1. The Applicant worked approximately 62% of the shifts that she was offered by the Respondent.

• [45] The payroll data reflects several instances where the Applicant was not offered shifts by the Respondent for the regular race days. Neither party highlighted these instances nor provided a reason why the Applicant was not offered shifts.

• [46] The way in which shifts were offered, whereby the Applicant would be offered shifts via text message along with a pool of casual employees, was consistent with the operational requirements of the business. The texts would be sent with some regularity, whenever there were races that needed barrier attendants. However, the way in which, and frequency by which shifts were offered does not alone lend to the engagement being regular and systematic. Although, this has been held as a relevant factor in the consideration.

• [47] The Applicant formed part of the pool of employees who were offered shifts on race days which could be accepted or rejected. It does not appear the Applicant formed part of a roster, in the traditional sense, whereby employees would be assigned shifts or a where roster would be drafted pursuant to employee's individual availability.[16]

• [48] There is no evidence or suggestion, from either the Applicant or the Respondent that the Applicant was offered more or less shifts than other casual barrier attendants. There is no evidence to suggest that the Applicant, individually, was more critical to the Respondent's operations than her fellow team members, or critical to the operations. From the evidence submitted, it is clear there was not a reliance on the Applicant. There is no evidence that the Applicant's rejection rate impacted the Respondent's ability to run their operations or that the Respondent relied on the Applicant as a worker.

• [49] From the payroll data provided, the Applicant would be available for a period of time, then would appear to be unavailable for a period of time before being available for work.

• [50] I note the Respondent disputes the existence of the representation. The Respondent claimed that, if the Representation had been made, it did not lend to a finding that the engagement was intended to be regular and systematic.

• [51] I accept that the Representation, more than likely, would have occurred.

• [52] The Representation, as described in the Applicant's submissions, related to the days of potential shifts and perhaps the frequency of being offered those shifts, not the regular and systematic nature of the engagement. Although a relevant consideration, the Representation, if it occurred as described in the Applicant's submissions, does not itself mean the engagement was on a regular and systematic basis.

• [53] The predictability of the race days, which in turn led to the Applicant generally working Wednesdays and Saturdays, and the alleged assurance of receiving the group text does not itself lend to the Applicant's engagement being regular and systematic.[17] The industry in which the Respondent operates largely dictates the regularity of the race days. The Respondent offered work to the Applicant based on its pre-determined racing schedule.[18]

• [54] I am not satisfied that the Applicant accepted or engaged in work in a way that would form a regular and systematic engagement.[19] It is evident from the payroll data provided that the Applicant would accept or reject shifts that were offered to her as she desired. The Commission highlights that it is in the nature of casual employment that a worker has the flexibility to cancel shifts.[20] The fact that the Applicant decided to cancel and reject shifts does not itself preclude a finding that the engagement being regular and systematic. The Commission emphasises the high frequency by which the Applicant cancelled and rejected shifts.

• [55] The high rejection and cancellation rate reflects the irregular and unreliable nature of the engagement. The Applicant did not generally make herself available to the Respondent.[21] The engagement of the Applicant did not occur as a consequence of any ongoing reliance on the Applicant's services or engagement.[22] The Applicant did not accept work regularly enough for the engagement to not be considered occasional or irregular.[23]

• [56] In summary, I am not satisfied that the Applicant met the requirements of section 384(2)(a)(i) of the Act at any time throughout the engagement.

Section 384(2)(b)(ii) - Reasonable Expectation of Continuing Employment

• [57] The Applicant's submissions in relation to section 384(2)(a)(ii) of the Act highlight the different personal circumstances of the Applicant to the High Court authorities. The Respondent agreed that factual differences were present. However, the Respondent highlighted that the decisions of the High Court held weight for the purposes of the Commission interpretating the nature of the Applicant's engagement with the Respondent.

• [58] The Respondent focused on the wording and underlying intent of the contract and enterprise agreement that were in place. As outlined below:

• The Contract of Employment at clause 1.1 states that the Applicant will "be employed on a casual basis.... Casual means you are engaged by the hour with no guarantee of ongoing employment".

• The Enterprise Agreement at clause 5.5(a) states "casual employees are engaged from time to time when work is offered to them and are paid as such. Work may not be available each week and Perth Racing provides no guarantee of on-going employment".

• [59] The Applicant also relied on the Representation and offering of shifts as evidence for a reasonable expectation of ongoing engagement.

• [60] I note that the Respondent's actions in offering the Applicant shifts after her return from her injury related absence is a relevant consideration in assessing the continuing nature of the engagement. I also note the Respondent continuously offered shifts to the Applicant.

• [61] I accept the Applicant may have formed the expectation on the basis of the Respondent's repeated offering of shifts.

• [62] I do not however, consider the offering of shifts or the Representation to be basis for a reasonable expectation of continuing engagement on a regular and systematic basis. Although a relevant consideration, it is not decisive.

• [63] The Applicant's contract of employment was submitted into evidence. There is nothing included in the contract signed by the Applicant that made any suggestions that employment arrangement would be ongoing or potentially subject to a subsequent ongoing arrangement.[24]

• [64] From the evidence submitted, it is clear there was no agreed change in writing between the parties which suggested there was any change to the initial terms of the original contract.

• [65] No clause in the contract or actions throughout the period of engagement reflect that the Respondent required the Applicant to prioritise or ensure ongoing availability.[25]

• [66] As noted previously, the Respondent contests the existence of the Representation. The Representation, as described in the Applicant's submissions, related to the days of potential shifts and perhaps the frequency of being offered those shifts, not the continuing nature of the engagement. The Representation as put by the Applicant, if it did occur, does not conclude that the Respondent was inferring the engagement would be ongoing for the present purposes.

• [67] I note the Court's findings in Bronze:

"If the employee in fact has the necessary expectation, and if what the employer said at the beginning of the employment was sufficient to make the expectation reasonable, and nothing in the circumstances indicated that what the employer said was unreliable, implausible or was otherwise to be disbelieved, then the criterion may be satisfied from that time." [26]

• [68] On the material before me, it is clear there were other indications that the engagement would not be of a continuing nature.

• [69] The Applicant would accept work as desired, and this suited her personal circumstances. I find that, if the Applicant and Respondent had sought to formally change the initial intent of the engagement or had there been an intent for the Applicant's employment to be continuing, the Respondent, or the Applicant, would have made efforts to advance that intention.

• [70] I also note there is scope under the relevant enterprise agreement for the Applicant to have been engaged on a permanent part-time basis under clause 5.4(a),[27] however this had not occurred nor is there any evidence of any intention for this to occur.

• [71] The non-ongoing nature of the engagement suited the Respondent, who highlighted that it was not logical to employ a worker with an ongoing expectation of regular and systematic work while that worker still had the flexibility of cancelling and rejecting work as desired.

• [72] It was confirmed by Mr Ross, and in a section of an article submitted by the Respondent, that the Applicant had professional pursuits in the industry outside of her work at the Respondent. It follows that a non-ongoing, irregular, and unsystematic engagement would possibly suit the Applicant.

• [73] I find that the Applicant may have formed an expectation of ongoing employment due to the Respondent's regular offering of shifts. However, considering all relevant circumstances, I do not consider that any expectation would have been reasonable at any point in time throughout the engagement.

• [74] Therefore, consistent with section 384(2)(a)(ii) of the Act, and assessing the evidence submitted, I do not believe the Applicant should have ever held a reasonable expectation of continuing employment with the Respondent.

• [75] Notwithstanding my conclusion above, in the event that the Respondent's continued offering of shifts did form the basis of a reasonable expectation of continuing engagement, any continuing engagement would not have been on a regular and systematic basis.

• [76] The Applicant was not a casual employee engaged on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systemic basis. It follows that the Applicant has not met the minimum employment period.

• [77] The Applicant's unfair dismissal application is therefore dismissed and an Order [PR742589] to that effect is issued concurrently.

[2] Service is not broken by periods of absence for injury or illness; see [2010] FWAFB 5709, at [13].

[3] [2006] ACTCA 6; (2006) 149 IR 339.

[5] [2020] FWCFB 306, at [11].

[7] [2006] ACTCA 6; (2006) 149 IR 339, at 68.

[9] [2006] ACTCA 6; (2006) 149 IR 339, at 69.

[11] [2010] FWA 2078, at [76].

[12] (2019) 290 IR 344, at 39.

[15] Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 392 ALR 39, Construction, Maritime and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 398 ALR 404; ZG Operations & Anor v Jamsek & Ors [2022] HCA 2; (2022) 398 ALR 603.

[16] For contrast, see the rostering system referenced in [2020] FWCFB 306 at [19].

[17] [2020] FWCFB 306 at [11].

[18] For contrast, see the rostering system referenced in [2020] FWCFB 306 at [19].

[19] [2010] FWA 2078, at [76].

[20] [2014] FWCFB 8752, at [7].

[21] [2022] FWC 164, at [18].

[22] [2006] ACTCA 6; (2006) 149 IR 339, at 69.

[23] [2010] FWA 2078, at [76].

[24] For contrast, see contract referenced in [2020] FWCFB 306, at [18]-[19].

[25] For contrast, see the blackout periods, in which employees were required to hold themselves out as available to work, as referenced in [2020] FWCFB 306, at [20].

[26] (2019) 290 IR 344, at 43.

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