Bryan Mueller, Bartlett Workplace

WorkPac Pty Ltd v Skene – An authoritative but also challenging decision of the Full Court of the Federal Court

The Full Court of the Federal Court decision, WorkPac Pty Ltd v Skene [2018] FCAFC 131, delivered on 16 August 2018, places an authoritative interpretation on the expression ‘casual employee’ in section 86 of the Fair Work Act 2009(Cth) (FW Act).

That provision operates to exclude casual employees from National Employment Standards (NES) annual leave entitlements and, hence, by assigning a meaning to that expression, the decision in effect operates to identify the range of employees who are entitled to receive the benefit of those entitlements and those who are not.

Because of the particular meaning the Full Court assigns to the expression ‘casual employee’ and the test it therefore effectively lays down for determining whether an employee is a casual employee for NES purposes, the decision will have significant ramifications for some employers who employ employees as casuals.

In short, the meaning attributed to the expression ‘casual employee[s]’ by the Full Court is likely to have the result that in some cases, employees to whom the label ‘casual employee’ is/has been applied and who have been/are therefore considered to be excluded from certain NES annual leave entitlements, are not actually casual employees that NES purpose, and therefore do have that NES entitlement.

For reasons explained below, those ramifications will extend beyond NES annual leave entitlements, flowing on to certain other NES entitlements such as notice of termination/payment in lieu of notice, and redundancy pay.

Having regard to this, it can be predicted that the decision will bring forth many claims for ungranted or unpaid NES entitlements by employees whose employment was or is labelled ‘casual’.

The decision gives a clear signal to any employer which has, or going forward does over time, employ employees as casual employees on what is or on what becomes a fixed pattern of days and ordinary hours of work, that they need to consider whether those employees, under the test derived from the WorkPac decision applied to the facts and circumstances relating to the employment of those employees, are properly categorised as casual employees for various NES entitlement purposes. If according to the test they are not casual employees, then the employees do need to be extended the benefit of the various NES entitlements concerned.

The decision resolves the casual employee question presented in the case by employing a particular and quite elaborate course of legal reasoning. Although later in this note it is suggested that the way in which the reasoning is framed (i.e. as essentially concerning a contest between the ‘legal meaning’ of casual employee and the meaning which WorkPac contended the expression had) might be questioned, and also that the test derived presents challenges conceptually and practically, this is not to imply that there was or is some alternative answer simply reached in relation to the question presented. The question of what constitutes casual employment generally and in any particular context, and what are its defining features for a long time has been recognised as not easily answered.

As a final introductory comment, placed in the frame of wider policy debates regarding contemporary employment practices and what is referred to as a trend towards ‘insecure work’, it can be said that the Full Court decision, to an extent, may apply a brake on that trend.

In that respect, it could be said to represent something of a victory for those concerned about what has been identified as the increasing casualisation of the Australian workforce; although at the same time, it is possible conceive that some of the employment arrangements that might be devised to respond to the decision, will produce employment arrangements that are both in form and substance less secure than the ‘casual’ arrangements which they replace.

 

Facts and issues in the case

As mentioned above, the central question in the case was whether or not the employee concerned was a casual employee within the meaning of that expression in s.86. In that regard, section 86 provides that the NES annual leave entitlements for the provisions of Division 6 of Part 2-2 of the FW Act (ss.86 to 94) provide do not extend to casual employees. Section 86 states that ‘this Division applies to employees, other than casual employees’. [1]

The facts and circumstances of the employee’s employment are related in paragraphs [15] to [35] of the Full Court decision.

The full facts and circumstances were critical to the legal result and an appreciation of them in full is equally important to a complete understanding of the reasoning and principle expressed in the decision.

That said, some of the most salient facts and circumstances were as follows:

  • The employer, WorkPac, supplied labour to mining companies
  • The employee concerned applied for and obtained employment with WorkPac as a dump truck driver assigned to work at an Anglo Coal mine in central Queensland. He commenced working there in late April 2010 and continued to work there for about 4 months on a ‘drive in drive out basis’ on shift rotation i.e. a number of consecutive days of work and then had a number of consecutive days at home.
  • The offer of employment he received before commencing that employment was styled an offer of casual employment. However, the document he received entitled terms and conditions of employment did not contain a definitive statement that the employment to which it applied was casual employment and only casual employment – rather it stated: ‘Employment with WorkPac is on an assignment-by-assignment basis, with each assignment representing a discrete period of employment on a Casual or Fixed Term hourly basis.’
  • Towards the end of his fourth month of employment at the Anglo Coal mine, the employee successfully applied to WorkPac for employment in driver position at another mine, conducted by Rio, this time a ‘fly in fly out’ position. He began employment in that position a couple of days after finishing at the Anglo Mine.
  • In relation to that second phase of employment, he was told that the position involved 12-hour shifts, on “a 7 days on, 7 days off” roster arrangement. He was also told that after a probationary period of three months, he would be made a permanent employee. Again, he received an offer of employment document which was styled as an offer of casual employment. However, amongst other things, that document stated that the employee’s hours of work would be a standard work week of 38 hours and that additional reasonable hours may be worked in the rostered arrangements.
  • At an induction performed by an employee of the mine operator, the employee was informed that his hours of work would be 12.5 hours per shift on a 7 days on, 7 days off continuous roster arrangement and that he was assigned to a particular rostered shift crew.
  • The employee proceeded to work on his assigned shift crew on 12 hour shifts on a 7 days on, 7 days off continuous roster arrangement. (It could be said that he was, in effect, integrated into the shift arrangements applying to full time employees doing his type of work.) In both January 2011 and January 2012, he was provided with a 12-month roster in advance and he worked in accordance with those rosters as part of the same roster crew. His employment on that basis continued until a date in April 2012.[2]
  • The employee was paid weekly, being required to fill out a weekly time-sheet and he was paid for the hours he worked at a flat hourly rate. The judge at first instance Full Court concluded that the employee was not paid a ‘casual loading’. The Full Court noted that but considered the question also on the hypothesis that a casual loading was paid.[3] His employment was stated to be terminable on one hour’s notice.
  • The employee’s employment with WorkPac was covered throughout by an enterprise agreement. That agreement contained terms that provided annual leave entitlements including as regards accrued annual leave payment on termination that were more beneficial than NES annual leave entitlements. Under the terms of the enterprise agreement, those entitlements were conferred on permanent employees (called ‘permanent FTMs’) – casual employees (called ‘casual FTMs’) were excluded from them.

On termination, the employee claimed that he was not a casual employee as referred to in s.86 and that he was therefore entitled under the NES annual leave provision in s.90(2) of the FW Act to be paid untaken annual leave on termination.

The employee also claimed that the ‘not a casual employee’ conclusion for which he contended for NES annual leave entitlements also flowed through to the terms of the enterprise agreement which covered his employment, and that he was therefore entitled to the more beneficial payment in lieu of annual leave prescribed by that agreement.

At first instance, the judge in the Federal Circuit Court held that the employee was not a casual employee within the meaning of s.86 and therefore that pursuant to s.90(2) of the FW Act he was entitled to be paid untaken annual leave on termination.

As to the enterprise agreement payment of accumulated annual leave entitlement, the judge at first instance held that, as a matter of construction, the relevant terms only applied to permanent FTMs excluding casual FTMs, and that whether or not an employee was a casual FTM turned on the terms of engagement; and that on the facts the employee was engaged as a casual FTM not a permanent FTM and therefore the employee was not entitled to the enterprise agreement level of annual leave payment.[4]

 

Conclusions and reasoning of the Full Court

On appeal, in a judgment of the Court, the Full Court of the Federal Court:

  • affirmed the decision of the trial judge that the employee was not a casual employee within the meaning of that expression in s.86 of the FW Act, undertaking an extensive discussion of the decisions and other considerations bearing on that question, and arriving at a meaning to be attributed to that expression in s.86 which the Court held as applied to the facts yielded the conclusion that the employee was not casual employee.
  • reversed the conclusion of the trial judge that the employee was not entitled to the enterprise agreement annual leave termination payment – the Full Court held that he was entitled to that benefit. The essential basis of that conclusion was that the expression ‘casual FTM’ in the enterprise agreement was to be construed as having the same meaning as the expression ‘casual employee’ used in s.86 of the FW Act, and therefore the employee was not a casual FTM and not excluded from that enterprise agreement benefit.[5]
  • remitted the matters of the calculation of compensation payable to the employee and imposition of pecuniary penalty back to the Federal Circuit Court for determination in accordance with the Full Court’s decision.

On the principal question, the Full Court concluded that the expression ‘casual employee’ had an established legal meaning and that the expression has that meaning in s.86.[6]

The Full Court rejected what was described as WorkPac’s principal contention, namely, that the expression ‘casual employees’ in s.86 was to be read as a reference to those employees of an employer who fall within the class of casual employees as that class of employees is described/defined in the industrial instrument applicable to the employee – in the case, the WorkPac enterprise agreement.

The Full Court’s explanation of the legal meaning of the expression casual employee is contained in paragraphs [170] to [184] of the decision and it includes several illustrative examples. For ease of reference and understanding of this article, those paragraphs are set out at the end of this note.

It is fair to say that the paragraphs providing the explanation do not contain in one place a single, concise statement as to the legal meaning of casual employee. However, as several other bulletins about the decision have emphasized, the Full Court does firmly endorse a statement found in an earlier Full Court judgment (i.e. Hamzy v Tricon International Restaurants t/a KFC [2001] FCA 1589 at [38]) about what is the ‘essence of casualness [i.e. casual employment]’.

The endorsed passage from Hamzy runs as follows:

 ‘the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hour) the employee will work’ [7]

The approving references to that statement of the essence of casual employment are found at paragraphs [153], [169] and [172] of the Full Court judgment, with the Full Court stating in the latter paragraph that the ‘essence of casualness’ as referred to in Hamzycaptures well what typifies casual employment and distinguishes it from either full time or part time employment.’

Despite that endorsement, it may be noticed that the Hamzy statement approved by the Full Court is cast in terms that, read in isolation, suggest that the commitment referred to is a commitment of the employer and, in turn, to suggest that the critical question would be framed in terms of whether, looking at the facts objectively[8], the employer should be regarded as giving that commitment – with the matter of the employee’s objective position on the employment going forward being immaterial.

However, a reading of the whole of the paragraphs providing the explanation indicates that this is probably not so. In both paragraphs [171] and [172] the Full Court also refers to casual employment involving a ‘reciprocal’ commitment provided by the employee to the employer. Further, the illustrative example given in paragraph [175] of the decision also refers to the need for an advance mutual commitment to ongoing employment to be found in the facts.

That may be said to carry the plain implication that if, on an objective examination of the employment facts and circumstances, the employee concerned is not to be regarded as ‘providing’ (to use the Full Court’s language) a commitment to being available to work on an ongoing indefinite basis according to an agreed pattern of work, then the employee is properly classified as a casual.

Later in this note under the heading ‘Comments on the decision’, more detailed comments are made about the conceptual and practical difficulties associated with having the question of whether an employee is a casual employee turn on an objective determination of whether a ‘commitment’ of a particular kind is associated with the employment concerned.

Those conceptual difficulties are enlarged where the commitment for which an objective search is undertaken is a commitment ‘provided’ by both employer and employee. However, at this point of the note the focus is on distilling and formulating what has been decided by the Full Court as to the meaning of the expression ‘casual employee’ in s.86 passing over the ambiguity that on one reading exists in the decision and what are thought to be those difficulties.

In that regard, it is suggested that on the basis of a reading of the whole of paragraphs [170] to [184] of the decision, the conclusion reached by the Full Court about the meaning of the expression ‘casual employee’ in s.86 can be summed up as follows:

An employee is a casual employee where, on an analysis of the facts and circumstances concerning the employment of the employee concerned, it is objectively apparent [9] that there is not associated with the employment of the employee a firm advance [10] commitment from the employer (reciprocated by the employee) to that employment continuing indefinitely (subject to rights of termination) according to a basically fixed pattern of days and ordinary hours of work.

Below in this note, there is an endeavour to convert that meaning of casual employee into a test for determining whether an employee is a casual employee for relevant NES purposes.

At this point for completeness it is appropriate to also refer to the reasons for the Full Court’s rejection of WorkPac principal contention as mentioned above.

The Full Court explains its several reasons for that rejection in paragraphs [117] to [155] of the decision. Those reasons include that acceptance of the WorkPac contention would:

  • run counter to the legal hierarchy or priority established by the FW Act in relation to and as between the NES, awards and enterprise agreements.
  • despite the absence in the legislation of a clearly expressed intention, involve attributing to Parliament an intention to cede control over a significant definition used in the NES to the FWC or to industrial parties making enterprise agreements where it was foreseeable that doing so would likely to result in ‘a substantial differentiation in the accessibility of those standards to some employees as opposed to others, despite the fact that the true nature of the employments of all is the same’ and also that it may result in ‘the access of the same employees varying over time, as new enterprise agreements are made, despite the fact that the true nature of those employments has not altered.’
  • defeat the achievement of the evident purpose of the NES ‘minimum entitlement’ annual leave provisions being that employees whose employment as a matter of objective fact have non-casual characteristics, have access to and actually take the prescribed period of annual leave: [93],[125]-[126].

 

Consequences of the decision

Before moving to a formulation of the test derived from the decision, several observations can be made about the decision and its consequences:

First, it is important to note that: [11]

  • in relation to NES paid personal/carers leave entitlements, s.95 is to precisely the same effect as s.86 – employees who are ‘casual employees’ are excluded from those NES entitlements;
  • s. 123 also provides that the NES notice of termination and redundancy pay provisions do not apply to ‘casual employees’;[12] and
  • the categorisation of an employee as a ‘casual employee’ also has implications in relation to NES Parental leave and related entitlement provisions.

In each case, there would seem to be no compelling basis on which to say that the expression ‘casual employee’ in the provisions has a different meaning to the meaning which the Full Court in WorkPac has attributed to it in s.86.

Accordingly, it is suggested that the same test applies for determining whether and when an employee is a casual employee for the purposes of those NES entitlement provisions, and therefore the WorkPac decision has the same implications in respect of employee entitlement to those other NES conditions as it does in relation to NES annual leave conditions.

Second, the decision is authoritative (in that it a judgment of an appellate court and therefore binding as to its core propositions unless and until the High Court were to say otherwise [13]) and in that sense may be said to have brought certainty as regards the meaning of the expression casual employee in the relevant NES provisions and, more generally, as to what the meaning of that expression is where it is used in its legal sense.

However, it is important to appreciate that the test derived from the decision is heavily fact dependent and that it requires an evaluative judgment to be made on the facts about whether, objectively, the particular kind of commitment described in the decision is associated with the employment.

Also, the test has what may be described, for want of a better word, a ‘rolling’ or ‘ambulatory’ aspect to it – what is meant by this is explained later in this note and, later still, some of the possible difficulties that this aspect of the test generates are also mentioned.

Because of those things, at least in the short to medium term, it seems likely that the decision will generate a significant number of disputes as to entitlement during and/or at termination of employment, and in many cases those disputes will only be capable of being resolved through adjudication by way of application of the decision/test to the facts (whether that adjudication be by Commission arbitration in a dispute settlement context or by judicial determination in court proceedings).[14]

Accordingly, it will probably only be after the test is applied and adjudicated in a variety of cases and employment circumstances that its implications come to be fully understood, and that reliable judgments about what kinds of employment circumstances produce the conclusion that an employee is a ‘authentic casual employee’ for NES purposes, and what employment circumstances are liable to produce the conclusion that an employee who is labelled and treated as a casual employee is not an ‘authentic casual employee’ for those purposes.

Third, it is fairly clear that under the test derived from the decision, conclusions will be reached in a proportion of the cases that are brought that employees who have been or are labelled and regarded by their employer as ‘casual employees’ are not causal employees for the relevant NES provisions, with the consequence that those employees, contrary to what may have been thought to be the case, will have to be extended the benefit of those NES leave entitlements.

That outcome will often entail the need for the employer to make remedial payments (e.g. of accrued annual leave payments on termination, NES notice and/or redundancy payments on termination)[15] and/or require crediting and granting of certain accumulated NES leave entitlements from the time that it is judged that the employee was not a casual employee.

Further, as explained below, on the reasoning of the Full Court, it is apparent that this outcome may well be reached even though the employee concerned has been paid a casual loading intended to compensate them for the circumstance that they are not entitled to NES annual leave and other entitlements.[16]

Fourth, more specifically, the Full Court in reaching its conclusion rejected the various strands of reasoning and overall proposition found in the decision of the Full Bench of the Commission in Telum Civil (Qld) Pty Ltd v CFMEU [2013] FWCFB 2434.

In Telum, the Full Bench of the Commission, in short, held that the expression ‘casual employee’ in section 123(1)(c) of the FW Act – which excluded such employees from the benefit of the NES redundancy provisions – was to be read as referring to employees who under and according to the applicable enterprise agreement terms were designated and paid as such (or if no such agreement applied to their employment, then as referring to employees designated and paid as such according to the applicable modern award terms).

On that basis, the Full Bench in Telum held that construction workers who had been engaged as casuals and had been paid a casual loading in accordance with terms on those matters contained in the enterprise agreement that covered their employment, were casual employees for the purposes of the NES redundancy pay provisions, and therefore were not entitled to redundancy pay under s.123(1)(c) of the FW Act. That conclusion was reached notwithstanding that the employees worked regular hours systematically over time.

The decision in that case must now be regarded as based on erroneous reasoning and possibly as being incorrect as to result.

To the extent that the ‘casual employee’ employment practices and assumptions by construction sector employers (and employers in other sectors) have since relied on the Commission decision in Telum case, they need to be re-examined in light of the WorkPac Full Court decision. (In this regard, it may also be unsafe to assume that ‘daily hire’ employment arrangements are in every case unaffected by the reasoning in the WorkPac decision.)

 

Test derived from the Full Court decision

Taking the meaning that the Full Court has placed on the casual employee as summed up above and converting into a test, the following is how that test might be formulated:

 On a review of the relevant facts and circumstances concerning the employment of the employee concerned, can it be said that at a point of time in the employment (whether that be at the beginning or at a subsequent time), objectively speaking, there was or there became associated with the employment, a firm advance commitment from the employer (reciprocated by the employee) to the employment continuing indefinitely (subject to rights of termination) according to a basically fixed [17] pattern of working days and ordinary hours of work.

If the conclusion is that at no time did any such advance commitment become associated with the employment, the employment was and remained casual employment for the purposes of the relevant NES entitlement provisions, and therefore the employee was not/is not entitled to the benefit of those provisions.

If, on the other hand, in a case where an employee started off as a casual employee, but a person looking at the circumstances relating to the employment would reasonably conclude that such an advance commitment has subsequently become associated with the employment, from the time at which that is determined as having occurred, the employee has ceased to be a casual employee for the purposes of those NES excluding provisions, and therefore is entitled to the benefits of the relevant NES entitlements.

That conclusion, once reached, is not affected by the circumstance that a casual loading has been paid to the employee up to that point of time or is thereafter paid.[18]

As to the payment of a casual loading, while the Full Court indicates that the payment of a casual loading is not completely irrelevant to the question of whether the kind of commitment described is present or not [19], it is plain that under the Full Court’s approach it is to be treated in most cases as a relatively weak factor in support of the conclusion that an employee’s employment is casual; that is, it is weak in the sense of being quite capable of being displaced by other more ‘weighty’ indicators going to the objective presence of the identified kind of commitment. [The indicators of the defining non-casual commitment are referred to under the next heading in this note.]

The downgrading of the significance of payment of a casual loading is reflective of the Full Court approach to the construction of the expression ‘casual employee’ in s.86. At paragraph [147] the Full Court stated that if the employee concerned in the case was paid a casual loading when he need not be, that was not a legitimate basis for construing the expression ‘casual employee’ in s.86 in a way that picked up any employee who was paid a casual loading.

From this it is plain that the Full Court foresaw that a consequence of its decision would be that some employees who have received payment of a casual loading in intended compensation of them not receiving annual leave benefits, will ultimately come to also receive those annual leave benefits; that is, they will be able to ‘double dip’ as WorkPac put it. The Full Court just did not regard that consequence as providing a good legal basis for arriving at a construction of the expression ‘casual employee’ that prevented it from happening in some cases.

However, the Full Court’s conclusion does not necessarily mean that an employee labelled by an employer as a casual employee but who under the test is not a casual employee will always be entitled to any ‘more beneficial than NES entitlements’ provided by an applicable enterprise agreement to non-casual employees only.

As indicated above, the Full Court in WorkPac reached the conclusion that the exclusion of casual employees from annual leave entitlements prescribed by the enterprise agreement that was applicable in that case did not operate to exclude the employee concerned from those benefits.

It reached that conclusion by holding that, as a matter of construction of the enterprise agreement, the defined group of casual employees excluded was confined to casual employees within the legal meaning of that expression.

Hence, the Full Court decision allows that an enterprise agreement could exclude employees who are not casual employees for NES purposes from those benefits by inclusion of a definition of casual employee which gives a meaning to that expression which is different from the legal meaning (e.g. a definition which provided that casual employee in the relevant provisions means an employee who is engaged as such and paid a casual loading).[20]

 

Types of facts and circumstances relevant to the test

As emphasised, the test derived from the WorkPac decision is heavily fact dependent and involves an evaluative judgment as to whether a particular kind of commitment is/became associated with the employment of the employee concerned.

In that regard, the Full Court likened the approach to that used to determine whether a person is an employee (as distinct from, say, an independent contractor) stating in paragraph [180] of its decision the question of whether an employee is a casual employee in the legal sense turns on an assessment of ‘the conduct of the parties to the relationship and the real substance, practical reality and true nature of the relationship…’.

[Whether the analogy drawn by the Full Court is a strong analogy and serves to support the conclusion reached by the Full Court is queried in comments made on the decision below.]

One consequence of this is that, as the Full Court remarks at paragraph [178], an employee who is initially engaged as a casual employee can become, by reason of circumstances that occur during the employment and without any explicit agreement being reached between the employer and the employee, a non-casual employee for NES entitlement purposes.

This draws attention to what is referred to above as the ‘rolling’ or ‘ambulatory’ nature of the test – it is a test that, as it were, accompanies the facts and circumstances of a given employee’s employment as they occur, develop and possibly change over time; with the question being whether in the march of those employment circumstances, employment accompanied by an absence of the relevant commitment has become, at and from a particular point of time, employment accompanied by the presence of that commitment.

For example:

  • an employee may be engaged as a casual employee on the express or implied basis that they will be called upon to work on days and hours that are not fixed or predictable and/or without any commitment as to the length of the prospective period during which the employer will call on the employee’s services;
  • for an initial period of time, the pattern of the employee’s employment exhibits those features;
  • however, as time moves on, the days and the number of ordinary hours on those days that the employee is called upon to work and does work becomes consistent and that consistency is ongoing over a considerable period of time.

In those circumstances, even though neither the casual label applied to the employment or the hourly rate paid is changed over the course of the employment, it may well be that employment that started off as plainly casual, on application of the test has become, at and from a particular point of time, non-casual for NES entitlement purposes such as annual leave. That is to say, looking at the facts and circumstances objectively, from some particular point of time in the employment, a commitment to indefinitely continuing employment on a basically fixed pattern of days and ordinary hours of work can be seen to have ‘sprung up’ and become associated with the employment.

[Whether the Full Court decision fully develops the implications of this rolling aspect of the test to their logical conclusion in terms of the application of the test to the facts and circumstances of employment as they may evolve over time is queried in comments made on the decision below.]

In paragraph [173] of the decision the Full Court positively affirms that the broad indicia of casual employment are those as identified in the previous authorities as irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability.

But in that same paragraph, it is notable that the Full Court also states that ‘an irregular pattern of work may not always be apparent [on the exposed facts]’ but that the fact that this is not apparent ‘will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as ‘the essence of casualness’ will be absent’. That is to say, the Full Court does contemplate that the presence of a regular work pattern will not in every case mean that the employee is not a casual employee: see paragraph [174] of the decision extracted below for a hypothetical fact illustration of this given in the decision.

Again, at paragraph [182], the Full Court identifies at a high level the ‘key indicators’ of an absence of the relevant kind of firm advance commitment and therefore of an employee being a casual employee as being ‘irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee’.

Accordingly, the type of facts and circumstances which are relevant to the test are those which as a matter of ordinary logic would inform judgments about whether those characterisations can be given to the employment of the employee concerned.

In this regard it is also practically important to note that:

  • At paragraph [187] the Full Court expressed its agreement with a proposition that if the WorkPac enterprise agreement had defined or described an employee such as the employee concerned as a casual employee, that fact would have been a relevant factor to be taken into account in determining whether the defining non casual commitment was present or absent, and also that a designation of an employee as a casual employee in a contract would be a relevant factor in that determination.
  • At paragraph [189] the Full Court dealt with WorkPac’s contention that the engagement of the employee by the hour was a relevant factor. On that factor it said: ‘While that may be a relevant factor in some circumstances, it is “not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period” (Melrose Farm at [106]). Further, as McTiernan J said in Doyle at 565, “[e]ngagement at an hourly rate is not a criterion of casual employment as distinct from regular employment”.
  • At paragraph [191] the Full Court in dealing with WorkPac’s contention that a relevant factor was that the employee’s employment could be terminated on an hour’s notice, said that while it accepted that termination on very short notice may be a relevant factor it was not a factor necessarily indicative of casual employment remarking that ‘subject to any regulatory restriction, contracting parties are free to provide for termination on short notice for any kind of employment.’

 

Further comments on the decision 

(1) As mentioned, WorkPac’s principal contention in the appeal is characterised by the Full Court as a contention that the expression ‘casual employees’ in s.86 was to be read as a reference to those employees of an employer who fall within the class of casual employees as that class of employees is described in the applicable industrial instrument – in the case, the WorkPac enterprise agreement.[21]

That contention and the competing contentions made on behalf of the employee  concerned and the matter overall, are treated by the Full Court as having the consequence that the main question on this part of the case is really this: did Parliament intend that the words casual employees in s.86 be used in their ordinary sense, their legal sense….or the specialised non-legal sense which WorkPac contended was common to federal instruments?[22]

It may be said that the premise of that statement of the question in the case is that expression ‘casual employee’ prior to the rendering of the Full Court’s decision had acquired a definite legal meaning. It would seem to follow, that the definite meaning was well able to be found expressed in the authorities reviewed.[23]

Perhaps a criticism that could be levelled at the Full Court’s decision is that:

  • its own survey of the authorities on the meaning of the concept of casual employee demonstrates that up to the WorkPac decision itself there was no real, definite and authoritative consensus on the meaning of the expression ‘casual employee’ or ‘casual employment’ in those authorities;
  • that it is the Full Court’s decision itself that represents the first substantial synthesis of the authorities carried out with the aim of giving a definite legal meaning to the concept of casual employee;
  • it is therefore the Full Court’s decision which marks the first arrival on the legal scene of that definite legal meaning. This being confirmed by the fact that the meaning arrived at is produced through a considered and discriminating selection of the propositions or elements from the authorities surveyed, and the liberal addition of further analysis and considerations judged to be relevant by the Full Court, an exercise which is in itself inconsistent with the notion that the concept of casual employee had already acquired a legal meaning.

If that is correct, it may be said that it is difficult to sustain the proposition that the expression ‘casual employee’ in s.86 had its legal meaning (which the legislature can be presumed to have appreciated in enacting s.86 and its analogues in other NES provisions). How could it if there was no such ascertainable and substantially uncontentious legal meaning found in the authorities up to that point?

Of course, it may be rejoined that this criticism is misplaced, on the basis that it was possible by close examination of the existing authorities to discern a basic consensus as to what rendered an employee a casual employee, and all the Full Court did was to carry out that close examination and pinpoint that common consensus or thread of agreement in the decisions.

Further, it may be added that even if this ‘method’ criticism is well founded, it does not follow that the analysis of the authorities and conclusion reached by the Full Court as to the meaning of casual employee in the NES provisions is incorrect.

(2) As mentioned above, the Full Court likened the method of determining whether an employee is a casual employee as derived from the meaning it gives to the concept, to that method used to determine whether a worker is an employee or independent contractor. However, it could be argued that the analogy is somewhat limited.

While the analogy holds insofar as the Full Court approach to the determination of whether an employee is a casual employee focuses on matters of factual substance not form, involves a multifactorial approach, and is objective, the analogy probably ends there at that basic level.

The Full Court’s approach to the determination of whether employment is casual is one in which all relevant matters are funneled into answering a single, quite narrow but at the same time determinative question, namely, whether the identified kind ‘commitment’ is present or absent in the relationship objectively speaking. As suggested in the next comment below, this question is one which can be described going to the manifested ‘state of mind’, outlook or attitude to be attributed to the parties as regards the nature and content of the employment going forward.

It is suggested that this is not strongly analogous to the ‘employee test’ approach. At the end of the day, that approach is not directed to a narrow and determinative question about the parties state of mind or outlook as objectively ascertained but, putting it broadly, whether judged on an objective analysis of all the relevant facts and circumstances the relationship presented is one where the worker is in the service of the other party for whom the work is performed as distinct from a relationship in which the worker is providing their services in the course of their own business.

(3) Putting to one side the question whether the analogy to the employee test is sound and supports the Full Court’s reasoning and conclusion, in any event it can be suggested that the selection of the matter of ‘commitment’ of the kind identified by the Full Court as the casual employee touchstone brings with it certain conceptual difficulties flowing into practical difficulties.

As suggested above, the matter of ‘commitment’ might be referred to as involving a state of mind as to future conduct on the subject of the nature and content of future employment which in its outward manifestation carries something in the nature of a pledge or undertaking as to that matter moving from one party to the other.

The conceptual problem is that in a relationship that exists in and over time, the conclusion reached objectively about the presence of the identified commitment may well vary according to the point of time in the relationship that the question is asked.

To illustrate, if a timeline of employment of a particular employee over time is produced, and a point of time selected in that timeline, it may well be the case that on application of the test at this first selected point of time, the objective conclusion on the facts presented up to that point of time would be that the presence of the commitment is not established, with the consequence that the conclusion is that the employee is a casual employee at that point of time or was before.

However, if a point of time, say, 6 months later in the timeline is selected, the actual facts and circumstances of the employment in that 6 month period could be such as to objectively suggest that there was such a commitment, and may easily lead the court or tribunal to slide into a conclusion looking backwards that there had always been the necessary commitment.

If the employee brings an action in which they claim that they were not a casual employee at any time and therefore have corresponding annual leave entitlements, do they fully succeed or not? Is the employer entitled to contend that the issue should be decided at several points of time over the course of the employment and, if not, why not? Further, if it is conceded that on the logic of the Full Court test the employer is able to run that argument, on what basis are the points of time selected?

This would seem to be not merely an arid technical point.

It is plain enough that there is no accrual of annual leave while the employment in which the employee concerned is casual employment. Accordingly, to determine the extent of liability, it would follow that conclusions have to be reached about the point of time at which a commitment of the kind identified by the Full Court became associated with the employment. It would seem to follow also that whenever that point of time is or is to be alleged to be, the question to be addressed is whether at that time a commitment of the kind identified was present and, if so, did it continue to be associated with the employment.

It therefore might reasonably be suggested that the first question should be answered according to the facts and circumstances of the employment as they had arisen to that point of time, and generally not by reference to facts and circumstance that arose later in the employment.

In this respect, it may be said it is fair to attribute the existence of commitment in a party at a particular point of time by reference to an objective evaluation of the facts and circumstances as they had transpired to that point of time, but it is another thing altogether to saddle a party with having such an objectively found commitment and with its concomitant legal obligations at that time by heavy reliance on facts and circumstances that had not yet occurred at that point of time. It may be said that an attribution of commitment of the identified kind at a point of time by reference to employments events that have occurred after the point of time concerned is to risk the returning of a ‘false positive’.

In this regard, the Full Court analysis in WorkPac does not seem, in a temporal sense, to segment the employment in that case according to various developments in the employment, and to consider the commitment question in relation to such segmented periods of time.

It may be that this is simply a product of the facts and circumstances of the particular case and the way it came to present itself for determination. However that may be, it is suggested that while the matter is not explicitly dealt with in the decision, in order for some future cases to be decided it will be necessary to work out from the reasoning in the Full Court decision whether:

  • it is saying that the presence or absence of the commitment issue can be determined in all cases by looking at the whole of the facts and circumstances of employment as they have accumulated to one selected end point of time in the employment (e.g. as at termination of the employment – because the entitlement concerned was an entitlement that arose on termination, as appears to have been done by both the Court at first instance and the Full Court in WorkPac); or
  • alternatively, whether it is inherent in the Full Court’s selection of the presence or absence of a particular kind of commitment as the defining criterion, that in appropriate cases the test will need to be applied at various points of time (somehow selected) in the period of employment on the facts and circumstances that had transpired only to each such point of time.

Although the WorkPac facts are not perhaps the best vehicle by which to make the point, the potential problem with this unresolved aspect of the test can be brought into relief by simply asking on the facts in WorkPac: ‘What if the employment had been terminated well before the second phase of the employee’s employment – would it have been properly found that the reciprocated commitment to ongoing work according to agreed days and ordinary hours of work was always present and, if not, how can that be reconciled as a matter of principle and logic with the finding ultimately made that the employment was never casual?’

(4) Earlier in this note it has been suggested that, despite the Full Court’s firm endorsement of the Hamzy ‘essence of casualness’ statement, it is not clear on a reading of the whole of the Full Court’s explanation that the Full Court should be treated as putting that statement forward as carrying the complete casual employee definition or test. As observed, the Full Court also refers in unmistakably clear terms to the existence of a reciprocal or mutual commitment from the employee of the necessary kind – something not obviously conveyed as necessary by the Hamzy essence of casualness statement.

If it is correct to read the Full Court decision as saying that in a contested case the commitment test for determining whether an employee is not casual employee has a two-sided aspect, the following related matters arise:

  • without denying that equivalent commitments can be held/given by several persons or bodies, it may be said the notion of a commitment is only intelligible as a concept when used in relation to a particular natural person or some kind of collective body (whether incorporated or not) i.e. that it is inherent in the notion of commitment (like that of intention) that it is a thing which belongs to, and which can only be assessed in relation to, a particular person or body, and the question must always be posed and addressed in terms of whether a particular person or body had/exhibited the relevant commitment.

If the relationship under consideration is two-sided, and it is said that the commitment must be mutual (i.e. reciprocated), then on this perspective logically an inquiry into the existence of the required commitment in each counter-party should be carried out, and a distinct, reasoned conclusion reached as to existence of the commitment in each party. Only if both parties are found to have ‘provided’ the commitment (as assessed objectively) can it be properly said that a reciprocated or mutual commitment of the relevant kind is associated with the employment.

In that regard, it may be said that it is necessary at an appropriate time before a conclusion on the commitment issue is reached, to allocate the facts and circumstances relevant to the commitment issue as they pertain to each party, so that a sound and distinct conclusion can be separately reached in relation to the commitment issue in relation to each party. That it would be an error to roll both the facts and the inquiry into one, and somehow reach a conclusion on the unallocated facts that both parties (as if they were one) are to be regarded as giving or as having given the required mutual commitment.

Again, it would be said that to do that, would be to risk arriving at false positives concerning the question of the relevant commitment being held/provided by one or other of the parties.

  • Next, in any event, what does the posited reciprocal commitment that needs to be objectively attributed to the employee comprise?

Is it a reference to something as simple as an apparent (i.e. objectively assessed) continued readiness in the employee to attend for work according to the fixed patterns of work days and ordinary hours as distinct from, say, a situation where the facts indicate that the employee treats themselves as able to decline offered work as might a ‘true’ casual? Are there other things that can enter into it?

  • Following on from this, what evidence is admissible on this two-sided commitment issue? If the test involves both employer and employee dimensions, then this has significant implications for the range of evidence that might be adduced on the ‘commitment’ issue and for the matter of cross-examination on that issue – plainly the range of relevant evidence will be that which, objectively speaking, bears upon the forward outlook of the employee in relation to the employment as well as that of the employer.

In a contested case, under the test carried by the Full Court decision, would it be permissible for one party to direct questions to the other about the matter of the other party’s subjective outlook on employment going forward as held at a particular point of time in the course of the employment? Would answers to such questions be admissible at all?

In concrete terms, if the question was asked of the employee concerned about their ‘employment commitment’ at a particular point of time in the employment and answered frankly (before anyone twigged to object) as follows: ‘ Well, even though in the 6 months up to the time you are talking about I did without fail attend for work according to the roster I had been earlier given, I have to say I didn’t regard myself obliged to do so at least up to that point of time; in that period of time I was told I was a casual and regarded myself as a casual’, can regard be paid to that answer at all and, if so, what weight is to be attached to it – even though it is evidence of the employee’s subjective state of mind would it be correct to treat it as admissible perhaps as a type of admission against interest effectively concluding the issue of the presence or absence of the relevant commitment up to that point of time regardless of the objective conclusion that may be drawn from other then existing or subsequently arising facts concerning the employment?

 

Bryan Mueller

Bartlett Workplace Lawyers & Consultants

13 September 2018

Note: Footnotes follow the paragraphs extracted from the Full Court decision

Paragraphs of Full Court Decision in WorkPac explaining the [legal] meaning of expression ‘casual employee’

[170] What needs to be recognised is that the expression “casual employee” describes a type of employment that, at least in part, takes its meaning from other recognised types of employment. Beyond the reference made to casual employees, there is extensive reference made in the FW Act to two other types of employees – full-time and part-time employees (including, in Pt 2–2 at ss 62(1), 63(1), 64(1) and 114(4) in respect of full-time employees, and ss 65(1B) and 114(4) in respect of part-time employees). This reflects the reality that the vast majority of employees in Australia conveniently fall into one of three categories – fulltime, part-time or casual. Another type of employee also extensively referred to in the FW Act is a “shiftworker”, but a shiftworker will usually also be a full-time, part-time or casual employee.

[171] A “type” of anything is usually distinguished by a characteristic or perhaps several characteristics not present in other categories of a like nature. The characteristic that distinguishes full-time and part-time employment is that those employments are on-going (sometimes called “permanent”) employments. On-going employment does not mean lifelong employment (McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594 at 601 (Lord Goddard); Haley v Public Transport Corporation of Victoria [1998] VSC 132; (1998) 119 IR 242 at [82] (Ashley J) but on-going employment is employment for an indefinite term subject to rights of termination (McClelland at 601 (Lord Goddard)). It is characterised by a commitment by the employer, subject to rights of termination, to provide the employee with continuous and indefinite employment according to an agreed pattern of ordinary time (as distinct from overtime) work. A corresponding commitment to provide service is given by the employee. What distinguishes a full-time employee from a part-time employee is the pattern of work agreed to. A full-time employee’s pattern of work will be the ordinary full-time hours applicable at the particular workplace (e.g. eight hours each week-day). A part-time employee’s pattern of work will be a fixed number of ordinary hours, the number of hours being less that the full-time ordinary hours applicable at the workplace, worked at a regular time on regular days (e.g. 9.00 am to 1.00 pm every Monday, Tuesday and Thursday).

[172] In contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. That characteristic, drawn from Hamzy, is what White J referred to in more general terms in South Jin at [71] as “any commitment by the employer or the worker to ongoing employment”. In our view, what is referred to in Hamzy as the “essence of casualness”, captures well what typifies casual employment and distinguishes it from either full-time or part-time employment.

[173] The indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance commitment of the kind just discussed. An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the “essence of casualness”, will be absent.

[174] This is best illustrated by example. A relief teacher is employed by a secondary school to relieve a teacher ill with the flu. She is employed for 10 consecutive school days. On the ninth day she is asked to relieve a teacher taking two months long service leave. That takes her employment through to the end of the school term. A few days into the new term, the relief teacher relieves for another teacher who has unexpectedly been dismissed and works for a month until a replacement for the dismissed teacher is found. And so the pattern continues for 12 months. Whilst irregularity was not a feature of the employment, at no time during the 12 month period was the teacher other than in casual employment because at no time was there a firm advance mutual commitment to on-going employment on an agreed pattern of ordinary hours of work. It just happened that the teacher’s work turned out to be regular.

[175] A second example may be illustrated by reference to a researcher employed by a university as and when funding grants for particular scientific research become available to fund the employment of an additional researcher. Funding grants are short-term and whether or not the university will succeed in obtaining funds is unpredictable. In a particular year the university is successful in winning several grants across a number of research projects. That results in the researcher moving from one project to the next but being regularly employed for over 12 months. Unpredictability as to the availability of further work for the researcher meant that at no point in the 12 month period was an advance mutual commitment to ongoing employment on an agreed pattern of work a characteristic of the employment. Despite the regularity of the employment, the researcher remained a casual employee over that period.

[176] Each of those employees would likely meet the definition of “long-term casual employee” in s 12 on the completion of a 12 month pattern of employment of the kind which the examples illustrate. At the end of such a period, each will be a casual employee having been employed by their employer “on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months”. If the employee had a reasonable expectation of that pattern of employment continuing, the FW Act provides the employee with access to flexible working arrangements (s 65(2)(b)) and parental leave (s 67(2)).

[177] The discussion has sought to emphasize that, in their ordinary conceptions, casual employment and full-time and part-time employments are mutually exclusive categories of employment. An employee cannot be both a casual employee and full-time or part-time employee at the same time in the same employment. The features that distinguish one from the other are important to bear in mind in the characterization process.

[178] It is also necessary to bear in mind that employment arrangements may change during the course of an employment. What is agreed to at the commencement of an employment is relevant to the characterization process, but an employment which commences as casual employment may become full-time or part-time because its characteristics have come to reflect those of an ongoing part-time or full-time employment.

[179] As Buchanan J said in Ledger at [62]:

It must be accepted that, over time, repetition of a particular working arrangement may become so predictable and expected that, at some point, it may be possible to say that what began as discrete and separate periods of employment has become, upon the tacit understanding of the parties, a regular ongoing engagement (for an example of historical interest, see Cameron v Durning [1959] AR (NSW) 142).

[180] The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed. This is now the settled approach to the question of whether a person is an employee: see Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 at [142] (North and Bromberg JJ) citing R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10; (1952) 85 CLR 138, at 151 and 155 (Dixon, Fullagar and Kitto JJ); Vabu at [24], [47], [57], [58] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ); ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 232 ALR 69 at [25] and [31] (Wilcox, Conti and Stone JJ); Damevski v Giudice (2003) 133 FCR 438 at [77]–[78] (Marshall J, with whom Wilcox J agreed) and [144], [172] (Merkel J); Dalgety Farmers Ltd t/as Grazcos v Bruce (1995) 12 NSWCCR 36 at 46–48 (Kirby ACJ, with whom Clarke and Cole JJA agreed); Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] 4 All ER 745 at [22], [25]–[26], [29]–[32] (Lord Clarke SCJ, with whom Lord Hope DP, Lord Walker, Lord Collins and Lord Wilson SCJJ agreed). See also ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 at [29] (Perram J); and on appeal ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [93] and [102] (Buchanan J, with whom Lander and Robertson JJ agreed). In such an assessment “the nature of the relationship may be legitimately examined by reference to the actual way in which the work was carried out”: Ace Insurance at [91]. The same approach is appropriate to adopt in determining the nature of the employment relationship. It is the approach adopted in MacMahon (at [38]) and apparent from the reasoning in Reed (at 424), Hamzy (at [38]), Melrose Farm (at [101]-[105]), Bernardino ([18]-[23]), Ledger (at [62] and [65]) and South Jin (at [138]-[152]) discussed above and also CPSU, Community & Public Sector Union v State of Victoria [2000] FCA 14; (2000) 95 IR 54 at [10] (Marshall J). In Reed, Moore J at 424 said this:

The characterisation of Reed’s employment by either Reed and/or representatives of the Company generally or in a document, and the provisions of the Award, are simply matters to be taken into account in determining the true character of the employment.

[181] Whether the requisite firm advance commitment to continuing and indefinite work (subject to rights of termination) is absent or present must be objectively assessed including by reference to the surrounding circumstances created by both the contractual terms and the regulatory regime (including the FW Act, awards and enterprise agreements) applicable to the employment.

[182] The payment by the employer and the acceptance by the employee of a casual loading, like the description of the type of employment given by the parties in their contractual documentation, speaks to the intent of the parties to create and continue a casual employment. But the objective assessment will need to consider whether that intent has been put into practice and if achieved, has been maintained. The objectively demonstrated existence of a firm advance commitment to continuing and indefinite work (subject to rights of termination) according to an agreed pattern of work will ordinarily demonstrate a contrary intent and the existence of on-going full-time or part-time employment rather than casual employment. The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question. Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.

[183] In this case, the primary judge found (at [85]) that the essence of casual employment as described in Hamzy (and applied in MacMahon) was missing in relation to Mr Skene’s employment. His Honour did so having found (at [81]) that Mr Skene’s pattern of work was “regular and predictable”, “continuous” and “not subject to significant fluctuation” in circumstances where “there was plainly an expectation that Mr Skene would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster” (set 12 months in advance).

[184] WorkPac’s contention that the primary judge erred because what he regarded to be the essence of casual employment cannot be the essence of casual employment under the FW Act must be rejected. Nor, was there any error in the primary judge’s reliance upon the regularity, predictability, certainty and continuity of the pattern of Mr Skene’s work.

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Footnotes to article

[1] i.e. Division 6 of part 2-2 ‘Annual Leave’

[2] Paragraph [8] of the Full Court decision refers to the employment with WorkPac lasting to April 2014, but it is clear that that is a typographical error – other facts related in the judgment (see para [24]) and the decision at first instance show the employment terminated in April 2012 after about 24 months employment.

[3] see paragraph [147] of Full Court decision.

[4] see Full Court Decision paras [39]-[42]; [193].

[5] see Full Court decision esp [203], [222]-[227].

[6] Full Court decision at [155]

[7] It may be noted that having referred to that passage from Hamzy in paragraph [169] the Full Court immediately goes on to say ‘That insightful description needs to be further explored so as to expose its rationale’ – a statement which might ordinarily be taken to suggest that the Full Court considered that the Hamzy passage was not in its view something that provided a wholly perfected statement of what constituted casual employment or that it should be treated as such – rather that there was something more to explore and expose.

[8] See footnote 9 below as to the objective nature of the search for a commitment of the identified kind.

[9] At [159] the Full Court said that it may be accepted that ‘whether any particular employee is a casual employee depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all of the circumstances’(underlining added), and that at paragraph [181] the Full Court in speaking generally as the legal concept of casual employment said that ‘the requisite advance commitment to continuing and indefinite work (subject to the rights of termination) is absent or present must be objectively assessed by reference to the surrounding circumstances created by the both the contractual terms and the regulatory regime (including the FW Act, awards and enterprise agreements) applicable to the employment’ (underlining added); see also the reference to the objective nature of the assessment in paragraph [182].

[10] The word ‘advance’ is included as a qualifier to the word ‘commitment’ in the summation of the meaning that the Full Court placed on the expression/concept of a ‘casual employee’ because the decision uses the phraseology ‘advance commitment’. However, it might be said that given the word ‘commitment’ inherently speaks to future (i.e. as a matter of ordinary language it could be said to refer to an undertaking or pledge that a thing, such as a course of action or particular state of affairs, will be taken, brought about, maintained, observed), it is not clear whether the use of the word ‘advance’ adds or is intended to add anything of significance to the formulation, other than perhaps to serve to emphasize that the objective assessment answers a question posed at a particular point of time as to a party’s intention or, if not intention, then perhaps the party’s ‘position’ or ‘state of mind’ on a particular matter going into the future as objectively manifested to the other party.

[11] At paragraphs [94] to [102], the Full Court decision refers to the full range of NES entitlements in respect of which categorization of an employee as a casual employee is relevant.

[12] See the reference to the ‘over-ruling’ of Telum decision in the fourth comment below.

[13] It is not presently known whether the decision will be subject to an application for special leave to appeal to the High Court.

[14] It is also noted in the context of court proceedings that a failure to pay/extend NES benefits constitutes a contravention of s.44 of the FW Act, that s.44 is a ‘civil penalty provision’ and therefore pecuniary penalties can be sought and imposed for such contraventions.

[15] Time limitation on recovery actions may need to be addressed in this context.

[16] see Full Court decision at paragraph [182]. Note also that where entitlement to monetary payment is in issue, questions of ‘set off’ and the difficult principles associated with that legal concept may well come into play as paragraph [147] of the decision flags.

[17] The Full Court at paragraph [171] speaks of a casual employee as an employee who ‘has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work’ (underlining added). The phrase ‘agreed pattern of work’, at one level at least, suggests that there must be some quite distinct, overt agreement between the parties as to the pattern of work going forward to render an employee not a casual employee. But it is suggested that that would be an overly literal reading of what the Full Court has said in the passage cited. The meaning given to the expression casual employee by the Full Court is one which trains the focus essentially on the way the employment is conducted over time and what is to be inferred from that as to the matter of ‘commitment’ going forward, downplaying the relevance of what is ‘agreed’ (in the narrow sense of that word) between the parties, say, in written terms. Putting this in concrete terms, it is suggested that the Full Court’s reasoning means that a document subscribed by the parties that stated that there was no promise or agreement to fixed hours of employment going forward while certainly relevant would not shut out a conclusion that there was an ‘agreed’ pattern of work for the purposes of the test – what is stated in the written document might be displaced by the facts concerning the conduct of the employment over time.

[18] The payment of a casual loading, according to the reasoning of the Full Court is not, however, completely irrelevant to the reaching of the conclusion of whether the requisite advance commitment is present or absent – see [182].

[19] Paragraph [169] of the Full Court decision.

[20] Separate thought may need to be given as to whether that approach raises any BOOT compliance issue in the particular circumstances of the case.

[21] see paragraph [70] of the Full Court decision.

[22] paragraph [114] of the Full Court decision. [As the High Court has observed in several decisions, in the context of statutory construction, references to Parliamentary intention or purpose are not references to Parliament’s subjective purpose or intention, and the exercise of statutory construction does not involve ascertaining or attempting to ascertain the subjective intention or purpose of Parliament; rather it is a reference to that intention or purpose as ascertained by the application of the processes and principles of statutory construction. The passage cited is to read in that way, as is evident from the discussion of applicable principles and observations concerning the exercise of statutory construction that precede that paragraph.]

[23] see the discussion of applicable principles and approaches to the construction of words/concepts such as casual employee in paragraphs [104] to [113] in the Full Court decision esp the reference to observation made by McHugh J in Gamer’s Motor Centre(Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 at 495 and to the identification in Pearce and Geddess: Statutory Interpretation in Australia to a category of ‘legal technical words’, they being words ‘that have acquired a legal meaning including words which describe an established legal concept or construct’.(underlining added)