then the
employee would likely not be a “casual employee” under the general law approach but the
definition presupposes that an employee who satisfies the criterion in (b) can still be a “casual
employee” within the meaning of (a).
[52] Moreover, that definition is used in only two places in the FW Act:
(i) in s.65(2)(b) in relation to the right to request flexible working arrangements to
long term casual employees (casuals being otherwise excluded); and
(ii) in s.67(2)(a) in relation to parental leave.
[53] In each case, the definition is used to extend those rights to long term casual
employees, being rights to which casual employees are otherwise expressly excluded.
[54] Section 23 specifies the meaning of the expression “small business employer” and
relevantly provides:
23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if
the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the
employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at
that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she
has been employed by the employer on a regular and systematic basis.
[55] Again, the language presupposes that an employee can still be a casual employee even
though he or she is employed on a regular and systematic basis.
[56] The FW Act makes special provision in relation casual employees accessing the unfair
dismissal remedy. Relevantly for present purposes, an employee is not protected from unfair
dismissal by the FW Act unless her or she has “has completed a period of employment with
his or her employer of at least the minimum employment period” (s.382(a)). The minimum
[2013] FWCFB 2434
13
employment period is 6 months or 12 months depending upon whether the employer is a
“small business employer” (s.383). The expression “period of employment” is defined in
s.384 which relevantly 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; ...
[57] Again, the language of s.383(2)(a) presupposes that an employee employed on a
regular and systematic basis with a reasonable expectation of continuing employment on a
regular and systematic basis can still be a “casual employee”. A conclusion at odds with the
general law approach adopted by the Commissioner.
[58] In summary, the FW Act provides for the regulation of terms and conditions of
employment of national system employees through an interrelated system of the National
Employment Standards, modern awards, enterprise agreements (and, in some cases,
workplace determinations or minimum wage orders). Having regard to the objects and
purpose of the legislation, it is obvious that the legislature intended that those components
should interact consistently and harmoniously. We conclude that on the proper construction of
the FW Act the reference to “casual employee” in s.123(3)(c) and the rest of the NES - and,
indeed, elsewhere in the FW Act - is a reference to an employee who is a casual employee for
the purposes of the Federal industrial instrument that applies to the employee, according to
the hierarchy laid down in the FW Act (and, if applicable, the Transitional Act). That is, the
legislature intended that a “casual employee” for the purposes of the NES would be consistent
with the categorisation of an employee as a “casual employee” under an enterprise agreement
made under Part 2-4 of the FW Act (or under an “agreement based transitional instrument”
such as a workplace agreement or certified agreement made under the WR Act) that applies to
the employee or, if no such agreement applies, then consistent with the categorisation of an
employee as a “casual employee” within the modern award that applies to the employee.
Subject to any terms to the contrary, a reference to a “causal employee” in an enterprise
agreement (or agreement based transitional instrument) will have a meaning consistent with
the meaning in the underpinning modern award (or pre-reform award/NAPSA).
[2013] FWCFB 2434
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[59] The CFMEU placed particular reliance on the decision of Barker J in Williams v
MacMahon Mining Services Pty Ltd (2010) 201 IR 123. That case was relevantly concerned
with the meaning of “casual employee” in s.227 of the Workplace Relations Act 1996. Barker
J noted (at [31]) that “[t]he parties accept that the WR Act does not define the expression
“casual employee” and so the expression should be given its ordinary common law meaning.”
This case is concerned with a different statutory context and Barker J’s decision does not
assist in the proper construction of the expression “casual employee” in s.123(1)(c) of the FW
Act.
[60] In the present case, the Employees were engaged as casuals under the Agreement. The
Agreement was a workplace agreement made under the WR Act and continued to operate
after 1 July 2009 as an “agreement based transitional instrument”. It was underpinned by the
pre-reform National Building and Construction Industry Award 2000. Clause 13 of that pre-
reform award relevantly provided:
13.1 Weekly hire - operators
13.1.1 The following provisions shall apply to the Operator classifications contained
in 18.1.2 and 19.3.1 of this award:
13.1.1(a) Except as to casual labour, employment shall be by the week.
An employee to become entitled to payment on a weekly basis shall, except as
provided by clause 33 – Personal leave of this award, perform such work as the
management shall from time to time require on the days and during the hours
usually worked by the class of employees affected.
13.1.1(b) Employment for the first two weeks of service shall be from
day to day at the weekly rate fixed. Provided that any employee who has once
served a probationary period of two weeks with any employer shall not be
subject to be employed for a second probationary period with the same
employer except when such re-engagement takes place at least one month after
the termination of employment. Provided, further, that an employee shall be
paid for any holiday or holidays which occur during any period the employee is
employed on probation pursuant to this clause.
13.2 Daily hire - tradespersons and labourers
13.2.1 The following provisions shall apply to the Tradesperson and Labourer
classifications contained in 18.1.2 and 19.3.2 of this award:
13.2.1(a) One day’s notice of termination of employment shall be given
on either side or one day’s pay shall be paid or forfeited.
13.2.1(b) Subject to the termination provisions of clause 36 of this award
notice given at or before the usual starting time of any ordinary working day
shall be deemed to expire at the completion of that day’s work.
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13.2.1(c) A tradesperson shall be allowed one hour prior to termination to
gather, clean, sharpen, pack and transport tools.
13.2.1(d) Nothing in this clause shall affect the right of an employer to
dismiss an employee without notice for misconduct or refusing duty.
...
13.4 Casual employment
13.4.1 A casual employee is one engaged and paid in accordance with the provisions
of this clause. A casual employee shall be entitled to all of the applicable rates and
conditions of employment prescribed by this Award except annual leave, personal
leave, parental leave, jury service, public holidays and redundancy.
13.4.2 An employer when engaging a person for casual employment must inform the
employee in writing that the employee is to be employed as a casual, stating by whom
the employee is employed, the job to be performed, the classification level, the actual
or likely number of hours to be worked, and the relevant rate of pay.
13.4.3 A casual employee may be employed by a particular employer on a regular and
systematic basis for any period not exceeding six weeks. If the employment is to
continue on a regular and systematic basis beyond six weeks the employee must then
be employed pursuant to clause 13.1 or 13.2 of this Award.
13.4.4 The provisions of 13.4.3 shall not apply to a casual employee who has been
engaged by a particular employer to perform work on an occasional basis and whose
work pattern is not regular and systematic.
(underline emphasis added)
[61] Clause 3.3 of the Agreement creates two categories of employee: “permanent
employees” and “casual employees”. Those expressions are not defined. However, under the
Agreement only “permanent employees” are entitled to paid annual leave, personal leave,
public holidays and to notice of termination and redundancy payments. The reference to
“casual employee” should be construed in the context of the underpinning award as having a
meaning consistent with clause 13.4.1 - that is, an employee engaged and paid as a casual
under the Agreement. [The Agreement operated to the exclusion of that underpinning pre-
reform award (clause 2). There is no scope for the operation of sub-clauses 13.4.3 and 13.4.4.
The Agreement was not obliged to replicate those provisions. The Agreement was certified
and thus had passed the ‘no disadvantage test’ in s.346D of the WR Act notwithstanding the
non-replication of those casual conversion provisions.]
[62] The case proceeded before the Commissioner on the assumption that the Employees
were engaged and paid as casual under the Agreement. It follows that, under the Agreement,
the Employees were “casual employees” and were thus “casual employees” for the purposes
of s.123(1)(c).
[63] We are satisfied that the Commissioner’s decision is affected by error and that we
should grant permission to appeal and do so. The appeal proceeds as a rehearing. On the
[2013] FWCFB 2434
16
rehearing, for the reasons we have given, we are satisfied that the Employees were “casual
employees” within the meaning of s.123(1)(c) excluded them from the notice and redundancy
entitlements in Division 11 of the NES.
[64] The appeal is allowed. The decision and “order” of the Commissioner are quashed.
The initiating application of the CFMEU is dismissed.
VICE PRESIDENT
Appearances:
Mr B Cross of Counsel with Mr N Noonan for the Appellant
Mr T O’Brien for the Respondent
Hearing details:
2013.
Brisbane
27 February
Printed by authority of the Commonwealth Government Printer
Price code J, PR535874
OF FAIR WORK COME AUSTRALIA THE SEAL
[2013] FWCFB 2434
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