A teacher has had her application requesting conversion of her casual employment to permanent employment dismissed by the Federal Circuit and Family Court of Australia (the “FCFCA”).  The case provides guidance on the definition of “regular pattern of hours”, and when an employer is obligated to respond to a casual employee’s conversion request.  

Background 

The former teacher was employed by a polytechnic, entering into casual contracts in April and November 2022. In March 2023, the teacher’s pattern of hours changed, seeing her hours reduced from three days (12 hours) a week, to two days (6 hours) a week. 

In May 2023, after being employed for 12 months, the teacher made a casual employment conversion request, as she believed she was entitled to under the Fair Work Act 2009 (Cth) (the “FW Act”) provisions.  

The teacher had previously made her intent to have her casual employment converted to permanent known and had also raised a concern over whether she should be paid extra for marking assessments outside of her scheduled teaching hours.  

In determining that the teacher was not entitled to casual conversion, the FCFCA held that the March changes to her working hours constituted a “significant change” and was the result of a routine management decision rather than one attempting to avoid any obligations that may have arisen under the FW Act. Accordingly, the application was dismissed.  

“Regular Pattern of Work”

In order to have their casual employment converted to permanent employment, an employee (among other things) must be employed for 12 months, and in the six-month period ending the day the request is made, have worked a “regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work”.  

The FCFCA noted that legislation does not provide a definition for a “regular pattern of hours on an ongoing basis”, and the parties were unable to point to any judicial consideration of the term. To assist in defining the term, the FCFCA looked to the explanatory memorandum.  

According to the explanatory memorandum, an employee’s hours of work may still constitute a “regular pattern of hours” despite variations, including: 

• changes in specific times or days worked; and  

• time which the employee took away from work when ill or on holiday.  

Applying this to the teacher’s circumstances, the FCFCA deemed the March 2023 slashing of the teacher’s hours constituted a “significant change” and from that point onward could not be said to be working a “regular pattern of work” for the purposes of the FW Act’s casual conversion provisions. 

The teacher claimed that despite the cut in teaching hours, she was still required to undertake some residual assessment marking. However, as the assessment work was not separately remunerated (but rather the rate of pay was inclusive of such work) and the absence of other supportive evidence, the FCFCA found the argument could not alter their decision that the regular pattern of work had significantly changed.  

Employers Obligations 

The teacher also asserted the employer failed to provide any response in breach of their FW Act obligations.  Normally, when an employee makes a request for casual conversion under the FW Act, an employer must provide a written response within 21-days of receiving that request. 

However, under the circumstances, the FCFCA held the teacher had undergone a significant change in the pattern of her working hours within the six-month period and the teacher was not yet entitled to make a request for conversion.  

As the teacher was not entitled, the employer was under no obligation to provide a response. 

The teacher also alleged that the employer could have offered her more hours but elected not to in order to avoid their obligations which would have arisen to convert her employment to permanent.  

This assertation was dismissed, as the FCFCA favoured the evidence provided by the employer that the decision was one made with respect to the manager’s usual procedure for allocating classes, where priority is given to permanent staff and then remaining classes are allocated to casual staff having regard to their experience, availability, and his assessment of their work performance.  

Takeaways for Employers

A “regular pattern of hours” can still arise where there are some variations, such as a change in times and/or days worked, or absences of leave. However, a significant reduction in hours will likely constitute a change to the “regular pattern of hours” of a casual employee. 

Employers should be aware of the tenure and working patterns of their casual employees, so they can respond appropriately and as required under the FW Act. Employers are entitled to make decisions about the rostering of casual employees, provided that’s not for the purpose of avoiding their obligations under the FW Act or other legislation. 

Harri Deacon, Graduate Associate