Federal Court upholds employer’s non-offer of casual conversion
The Federal Court upheld a decision by an employer not to offer conversion to a casual female employee, ruling that although the employee had worked a minimum 12-month period, she did not satisfy the legislative requirement of having worked a regular pattern of hours.
Her employer, Melbourne Polytechnic, offers a range of post-secondary and tertiary qualifications delivered both at its campuses and online in Victoria and China.
‘Ms D’ was engaged in April 2022 to present ‘TAE40116 Certificate IV in Training and Assessment’ on a casual basis. She entered into a casual contract of employment dated 14 April 2022 and signed a subsequent casual contract in November 2022.
Each contract provided that she was engaged on a casual basis, that there was no guarantee of particular hours of work, and that her actual hours of work would be determined by her manager based on the businesses’ operational and program needs.
Although she taught three classes in 2022, amounting to 12 hours, she was only allocated two classes from 31 March 2023, meaning a substantial reduction in hours to only six per week.
Where she had initially been required to work Tuesday and Thursday (6-9 pm), and Friday (10 am – 5 pm), her attendance was now limited to just Tuesday and Thursday.
She made a request for casual conversion on 8 May 2023.
In evidence before Federal Court Judge Patrizia Mercuri, Melbourne Polytechnic submitted that there had been ongoing issues with Ms D failing to correct student assessments in a timely manner, resulting in the work being allocated to other staff.
Her employment ceased on 22 June 2023.
In her decision, Judge Mercuri highlighted the substantial change in the hours and days that Ms D was required to work.
Commenting on Ms D’s situation from 31 March 2023, Judge Mercuri noted, “This is a significant variation to the applicant’s hours of work and therefore I find, the applicant did not work a ‘regular pattern of hours’ during the six months prior to 20 April 2023. That is, the applicant’s hours of work in the six-month period prior to the anniversary of her start date does not represent a regular pattern of hours on an ongoing basis as contemplated by section 66B (Fair Work Act 2009)“.
Judge Mercuri also accepted evidence from Melbourne Polytechnic that Ms D’s supervisor appropriately allocated casual hours to staff based upon a review of their experience, availability and assessment of their work experience.
She could not identify any evidence to suggest that the organisation had varied Ms D’s hours or failed to offer her additional hours to avoid offering her causal conversion.
The application was dismissed.
Ms D v Melbourne Polytechnic [2024] FedCFamC2G 551 (20 June 2024) (austlii.edu.au)
For queries about casual conversion, employment classifications, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.
Ref: 449.0724
