Australia: Focus on temporary employment – two recent cases put employers on notice about entitlements and rights for temporary and casual workers under the Fair Work Act

Last Updated: 21 February 2018
Article by Belinda Winter, Annie Smeaton and Sandra Barry

Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 – fixed term employment and dismissal at the initiative of the employer

FACTS

The employee was employed as a casual teacher from 2005 to 2012.

In April 2012, the employer offered the employee employment as a 'fixed-term teacher' until 30 June 2013, with the letter of appointment stating that either party could terminate the employment by providing 4 weeks' notice. After the completion of the first fixed appointment, the employer offered the employee another fixed term engagement on the same terms but for the period 1 July 2013 to 30 June 2014, which the employee accepted.

In June 2014, the employee was told that his work had not been satisfactory and his employment contract would not be renewed. Following discussions between the employer and the employee, the employer offered the employee a further fixed term of employment to 30 June 2016, which the employee accepted.

On 31 May 2016, the employer informed the employee that, because of his disciplinary record and poor performance, he would not be offered further employment. His employment ended on 30 June 2016.

The employee lodged an unfair dismissal application in the Fair Work Commission (FWC).

DECISION

At first instance, the FWC held that the employee's employment terminated at the expiry of his fixed term employment contract and, based on the decision of the Full Bench of the Australian Industrial Relations Commission in Department of Justice v Lunn,1 there had been no dismissal at the initiative of the employer for the purposes of section 386(1)(a) of the Fair Work Act 2009 (Cth) (FWA).

APPEAL

The employee appealed to the Full Bench of the FWC.

The Full Bench held that the employee was permitted to bring an unfair dismissal application under the FWA because the correct approach for determining whether the expiry of fixed employment is a 'dismissal at the initiative of the employer' is by reference to the employment relationship as a whole, rather than the termination of the fixed or outer limit employment contract.

The Full Bench held that the analysis of how a person is dismissed for the purposes of section 386 does not begin and end with the terms of the employment contract. What matters was whether the employer initiated the dismissal in line with the principles in Mohazab v Dick Smith Electronics Pty Ltd,2 and the focus of the inquiry should be whether an action on the part of the employer is the principal contributing factor in the dismissal.

The Full Bench consider that a number of circumstances may exist where a 'fixed term employment contract' does not represent the true nature of the employment relationship, including where:

  • the employer misrepresents the nature of the employment at engagement;
  • the employer applies duress or coercion to get the employee sign the contract;
  • the contract is a sham;
  • the employer engages in conduct or made representations about ongoing employment during the fixed term; or
  • the terms of the fixed term contract are inconsistent with an award or enterprise agreement.

Importantly, the Full Bench noted that:

the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end no later than a specified date will not by itself constitute a termination at the initiative of the employer.3

LESSONS FOR EMPLOYERS

There is now more uncertainty for employers concerning fixed term employment and when the expiry of a fixed term represents 'dismissal at the initiative of the employer'.

Employers should:

  • be extremely careful in making representations to fixed term employees about ongoing employment or the renewal or extension of fixed term employment contracts;
  • have a clear and legitimate reason for engaging employees on a fixed term basis;
  • consider including no-representation clauses in fixed term employment contracts;
  • ensure fixed term employment contracts have a proper end date; and
  • ensure the actions of the business are consistent with the employee's fixed term employment status.

Employers should also watch this space for potential flow-on effects with redundancies.

Under the FWA, the provisions excluding the payment of statutory redundancy pay to employees who are employed for a fixed term are similar in language to the provisions in the FWA excluding fixed term employees from the unfair dismissal protections.

Skene v Workpac Pty Ltd [2016] FCCA 3035 – when a casual employee is a permanent employee for the purposes of the NES

FACTS

In 2010, the employee was employed by Workpac as a casual driver to work at the Clermont mine as a fly-in, fly-out worker under a labour hire arrangement between the mine and Workpac.

The employee alleged he was entitled to payment in lieu of annual leave when his employment at the mine ended amid allegations of misconduct in 2012.

Workpac submitted that they had engaged the employee as a 'casual employee' under the Workpac Pty Ltd Mining (Coal) Industry Workplace Agreement, which made the employee ineligible for annual leave, other entitlements available to permanent employees, and payments in lieu of annual leave.

  • The employee argued that his employment with Workpac was continuous, predictable, and determined in advance by rosters, for the following reasons:
  • He worked 12.5 hours each shift on a 7-days-on, 7-days-off continuous roster arrangement at the mine, rotating between day and night shifts.
  • He was assigned permanent camp-style accommodation at the mine, which he shared with another employee working the opposite roster.
  • He had regular and predictable working arrangements because his shifts were set 12 months in advance and followed a stable and organised rotating roster.
  • His employment was continuous, apart from taking seven days unpaid leave, arranged with approval from the mine.
  • The fly-in, fly-out arrangement with the mine, which included flights and accommodation, facilitated his employment.
  • He did not elect the days he worked, nor did he work for any other employer (other than Workpac).
  • He could not choose when and where to work because there was an expectation that he was available, on a continuing basis, to perform his duties in accordance with the roster at the mine.

DECISION – FEDERAL CIRCUIT COURT

In finding in favour of the employee, Federal Circuit Court Judge Michael Jarrett held that it did not matter how the employer or the employee described their relationship. Rather, that 'It is their mutual intention that must be objectively ascertained from the words of their agreement and the other matters'.4

Judge Jarrett held that the offer of casual employment was sufficient to engage clause 5.5.6 of the Workplace Agreement and impress upon the employee the status of casual. This meant that the employee was not a permanent full-time employee under the Workplace Agreement.

However, his Honour held that, although the employee failed to establish an entitlement to annual leave under the Workplace Agreement, the employee was entitled to annual leave under National Employment Standards (NES) in the FWA given the totality of the relationship. His Honour held that the employee should be classified as other than a casual employee for the purposes of section 86 of the FWA.

Relevantly, his Honour said that:

The essence of casual employment, as described by the Full Federal Court in Hamzy v Tricon International Restaurants and applied in MacMahon, is missing. There is no absence of a firm advance commitment as to the duration of [the driver's] employment or the days (or hours) he would work. Those matters were all clear and predictable. They were set 12 months in advance.5

LEARNINGS

There is now significant uncertainty about casual and permanent employment.

The employer (Workpac) has appealed Judge Jarrett's decision to the Full Federal Court of Australia. That appeal was heard in Brisbane in early November 2017 and the decision was reserved.

Watch this space.

Footnotes

1[2006] AIRC 756, 158 IR 410
2[1995] IRCA 625.
3Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, [72].
4Skene v Workpac Pty Ltd [2016] FCCA 3035, [58] 5Ibid, [85].

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Belinda Winter
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions