Court explains 'regular pattern of hours' in casual conversion request
The Federal Circuit and Family Court of Australia recently dealt with a case involving casual employment conversion rights under the Fair Work Act 2009 (Cth).
The dispute centred on whether an employer was obligated to offer conversion from casual to permanent part-time employment to a worker who had been employed for over 12 months.
The case highlighted the complexities surrounding casual conversion provisions, particularly the interpretation of what constitutes a "regular pattern of hours" as required by the Act.
While the worker believed she qualified for conversion, the employer argued that recent changes to her work schedule meant she did not meet the necessary criteria.
Casual employment dispute
The case involved a worker who was engaged by an education provider to deliver training courses on a casual basis. The employer offered a range of post-secondary and tertiary qualifications at its campuses in Victoria and China, as well as online.
The worker was specifically hired to deliver a Certificate IV in Training and Assessment, which was offered both on-campus and online.
Initially hired in April 2022, the worker taught three classes per week, totalling 12 hours. However, from March 2023, her workload was reduced to two classes, or six hours per week. This reduction in hours became a crucial point in the case.
The worker's employment was governed by casual contracts, which stipulated that her hours would be determined by her manager based on the operational and program needs of the employer.
Importantly, the contracts specified that the casual teaching rate included preparation, planning, curriculum development, and assessment.
Employee’s conversion request
In November 2022, the worker expressed interest in converting her employment from casual to ongoing, stating in an email:
"I would also be interested in having my employment converted from casual to ongoing in accordance with the Agreement."
It's worth noting that the worker's employment was regulated by the Victorian TAFE Teaching Staff Agreement 2018, which contained its own casual conversion clause. However, this case focused on the provisions in the Fair Work Act.
The court also considered the context of the worker's employment, including the fact that when she started work, most programs were being delivered online due to COVID-19 restrictions.
The employer was in the process of transitioning back to on-campus delivery towards the end of 2022.
The legal framework of casual conversion
The dispute revolved around Division 4A of Part 2-2 of the Fair Work Act 2009 (Cth), which outlines the obligations of employers regarding casual conversion. Key provisions include:
Section 66B, which requires employers to make an offer of conversion if a casual employee has been employed for 12 months and has worked a regular pattern of hours for at least the last six months.
Section 66F, which gives casual employees a residual right to request conversion under certain conditions.
The court emphasised the importance of these provisions, noting that they are intended to provide casual employees with a pathway to more secure employment.
"Regular pattern of hours" requirement
A crucial aspect of the issue was determining whether the worker had maintained a "regular pattern of hours" as required by the Act. The court noted:
"The term 'regular pattern of hours on an ongoing basis' is not defined. The parties were unable to point the court to any judicial consideration of this term."
The court looked to the Explanatory Memorandum of the legislation for guidance, which suggests that minor variations in work patterns or absences due to illness or holidays would not disqualify an employee from meeting this requirement.
However, in this case, the significant reduction in the worker's hours from March 2023 was deemed to have disrupted any regular pattern of work.
The court stated:
"This is a significant variation to the worker's hours of work and therefore I find, the worker did not work a 'regular pattern of hours' during the six months prior to 20 April 2023."
The employer’s allocation of work
The employer provided evidence explaining how teaching duties were allocated among staff. The manager responsible for allocating classes testified that he first assigned work to ongoing staff and then distributed the remaining classes to casual staff based on their experience, availability, and work performance.
The court accepted this explanation, finding:
"I am not satisfied that there is any evidence upon which to conclude that [the manager] specifically, or the employer more generally, allocated teaching hours in such a way as to avoid its obligations under Division 4A of Part 2-2 of the Fair Work Act."
This finding was significant in dismissing any suggestion that the employer had deliberately manipulated work schedules to avoid casual conversion obligations.
The court also considered evidence about assessment work associated with the classes. The manager gave evidence about sending numerous emails to the worker in June 2023, seeking completion of assessments for students.
The worker's failure to respond promptly led to the assessments being allocated to other teachers. The court noted the impact of delayed assessments on both students and the institution.
The court’s decision
Ultimately, the court ruled in favour of the employer, finding that they were not required to make an offer of casual conversion. The court concluded:
"I find that the employer was not required to make an offer of casual conversion in this case. Nor was it required to accept the worker's request for conversion."
The court also addressed the worker's formal request for conversion made on 8 May 2023. It found that the worker did not meet the criteria for making such a request under Section 66F of the Fair Work Act, as she had not worked a regular pattern of hours in the preceding six months.
This decision underscores the importance of maintaining a consistent work pattern for casual employees seeking conversion to permanent employment. It also highlights the challenges that can arise when interpreting and applying casual conversion provisions in practice.
