Federal Court of Australia

Australian Nursing and Midwifery Federation v Monash Health [2024] FCA 534

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    This proceeding concerns the correct construction of an enterprise agreement in relation to the entitlements to long service leave of two registered nurses. The applicant, which is the Australian Nursing and Midwifery Federation, claims that two nurses whose industrial interests it is entitled to represent have made valid requests for long service leave which the respondent, Monash Health, has refused. The case turns on the application of the relevant provisions of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (the Agreement). The applicant seeks declarations, an order for the payment of compensation, and the imposition of a penalty for contravention of s 50 of the Fair Work Act 2009 (Cth), which requires compliance with the Agreement.

The terms of the Agreement

2    The two nurses in question are Sabrin Al-Fares and Jayne Cameron. It was not in dispute that the nurses were employees, that the respondent was an employer, that they were covered by the Agreement, and that the Agreement applied to them.

3    Subclause 70.4 of the Agreement provides that Award-entitled Employees are entitled to six months’ paid long service leave on completion of 15 years of Continuous Service. An Award-entitled Employee is defined by subclause 70.2 to mean, inter alios, a full-time or part-time Registered Nurse. A Casual Registered Nurse is not within the definition, and is therefore not entitled to long-service leave under these provisions of the Agreement. Under subclauses 70.4(b) and 70.7(c), an employee who has completed less than 15 years’ Continuous Service is entitled to take long service leave in advance on a pro-rata basis.

4    The calculation of Continuous Service is governed by subclause 70.5. Relevantly, subclause 70.5(b) of the Agreement provides for different periods of service that are deemed to be continuous and count as “Continuous Service”, including periods of “Continuous Casual Employment”. Relevant to this proceeding are periods of service made up of casual employment –

(b)    Periods that count towards Continuous Service

Service or prior service during the following periods will be deemed to be continuous and will count as Continuous Service for the purpose of subclause (a):

(i)    an absence from work on any form of paid leave (e.g. annual leave, personal leave, long service leave and paid parental leave);

…

(vi)    in the case of unpaid absences not otherwise referenced in this subclause, subject to clause 70.11:

(A)    any unpaid leave that is authorised in advance in writing by the Employer to count as service; or

(B)    up to (and including) 30 June 2020, any unpaid absence from work of not more than fourteen days in any year on account of illness or injury; or

(C)    on and from 1 July 2020:

1)    any period of unpaid leave taken on account of illness or injury;

2)    a period of Parental Leave, including Parental Leave that is extended under clause 68.12; and

3)    the first 52 weeks of any other type of unpaid leave not specifically referenced in this subclause 70.5(b)(vi);

(vii)    periods of Continuous Casual Employment with the current Employer (whether or not in a role covered by this Agreement); and

…

5    Subclause 70.5(a) provides for definitions of “Continuous Service” and “Continuous Casual Employment” –

70.5    Calculating Continuous Service

(a)    Definitions:

(i)    Continuous Service means continuous service with the same Employer plus any prior continuous service of six months or more with one or more Institutions or Statutory Bodies directly associated with such Institutions.

(ii)    Continuous Casual Employment means, for the purpose of clause 70.5(b), a period or periods of casual employment with the same Employer that are taken to be continuous, because one of the following applies:

A.    the period starting at the end of a particular instance of employment and ending at the start of another particular instance of employment did not exceed either the allowable period of absence, or 12 weeks (whichever is greater);

B.    the Employee had been employed by an Employer on a regular and systematic basis and the Employee had a reasonable expectation of being re-engaged by the same Employer;

C.    the gap between engagements was due to the terms of engagement of the casual Employee;

D.    the gap between engagements was caused by seasonal factors; or

E.    the Employee and Employer agreed, before the start of an absence, to treat the employment as continuous despite the absence.

6    Subclause 70.5(c) of the Agreement provides for periods that do not break Continuous Service, but do not count towards Continuous Service. None of the periods in subclause 70.5(c) was relied on by the applicant as having been engaged, and therefore it is unnecessary to set it out.

7    The term “casual employee” is defined by subclause 19.1 of the Agreement –

19.1    A casual Employee:

(a)    is an employee who:

i.    is made an offer of employment on the basis that the Employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work (e.g. relief work such as replacing any employee on an unplanned absence); and

ii.    accepts the offer of employment on that basis; and

iii.    is an employee as a result of that acceptance;

8    The defined term accords with the general understanding of the indicia of casual employment: see WorkPac Pty Ltd v Rossato [2021] HCA 23; 271 CLR 456 at [32], [88]-[89] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ); cf Fair Work Act s 15A (definition of “casual employment”). Nothing turns on the definition itself, but it is relevant to observe that subclause 19.7 provides that casual employees are entitled to various categories of unpaid leave, and are also entitled to parental leave under clause 68, subject to the requirements of that clause. Casual employees are otherwise not entitled to other common forms of paid leave, such as annual leave or personal leave: see subclause 19.6.

9    Where, as in this case, there are periods of mixed service, such as a combination of permanent and casual service, subclause 70.6 provides for the rates of accrual of long service leave. This subclause is important, because it makes plain that periods of service under different types of employment may be aggregated.

10    Subclause 70.11 of the Agreement provides for transitional arrangements in relation to the recognition of parental leave taken between 1 November 2018 and 30 June 2020 for the purposes of having service recognised for long service leave purposes –

70.11    Transitional Arrangements for Parental Leave taken as an Award-entitled Employee after 1 November 2018 and before 1 July 2020

Note 1: Unpaid Parental Leave taken prior to 1 November 2018 does not count as Continuous Service unless otherwise agreed, per clause 70.5(b)(vi)(A).

Note 2: Unpaid Parental Leave taken after 1 July 2020 will constitute Continuous Service, per clause 70.5(b)(vi)(C)1).

(a)    As an exception to clause 70.5(b), an Employee who took a period of unpaid Parental Leave that included any part of the period between 1 November 2018 and 30 June 2020 (inclusive) may make an application to the Employer to have that service recognised for Long Service Leave purposes. The Employer will approve the application and provide to the Employee an updated Certificate of Service reflecting the adjusted service arrangements.

(b)    An Employee electing to make an application under 70.11(a) must make the application to the Employer no later than 6 months of the following (whichever occurs last):

(i)    the date on which this Agreement commences; or

(ii)    the date on which the Employee returns to work after the qualifying period of unpaid Parental Leave

(c)    This clause 70.11 shall also apply to an Employee in respect of a former Employer if the Employee took a qualifying unpaid period of Parental Leave under this clause while employed by that former Employer.

Legislative background

11    Counsel for the respondent pointed to the legislation in Victoria relating to the entitlement of casual employees to long service leave as part of the context in which the Agreement is to be construed. The respondent tendered heads of agreement entered into in April 2020 that were antecedent to the preparation and approval of the Agreement. In relation to long service leave, the heads of agreement provided that the aim of the proposed Agreement was to align the provisions of State legislation and the Agreement to the greatest extent possible, that the Agreement would pick up some definitions of what constitutes service from State legislation, and that the applicant would provide a draft clause prepared by Gordon Legal for consideration –

18)    Long Service leave

a)    Aim is to align the provisions of the State Act and the Agreement to the greatest extent possible to produce an outcome where permanent employees and casual enrolled nurses receive benefits of current arrangements (6 months after 15 years’ service) with access after 7 years and casuals [sic] Registered Nurses and Midwives receive benefits of State Act (3 months after ten years with access after 7 years).

b)    Expanding by picking up LSL Act definitions of what constitutes service from the Act.

c)    ANMF will provide a draft clause prepared by Gordon Legal for consideration of DHHS and VHIA that seeks to reflect (a) and (b).

d)    Phased implementation proposed as:

i)    9 years from 1 July 21/22

ii)    8 years from 1 July 22/23

iii)    7 years from 1 July 23/24

12    The history of long service leave entitlements in Australia was traced in Selby, Long Service Leave (Law Book Co, 1983), Chapter 1, and in relation to Victoria by Dodds-Streeton J in Melbourne Cricket Club v Clohesy [2005] VSC 29; 14 VR 206 (Clohesy) at [26]-[37]. In Victoria, a general entitlement to long service leave was provided for by successive statutes commencing with the Factories and Shops (Long Service Leave) Act 1953 (Vic). The statutes contained provisions deeming employment to be continuous notwithstanding specified circumstances. In two decisions, R v Industrial Appeals Court and Automatic Totalisators Ltd; Ex parte Kingston (unreported, Full Court of the Supreme Court of Victoria, Gillard, Menhennitt and Dunn JJ, 26 February 1976) and Clohesy, it was held that on the facts found, the relevant long service leave provisions in the Victorian statutes did not deem the employment of the casual employees in question to be continuous employment. That was because of the absence of a continuous contract that imposed an obligation on the employer to offer, and on the employee to render, service: see Clohesy at [109].

13    The situation in New South Wales was similar. In Neill v Cameron [1977] AR (NSW) 505, the New South Wales Industrial Commission held that an employee who had worked as a casual employee in a draper’s shop for 15 years was not entitled to long service leave because she did not work under an unbroken contract of employment. This position was remedied by amendments to the Long Service Leave Act 1955 (NSW) that were made by the Long Service Leave (Amendment) Act 1985 (NSW) which, amongst other things, inserted s 4(11)(a) and (a1) –

4    Long Service Leave

(1)    Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.

…

(11)    For the purposes of this section –

(a)    service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment;

(a1)    the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof ––

(i)    caused by the absence of the worker under the terms of the worker’s employment;

…

14    In Victoria, shortly after Clohesy was decided the Long Service Leave Act 1992 (Vic) (1992 Act), as it came to be titled, was amended by the Long Service Leave (Amendment) Act 2005 (Vic), which commenced on 1 January 2006. The amending Act substituted a definition of “employee” in s 59 that included a casual or seasonal employee. Section 62 of the 1992 Act provided for several situations in which employment was to be regarded as continuous, noting that following the 2005 amendments “employee” was defined to include a casual or seasonal employee. The situations referred to in s 62 included the taking of annual leave or long service leave, any absence from work on account of illness or injury, and the taking of any period of adoption, maternity or paternity leave not exceeding 12 months or any longer period to which the employee was entitled under an employment agreement, the Workplace Relations Act 1996 (Cth), or the National Employment Standards under the Fair Work Act. In addition, the 2005 amendments added s 62A to the 1992 Act. That section provided –

62A.    Meaning of “continuous employment” for casual and seasonal employees

(1)    Without limiting section 62, the employment of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if—

(a)    there is no more than an absence of 3 months between each instance of employment in the period; or

(b)    there is more than an absence of 3 months between two particular instances of employment, but the length of the absence is due to the terms of the engagement of the employee by the employer.

(2)    Without limiting section 62, the employment of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if the absences between instances of employment are due to the seasonal nature of the employee’s employment.

(3)    Sub-sections (1) and (2) apply even if—

(a)    any of the employment is not full-time; or

(b)    the employee is employed by the employer under 2 or more employment agreements; or

(c)    the employee has engaged in other employment during the period.

15    The structure of the above provisions was that satisfaction of one of the three alternative conditions provided for by ss 62A(1)(a), (b), and (2), which were referable to periods of absence, resulted in the employment of any employee being regarded as continuous. The terms of s 62A(1)(b) should be noted. They broadly correspond to the differently expressed s 4(11)(a1)(i) of the New South Wales Act, and elements of the text have been picked up in s 12(3)(b) of the current Victorian legislation, and in subclause 70.5(a)(ii)C of the Agreement.

16    The 1992 Act was repealed and replaced by the Long Service Leave Act 2018 (Vic) (2018 Act), which modified and expanded upon the conditions that would give rise to continuous service. The 2018 Act does not apply to employees who are entitled to long service leave under an instrument made under the Fair Work Act where in the opinion of the Industrial Division of the Magistrates’ Court the entitlements under the instrument are more favourable than those provided for by the 2018 Act: see s 5(b) and the definition of “employment agreement” in s 3(1).

17    Section 3(1) of the 2018 Act defines “employee” as including a casual or seasonal employee. The effect of s 12(6) of the 2018 Act is that any employee’s employment is taken to be continuous despite an absence from work following termination of employment if the employee is re-employed within 12 weeks –

(6)    An employee's employment is taken to be continuous despite an absence from work caused by the termination of the employee's employment—

(a)    at the initiative of the employer or the employee, if the employee is re-employed by the employer within 12 weeks after the termination; or

(b)    because of the expiration of a specified term of an employment contract, if the employee is re-employed by the employer within 12 weeks after the expiration; or

…

18    Section 12(2) provides that absences on account of various types of leave do not break continuity of employment. Section 12(3) provides that an absence from work by a casual or seasonal employee for a period longer than 12 weeks does not break the continuity of employment in the circumstances specified in paragraphs (a) to (d) –

(3)    A casual or seasonal employee’s employment is taken to be continuous despite an absence from work that is longer than 12 weeks, starting at the end of a particular instance of employment and ending at the start of another particular instance of employment if—

(a)    the casual or seasonal employee and the employer so agree before the start of the absence; or

(b)    the absence is due to the terms of engagement of the casual or seasonal employee; or

(c)    the absence is caused by seasonal factors; or

(d)    the employee has been employed by the employer on a regular and systematic basis and the employee has a reasonable expectation of being re-engaged by the employer.

19    While some language in the long service leave provisions of the Agreement reflects language used in the 2018 Act, s 12 of the 2018 Act is structurally different from the corresponding terms of the Agreement, and some of the events that do not break continuity are expressed differently. For instance, s 12(3) is expressed solely around absences from employment for a period greater than 12 weeks. Of significance to the present proceeding are: (1) the reference in s 12(3)(b) to an absence due to the terms of engagement, which broadly corresponds to subclause 70.5(a)(ii)C of the Agreement, and (2) the reference in s 12(3)(d) to employment on a regular and systematic basis with a reasonable expectation of re-engagement, which broadly corresponds to subclause 70.5(a)(ii)B of the Agreement. However, it is important to bear in mind that the structure within which these expressions are to be found in the Agreement is different.

The factual circumstances

20    Four affidavits were read to the Court: (a) one affidavit of Ms Al-Fares; (b) two affidavits of Ms Cameron; and (c) an affidavit of Jacqueline Thompson, who is employed by Monash Health as the Manager of the Monash Health Bureau. No deponent was cross-examined. Other documents were separately tendered. In addition, there were admissions on the pleadings, and a statement of agreed facts was tendered that has enabled the Court to focus on the real issues in dispute, which turn on the characterisation of the periods — to use that term neutrally, for reasons that will become apparent — during which Ms Al-Fares and Ms Cameron did not undertake paid work for the respondent.

The Monash Health Bureau

21    The Monash Health Bureau, previously known as the Southern Health Bureau, comprises employees who work on a flexible basis, such as casual employees. The Bureau includes a casual nurse bank, which is commonplace in hospitals throughout Victoria. Currently, the Bureau uses a system called “ShiftMatch”, which is an online system that allocates casual employees to shifts, and under which casual employees can provide and update their availability for shifts. Under this system, upon receiving an offer of a shift, a casual employee is entitled to accept or reject the offer. The ShiftMatch system has been in place since around 2012, prior to which there was a paper-based system involving the use of a roster book and telephone communications with offers of shift work which employees could accept or reject.

The Monash Health Bureau casual employee extended leave of absence Procedure

22    Since September 2015, Monash Health has had in place a procedure titled Monash Health Bureau casual employee extended leave of absence Procedure. The procedure has since then been available on PROMPT, a system that collects Monash Health policies and procedures and which is accessible to all employees. As initially promulgated, the procedure was stated to apply to casual employees wishing to take an extended leave of absence of three months or longer during which they wished to remain an employee of the Monash Health Bureau casual bank. Under the procedure, a casual employee was to notify the Monash Health Bureau of a period of planned absence by completing an application form and emailing it to a specified email address. The procedure provided for each request for extended leave to be reviewed in order to determine whether the request for leave would be granted, and for the employee to be notified of the outcome.

23    Employees were also required to notify the Monash Health Bureau of unplanned absences. The procedure provided that casual employees who did not work any hours for Monash Health Bureau for a period of three months without providing notification would receive correspondence requesting they confirm their intention to remain on the casual bank by completing and returning the Monash Health Bureau Employment Intention form, after which discussion was to take place to determine whether the employee would remain on the casual bank. The procedure provided that if casual employees failed to return the form or failed to correspond with the Monash Health Bureau, their employment would be terminated.

24    The procedure has been updated since its inception. The drafting of a more recent version, dated 6 September 2021, is different, but its essential elements are similar, save that there is no prescribed form. It is noteworthy that the version dated 6 September 2021 provides expressly that it is to be read subject to the relevant industrial instrument that covers the employment of an employee, which is to prevail in the event of any inconsistency, and that the procedure does not form part of any contract of employment and may be varied from time to time.

The two employees

25    It was not in dispute that Ms Al-Fares and Ms Cameron are Award-entitled Employees, and that at the time they enquired about their long service leave entitlements, they were classified as part-time registered nurses. In the case of Ms Al-Fares, it was not a mere enquiry, but an application to take long service leave on specified dates. The issues in this application concern whether at the date of their enquiries they had completed a period of Continuous Service that qualified them for long service leave. Common to both employees is that the respondent contends that there were gaps in their employment that broke the continuity of their service. At the risk of oversimplifying the case, the key issue is whether those gaps break the period of continuous employment.

26    It is therefore necessary to set out in respect of both employees their periods of work with the respondent. The following facts are derived from the admitted facts on the pleadings, the statement of agreed facts, and the affidavit evidence, and constitute my findings.

Ms Al-Fares

27    Ms Al-Fares commenced casual employment with the respondent in 2009 and remains employed. At the time Ms Al-Fares commenced her employment, the respondent was known as Southern Health. Ms Al-Fares signed written terms of engagement as a casual employee that were dated 1 August 2009. Under those terms, Ms Al-Fares was free to accept or reject offers of work. The engagement was terminable by the respondent “in accordance with Southern Health requirements” without notice. The terms of the engagement provided for an hourly rate with a 25% loading, which was paid in lieu of benefits including long service leave.

28    Over the years, Ms Al-Fares’ employment switched between casual, part-time, and full-time employment. There were gaps in her work, which are relevant to the resolution of the applicant’s claims. Ms Al-Fares commenced in the bank of casual nursing staff whose employment was managed by the Southern Health Bureau, which later became known as the Monash Health Bureau. The way the Bureau worked from Ms Al-Fares’ perspective was that she recorded her availability to accept casual shifts in a roster book that was located in the Monash Medical Centre in Clayton. She would then be contacted by the respondent in relation to available shifts, and she would select the shifts that suited her. Between the commencement of her employment and December 2011, Ms Al-Fares worked about four shifts per week on average.

29    In December 2011, Ms Al-Fares became pregnant with her first child. Including as a result of medical advice, she decided not to work while she was pregnant. She contacted the respondent about her situation, and a human resources officer raised the possibility of her taking a form of parental leave, or unpaid sick leave. Ms Al-Fares did not pursue these options at the time.

30    After the birth of her daughter, Ms Al-Fares received a letter from the respondent in about November 2012 stating that due to her absence the respondent intended to cease her employment and to remove her name from the bank of casual nursing staff. Ms Al-Fares responded to this letter by email, explaining the reasons for her absence, and requesting that her name not be removed. As a result of this email, Ms Al-Fares’ name was not removed, and she remained a casual employee.

31    On 24 December 2012, Ms Al-Fares wrote to the respondent requesting that her cessation of work from 22 December 2011 be treated as the commencement of special maternity leave or unpaid sick leave. She also enquired about her eligibility for maternity entitlements, and requested that these entitlements be calculated by reference to the average hours that she had worked in the year prior to ceasing work in December 2011. She attached to her letter a medical certificate stating that she had been unfit for work during her pregnancy, and a statutory declaration that testified to the complications in her pregnancy and the birth of her daughter in September 2012. Ms Al-Fares completed a form in which she sought leave from 10 September 2012, being the date of birth of her daughter, until 10 September 2013.

32    On 31 December 2012, the respondent approved Ms Al-Fares’ application for parental leave. The terms of the approval were for a period of 52 weeks commencing on 10 September 2012, which corresponded to the period of leave that Ms Al-Fares had sought in her application form. The letter of approval made no reference to unpaid sick leave from 11 December 2011, which Ms Al-Fares had sought in her letter of 24 December 2012. Subsequently, in January 2013 Ms Al-Fares applied to spread her 10 weeks of paid parental leave over 20 weeks at half pay, and this request was granted. In about August 2013, Ms Al-Fares returned to casual employment and worked regular shifts.

33    In June 2014, and after becoming pregnant with her second daughter, Ms Al-Fares applied for 52 weeks’ parental leave, commencing 5 August 2014. The respondent approved the application. The terms of approval provided for a period of paid parental leave between 5 August and 13 October 2014, and unpaid parental leave between 13 October 2014 and 5 August 2015. Later, in May 2015, Ms Al-Fares requested an extension of her parental leave until 5 December 2015, which the respondent approved.

34    Ms Al-Fares completed her unpaid parental leave, and from January 2016 she returned to casual work as a member of the casual bank of nursing staff working shifts that varied from time to time, but her shift work was relatively consistent.

35    From 22 December 2017 to 10 February 2018, Ms Al-Fares worked in a temporary part-time position with the respondent. She then recommenced casual employment and, until the week ending on Sunday 25 July 2021, worked frequent casual shifts that varied from time to time, reducing her shifts during the time of the COVID-19 pandemic so as to accommodate home schooling responsibilities. At the same time, available shift work reduced as a result of the cancellation of elective surgery and other measures that were taken in response to the pandemic. In a period of nine weeks and five days between March and May 2020, Ms Al-Fares did not work any shifts, but in May 2020 received a COVID-19 stability payment offered by the respondent.

36    From January 2021, Ms Al-Fares increased the casual shifts that she worked before commencing temporary part-time employment in July 2021, and then permanent employment in October 2021.

37    Drawing this account together, I will set out the periods of Ms Al-Fares’ work in the following table, which reflects the parties’ agreed statement of facts including some apparent but immaterial miscalculations of time, while highlighting the two periods that are contentious –

38    There are two gaps in work that are attributed to periods of paid and unpaid parental leave that are central to the disputed issues, being Period B and Period D. As to Period B, Ms Al-Fares’ parental leave, the parties’ statement of agreed facts divided that period into three parts –

(a)    18 December 2011 to 10 September 2012 – special maternity leave without a paid entitlement;

(b)    10 September 2012 to 19 November 2012 – maternity leave with a paid entitlement of 10 weeks (arranged as backpay); and

(c)    20 November 2012 to 18 August 2013 – maternity leave without a paid entitlement.

39    As to Period D, the statement of agreed facts divided Ms Al-Fares’ parental leave into four parts –

(a)    5 August 2014 to 13 October 2014 – maternity leave with a paid entitlement of 10 weeks;

(b)    13 October 2014 to 5 August 2015 – maternity leave without a paid entitlement;

(c)    5 August 2015 to 5 December 2015 – extension of maternity leave without a paid entitlement; and

(d)    6 December 2015 to 15 January 2016 – no work performed.

40    In July 2022, Ms Al-Fares applied for long service leave, which was refused. At this time, Ms Al-Fares was a permanent part-time employee. Ms Al-Fares renewed her request in October 2022, specifying subclauses 70.4(b) and 70.7(c)(i) of the Agreement as the foundation of her claimed entitlement. Ms Al-Fares sought leave for the periods 3 to 6 January and 16 to 19 January 2023. This request was also refused by the respondent, stating that Ms Al-Fares had not accrued eight years of continuous service which, effective 1 July 2022, was the minimum period of continuous service required in order to qualify for pro-rata long service leave in advance.

Ms Cameron

41    Ms Cameron commenced permanent full-time employment with the respondent in April 2006. At the time of commencement of her employment she signed a written employment agreement which provided for full-time employment, but which was subject to variation by mutual agreement and termination on four weeks’ notice.

42    Over the years, the nature of Ms Cameron’s employment varied. From February 2007 to July 2010, she was employed on a part-time basis in the emergency department of the Monash Medical Centre. By letter dated 14 June 2010, Ms Cameron wrote to the respondent and gave notice of her resignation from the Monash Medical Centre emergency department, and nominated her last day of employment as 1 August 2010. In the letter, Ms Cameron informed the respondent of her intention to take an indefinite break to travel, and requested that her employment be transferred to the bank roster, as she was intending to return to the Monash Medical Centre at the end of the year. Ms Cameron also stated in her first affidavit that prior to her departure she spoke by telephone to an employee of the respondent working with the Southern Health Bureau (as the Monash Health Bureau was then known), and advised the employee of her intention to work in Queensland until 22 November 2010, and of her intention to then work on a casual basis in the emergency department of the Monash Medical Centre. Ms Cameron stated that she was advised that her casual employment would commence on 1 August 2010, and that she should advise the Bureau of her availability for casual shifts upon her return from Queensland.

43    The records of the respondent recorded Ms Cameron’s change in status from permanent part time to temporary casual and stated that Ms Cameron would join the nurse bank effective 1 August 2010 due to travel commitments for the rest of the year. From 2 August 2010 until 22 November 2010, Ms Cameron was employed on a part-time basis in the emergency department at the Townsville Hospital. In her second affidavit, Ms Cameron stated that a few weeks prior to her return to Victoria, she applied for casual shifts with the respondent from Townsville using a computer. Upon returning from Queensland in November 2010, Ms Cameron commenced working casual shifts with the respondent.

44    Ms Cameron stated in her first affidavit, without objection, that in about June 2011 she noticed that her pay grade had not been increased in line with her years of continuous service and that she contacted the payroll department of the respondent. She stated that the respondent subsequently recognised the period in which she worked for Townsville Hospital, when she also remained a casual employee of the respondent, as continuous service, and that she received back pay for the delay in increasing her pay grade.

45    From July 2011 to June 2012, Ms Cameron worked in temporary part-time employment with the respondent. In June 2012, she returned to casual employment. In January 2015, Ms Cameron reduced the number of her shifts upon taking up work of three and then four days per week working in a general practitioners’ clinic. With the exception of a six-week holiday period in late 2012 and early 2013, a six-week period in July and August 2015 when she was moving house, and a period between 14 August 2017 and 10 January 2018 to which I will return, she worked frequent casual shifts which were arranged through the Monash Health Bureau.

46    From March 2016, Ms Cameron reduced her shifts with the respondent to attend medical and physiotherapy appointments in relation to her left foot and ankle. From about April 2017, Ms Cameron began to feel increasing pain in her left foot which required scans and procedures, and resulted in her not working any shifts with the respondent on a number of fortnights. Between 14 August 2017 and 10 January 2018, Ms Cameron did not work any shifts as a result of ankle reconstruction surgery and an extended recovery period. She kept the associate nurse unit managers of Monash Health abreast of the issues with her left foot and the effect that they were having on her availability to perform casual shifts. Prior to her surgery, Ms Cameron advised the associate nurse unit managers in the emergency department that she was to undergo the surgery, and that she would be unable to perform shifts.

47    Ms Cameron’s recovery from surgery took longer than expected. She stated in her first affidavit that at the time she was off work she was unaware of the Monash Health written policy concerning the notification of periods of extended absence by casual employees engaged through the Monash Health Bureau, to which I referred earlier. Ms Cameron believed that if a casual employee did not perform shifts for 12 weeks without informing the Bureau of the absence, then the Bureau would contact the employee to determine whether the employee would retain casual employment. This belief appears to be supported by provisions in both versions of the policy document that are before the Court under the headings, “Unplanned Absence”.

48    Shortly after becoming aware that she would not be able to perform casual shifts at Monash Health for a period that exceeded ten weeks, Ms Cameron contacted the Monash Health Bureau to explain that she would be unavailable for shifts for a period that was longer than anticipated. She spoke by telephone to an employee working with the Monash Health Bureau who told Ms Cameron to apply in advance for shifts which she anticipated she would be able to perform, stating words to the effect, “That’s fine. Thanks for letting us know. Just place your availability in ShiftMatch when you think you’ll be available for shifts”. Ms Cameron acted on this advice and applied for shifts she believed she would be able to perform in accordance with medical advice, and she later resumed casual shifts as expected.

49    Ms Cameron resumed her casual shift work during the week commencing on 8 January 2018, and continued also to work in the general practitioners’ clinic for four days per week until 27 February 2020. From then, she ceased working at the general practitioners’ clinic and increased the number of her shifts with the respondent to about four shifts per week.

50    In June 2021, Ms Cameron commenced a temporary part-time position with Monash Health administering COVID-19 vaccinations. In about May 2022, her role changed to one involving contacting COVID-19 positive patients to assess their health and well-being. In October 2022, Ms Cameron took up a permanent part-time position in the infection prevention department at Monash Health, where she continues to work.

51    From the above account, Ms Cameron’s periods of employment and the gaps that are in issue may be divided into nine, during which the nature of her employment switched between full-time, part-time, and casual employment. The gaps in her periods of employment are relied on by the respondent as breaking the continuity of her employment. The applicant denies that these gaps broke the continuity of her employment, and also claims that the gaps were due to the terms of her engagement: see subclause 70.5(a)(ii)C of the Agreement. I will set out the periods in the following table, which accords with the parties’ statement of agreed facts, including in at least one apparent but immaterial miscalculation of time, while again highlighting the periods that are contentious –

52    In 2018, Ms Cameron contacted payroll services to request details of her accrued long service leave entitlements. She was informed by email by a payroll officer that according to the payroll system she was not entitled to any long service leave due to a break in service from 21 August 2017 to 20 January 2018. In a subsequent email, Ms Cameron was told that because as a casual employee she had no sick leave entitlements that were payable, her period of non-work due to her foot surgery was looked upon as a break in service.

53    Further correspondence took place between the applicant and the respondent in relation to Ms Cameron’s claim that she was entitled to long service leave. Her claim was renewed in a considered letter from the applicant to the respondent dated 3 June 2022. That claim was rejected on the ground that the two periods of more than 90 days constituted a break in service as contemplated by what I interpret to be a reference to s 62A of the 1992 Act, which provided for when employment of casual or seasonal employees was to be regarded as continuous.

54    In November 2022, Ms Cameron again requested advice from Monash Health as to her continuous service with Monash Health and the accrual of her long service leave entitlement. In response, the respondent maintained its position that owing to her break in service in 2017-2018 she did not have sufficient service to be entitled to long service leave.

The applicant’s submissions

55    Counsel for the applicant put the case on two bases, submitting that, independently, subclauses 70.5(a)(ii)B and C of the Agreement (see [5] above) were engaged, thereby rendering the relevant periods of casual employment of the two nurses continuous.

56    First, it was submitted that for the periods during which Ms Al-Fares and Ms Cameron had been employed as casual nurses, they had been employed on a regular and systematic basis by Monash Health, and that each had a reasonable expectation of being re-engaged by the same employer utilising the Monash Health Bureau. The applicant relied on the totality of the evidence as showing that the employment of the two nurses was regular and systematic. The applicant submitted that the arrangements that were in place through the Monash Health Bureau formalised a system of engagement of casual staff and gave rise to employment on a systematic basis. The applicant also submitted that the evidence supported a finding that each of the nurses reasonably expected to be re-engaged by Monash Health.

57    The second basis on which the applicant’s case was put was that, in relation to the gaps in employment that are in issue, subclause 70.5(a)(ii)C of the Agreement was engaged on the ground that the gap between engagements, being the periods of leave or unavailability, were due to the terms of engagement of the casual employees. The applicant submitted that the system adopted by Monash Health in operating its Bureau provided within it that casual employees were able to take extended leave of absence. It was submitted that the system established by Monash Health, albeit not applied rigorously to the employment of both of Ms Al-Fares and Ms Cameron, indicated that it was contemplated that casual employees with permission were able to take leave such that the gaps between their regular periods of work fell within the terms of their engagement. It was submitted that the terms of their respective engagements were not limited to the terms in the engagement letters but extended to the terms on which their employment was arranged within the system established by Monash Health.

58    In the case of Ms Al-Fares, it was submitted that she had a period of Continuous Service of 13 years at the time she requested long service leave, which was unlawfully refused. In the case of Ms Cameron, it was submitted that she also has an entitlement to long service leave which is disputed by Monash Health, and that she is entitled to a declaration accordingly.

Monash Health’s submissions

59    Monash Health relied on a claimed difference between the language used in s 12(3) of the 2018 Act and subclause 70.5(a)(ii) of the Agreement. Counsel pointed to the uses of the word “absence” in s 12(3) of the 2018 Act and subclause 70.5(b) of the Agreement, and contrasted them with the use of the word “gap” in subclause 70.5(a)(ii)C and D of the Agreement. Counsel submitted that this difference in language supported a construction of the Agreement under which a casual employee’s periods of leave fall to be governed only by subclauses 70.5(b) and (c) of the Agreement, and not by subclause 70.5(a)(ii), which uses the word “gap” rather than “absence”, thereby conveying a different meaning.

60    It was further submitted that to view the continuity of employment of casual employees only through the lens of subclause 70.5(a)(ii), and its references to “the gap between engagements”, would be anomalous, and would have the effect that permanent employees who have no gaps between engagements, but who have entitlements to leave, would be treated in an inferior way. It was submitted that this construction is reinforced by the transitional provision in subclause 70.11 of the Agreement, which would have no purpose if all periods of unpaid parental leave were treated as gaps between engagements due to the terms of engagement for the purposes of subclause 70.5(a)(ii)C. Moreover, Monash Health submitted that the reference in subclause 70.5(a)(ii)C to a gap between engagements that was due to the terms of engagement of the casual employee was concerned with a gap brought about by a term of the employment.

61    In the case of Ms Al-Fares, Monash Health did not dispute that Ms Al-Fares’ actual periods of casual employment were regular and systematic, and that each of them might contribute to the calculation of Continuous Service. However, it submitted that each of her two absences broke the continuity of her service. It was submitted that none of the categories within subclauses 70.5(b) and (c) operated to maintain continuity. In particular, it was submitted in relation to Ms Al-Fares’ first period of absence of 86 weeks between 18 December 2011 and 18 August 2013  –

(a)    no record documents that the absence was authorised in advance to count as Continuous Service (subclause 70.5(b)(vi)(A)).

(b)    subclause 70.5(b)(vi)(C) does not apply because the absence arose prior to 1 July 2020;

(c)    the absence was not an “authorised period of unpaid leave as an Award-entitled Employee” for the purposes of 70.5(c)(i) (see the definition in subclause 70.2(a)) because the leave was administered at a time when Ms Al-Fares was a casual registered nurse, and not an “Award-entitled Employee”;

(d)    subclause 70.5(c)(vii) did not apply for the same reason, and in addition, the absence in respect of Ms Al-Fares’ pregnancy exceeded 12 months; and

(e)    the transitional arrangement for parental leave in subclause 70.11 did not apply because the parental leave was taken before 1 November 2018.

62    In relation to Ms Al-Fares’ second period of absence of 75 weeks between 5 August 2014 and 15 January 2016, Monash Health made the same submission, claiming that the period of absence broke the continuity of employment.

63    In relation to Ms Cameron, Monash Health did not dispute that her periods of casual engagement involved regular and systematic employment, but submitted that the two periods of absence broke the continuity of her employment. The first absence relied on by Monash Health was the period of 16 weeks between 2 August 2010 and 24 November 2010, which was the period in which Ms Cameron travelled to Queensland and worked at the Townsville Hospital. In particular, Monash Health submitted that –

(a)    no record documented that the absence was to count as Continuous Service (subclause 70.5(b)(vi)(A) or 70.5(a)(ii)(E));

(b)    the absence exceeded 12 weeks for the purposes of subclause 70.5(a)(ii)(A);

(c)    the absence was not authorised absence, nor a grant of leave, for the purpose of any of the categories in subclauses 70.5(b) and 70.5(c); and

(d)    to the extent that the applicant argued that casual employment performed at Townsville Hospital is relevant, the Townsville Hospital service did not exceed six months and was not performed with an applicable Institution or Statutory Body for the purposes of subclauses 70.5(b)(viii), 70.2(c), and 70.2(i).

64    The second absence relied on by Monash Health was the 21-week period between 14 August 2017 and 10 January 2018 in respect of which it was submitted that there was no document that recorded Monash Health granting leave or any grant of absence. It was submitted that an ex post facto rationale for the absence was not relevant for the purposes of applying subclause 70.5(b) or (c). It was submitted that the absences within subclauses 70.5(b) and (c) are to be notified at the time for the purposes of (for example) authorising the absence (subclause 70.5(c)(i)), granting leave (subclause 70.5(b)(i)), or documenting that the absence is to count as service (subclauses 70.5(b)(vi)(A) and 70.5(a)(ii)E). Monash Health submitted that the second period of absence was therefore to be treated as a gap and that continuity of service was broken because the gap exceeded 12 weeks and it was not authorised in advance to count as service: see subclause 70.5(b)(vi)(A). It was further submitted that even if subclauses 70.5(b) and (c) remained relevant, Ms Cameron’s second absence exceeded 14 days (subclause 70.5(b)(vi)(B)) and it was not an authorised period of unpaid leave taken by an Award-entitled Employee at the time (subclause 70.5(c)(i)). Rather, it was an unnotified absence taken by a casual registered nurse.

Analysis

The applicable principles of construction

65    The principles applicable to the construction of the Agreement were not in issue. Counsel for Monash Health relied on the principles concerning the construction of industrial instruments that were summarised in WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] and King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130], noting that King was reversed on appeal, but the principles were not challenged: King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171 at [40]-[43] (Collier, Katzmann and Jackson JJ). See also Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512; 314 IR 441 at [85] (Katzmann J). The applicable principles have been expressed by Full Courts consistently, and the following principles essayed in WorkPac Pty Ltd v Skene at [197] have been frequently cited and applied –

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 … at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 … at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

66    To these principles I add three observations. The first is to emphasise the importance of the text of the instrument, construed in its industrial context. In circumstances where non-compliance with an industrial instrument may expose a person to a civil penalty, instruments should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the instrument itself, without having to delve into the pedigree of the instrument: see King (Full Court) at [43].

67    The second observation is that the terms of an enterprise agreement are typically the outcome of negotiations between competing industrial interests. Their terms are often the product of compromises, and in their operation may not be consistent or perfect, and may result in anomalies: see the discussion by Bromberg J in Target Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2023] FCAFC 66 at [54]-[56]. The task of a court is to construe any particular compromises that are reflected in the terms of the instrument: see, in another context, Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [6] (Gleeson CJ, Gummow, Hayne and Heydon JJ) and at [126] (McHugh J). It is not for a court called upon to construe the instrument to “reach a compromise of those compromises”: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; 77 ALJR 1806 at [43] (McHugh, Gummow, Callinan and Heydon JJ).

68    The third observation is that while instruments should generally be construed in a way that favours objective purpose where constructional choices arise, it is important to have a correct perspective to ascertain the relevant objective purpose, and to recognise that ultimately it is the text of the instrument, construed in accordance with the established principles of interpretation, that is the manifestation of objective purpose: see Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [6] (Gleeson CJ); Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

69    Bringing these principles together, in this case the Agreement was the result of industrial bargaining, where a focus on linguistic perfection, clarity of structure, and consistency of language may not have been paramount. I have not overlooked that there is reference in the heads of agreement to Gordon Legal preparing a draft of the long service leave provisions. However, this does not affect my appraisal of the industrial context in which the Agreement was prepared and approved. The terms of the Agreement that fall for consideration contain some ambiguities, and one or more persons to whom the Agreement applies may perceive that anomalies arise. But in seeking to construe the terms of the Agreement, the ambiguities and inconsistencies in language, and perceived anomalies in outcome, are not necessarily reliable guides to meaning. It is important to resist re-fashioning the Agreement so as to fit some presumed conception as to how the Agreement should operate.

Overview of subclauses 70.5 and 70.6

70    What comprises Continuous Service is a construct that is the subject of subclause 70.5 in the context of 70.6. When regard is had to subclause 70.6, the Agreement should be construed so that separate periods of Continuous Service under different arrangements, such as full-time, part-time, and casual employment may be aggregated.

71    The structure of subclause 70.5(b) is significant. It deems different periods, such as periods of absence on account of leave, as counting towards Continuous Service. Periods of Continuous Casual Employment sit with these other periods. Without the deemed continuity of service effected by that provision, casual employees would be unlikely to serve any period of continuous employment that extended beyond an agreement to work a shift or series of shifts. The conditions in the definition of Continuous Casual Employment must therefore be addressed to identify what period or periods of Continuous Service a casual employee has performed.

72    Underlying subclause 70.5(a)(ii) is an assumption that Continuous Casual Employment may comprise separate periods of casual employment, and periods of absence or gaps in work. The five conditions in subclause 70.5(a)(ii) refer to periods of different types –

(a)    condition A refers to a period between engagements;

(b)    condition B refers to a period of casual work;

(c)    condition C refers to a period between engagements;

(d)    condition D also refers to a period between engagements; and

(e)    condition E refers to a period of absence.

73    These periods may be aggregated so as to give rise to a period of Continuous Casual Employment. A period of Continuous Casual Employment may then itself be aggregated with other periods referred to in subclause 70.5(b), such as periods of paid leave, that are deemed to count as Continuous Service. This aggregation works in concert with subclause 70.5(c) which provides for other periods, such as periods of authorised unpaid leave as an Award-entitled Employee, that do not break Continuous Service. And as I have mentioned, the effect of subclause 70.6 is that periods of service of different types may be aggregated for the purpose of calculating entitlements to long service leave.

74    Counsel for Monash Health submitted that subclause 70.5 substantially but not wholly adopted concepts from the 2018 Act, and referred in this respect to the heads of agreement. Monash Health also submitted that there were textual differences to which I referred at [59]-[60] above, involving the use of the word “gap” in the Agreement, rather than “absence” appearing in s 12(3) of the 2018 Act that supported its construction that periods of leave were not covered by subclause 70.5(a)(ii). I do not find either of these arguments persuasive in themselves. I do not see that there is any real difference between a “gap” and an “absence” such as to bring about the result that Monash Health advanced. There are, however, some more fundamental differences between s 12 of the 2018 Act and subclause 70.5 of the Agreement that I will identify.

75    Counsel for the applicant submitted that a comparison between the legislation and the Agreement detracts from a proper analysis of the meaning of the words in the Agreement. I accept this submission. While clause 18 of the heads of agreement provided that the Agreement would pick up some definitions from the 2018 Act, and align the provisions to the greatest extent possible, complete alignment did not occur. Further, no reasonable construction of subclause 70.5 of the Agreement could bring about complete alignment. That is because while some of the terminology in s 12 of the 2018 Act has been picked up, the way in which subclause 70.5 of the Agreement has deployed that terminology is different.

76    Section 12(3) of the 2018 Act has as its focus periods of absence from work of longer than 12 weeks by casual or seasonal employees. Under the Act, a casual or seasonal employee’s employment is taken to be continuous despite an absence from work of longer than 12 weeks if one of the conditions in ss 12(3)(a) to (d) is engaged. As I have identified above, subclause 70.5(a)(ii) of the Agreement is structured differently. Its focus is on periods “of casual employment”, which may comprise periods of absence, but may also include periods of regular and systematic work.

77    What then is the relevance of “leave” given to casual employees? Without the intervention of statute, and without the terms of the Agreement, a casual employee who is engaged from time to time will typically not be entitled to any leave. However, under the Agreement, casual employees are entitled to some, but not all, types of leave. There may be leave given to casual employees of at least three types: (1) paid leave, such as parental leave or long service leave accruing under the Agreement or under applicable legislation; (2) unpaid leave of the types referred to by subclause 19.7 of the Agreement; and (3) other leave that may be given by an employer such as Monash Health to a casual employee pursuant to its own policies, or on an ad hoc basis. The taking of leave by a casual employee is capable of attracting the operation of one of the provisions of subclauses 70.5(b) and (c). But there is no reason why a period of unpaid leave by a casual employee could not also contribute to a period of Continuous Casual Employment under subclause 70.5(a)(ii) if, for instance, the period was less than 12 weeks, thereby engaging condition A, or if the employer and employee agreed before the start of the absence to treat the employment as continuous, thereby engaging condition E. Such a construction would be consistent with the evident beneficial purpose of the long service leave provisions in the Agreement.

78    Counsel for Monash Health relied on claimed anomalies if the arguments advanced on behalf of the applicant were accepted, and in particular the operation of the transitional provisions in subclause 70.11 (see [10] above). On the construction of subclause 70.5 that I have set out above, no significant anomalies of the type referred to by Monash Health arise. Subclause 70.11 and the notes within it apply to all employees: no distinction is drawn between permanent and casual employees. It sits alongside subclause 70.5(b)(vii), which is the primary reference point for determining whether service by a casual employee is to count as Continuous Service. To the extent that subclause 70.11 might have work to do in relation to casual employees, it complements subclause 70.5(b)(vii) and does not qualify it. Subclause 70.11 is expressed as an exception to subclause 70.5(b), which is concerned with all the periods that count towards Continuous Service. The effect of approving retrospectively a period of unpaid parental leave is to create another period which under subclause 70.5(b) contributes to a period of Continuous Service where otherwise Continuous Service would have been broken.

79    The submissions of counsel for the applicant relied on conditions B and C of subclause 70.5(a)(ii), to which I will now turn.

Condition B

80    Condition B is concerned with a period of casual employment, and not a period of absence from work. The period of casual employment has the attributes that: (a) the employee had been employed on a regular and systematic basis; and (b) the employee had a reasonable expectation of being re-engaged by the same employer. Questions arise involving the appropriate focal length of the lens that is to be applied to ascertain the period over which employment must be regular and systematic, and at what point in time the employee must have had a reasonable expectation of being re-engaged. The answers to these questions are to be found in the terms of the Agreement which have as an assumption that Continuous Casual Employment may comprise separate periods of employment, and gaps or absences.

81    Employment during a period that engages condition B must have been on a regular and systematic basis. Both these characteristics involve questions of fact and degree, and characterisation. Regularity of casual employment, and whether it was on a systematic basis, is to be ascertained by looking back. That is because the purpose of these provisions of the Agreement is for the subsequent calculation of long service leave entitlements, or payment in lieu: see, albeit in a different context, the findings of Jackson J in Bronze Hospitality Pty Ltd v Hansson (No 2) [2019] FCA 1680; 290 IR 344 at [36]-[37]. Depending upon the circumstances, regularity of employment does not require that the frequency or pattern of the employment within a given period always be the same: see Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; 149 IR 339 (Yaraka) at [68] (Crispin P and Gray J). It is the employment or engagement that must be regular and systematic, and not the hours that are worked, which may vary between engagements: Yaraka at [65] (Crispin P and Gray J). And if there is a substantial change in the frequency or pattern of employment, then this may give rise to a new period of Continuous Casual Employment with a different pattern of regularity that may be aggregated with adjoining periods of employment so as to contribute to Continuous Service. In such circumstances, condition A may be relevant because it has the effect that a period of less than 12 weeks between particular instances of employment will itself qualify as a period of Continuous Casual Employment. As to the characteristic of the employment being systematic, this does not require predictability. Rather, it is sufficient “that the pattern of engagement occurs as a consequence of an ongoing reliance upon the [employee’s] services as an incident of the business by which he or she is engaged”: Yaraka at [69] (Crispin P and Gray J), [71] and [89] (Madgwick J).

82    As to the second question, the reasonable expectation of re-engagement must also have existed during the period of regular and systematic employment that is in issue, meaning throughout that period. That also is a result of the terms of condition B construed in the context of subclause 70.5(a)(ii) which requires employment on a regular and systematic basis, and a reasonable expectation of being re-engaged by the same employer. I note by way of observation that a similar conclusion was reached by Jackson J in Bronze Hospitality Pty Ltd v Hansson (No 2), particularly at [39]-[40], in relation to the differently expressed terms of s 384(2)(a)(ii) of the Fair Work Act.

83    Applying these principles to the case at hand, I have reached the conclusion that the impugned periods of absence of Ms Al-Fares and Ms Cameron did not fall within condition B.

84    The focal length that is required here is to treat the periods of absence and periods of regular and systematic employment as separate periods for the purpose of the application of subclause 70.5(a)(ii). Monash Health accepted that each nurse satisfied condition B for any periods of casual employment that adjoined the relevant periods of absence. During the periods of absence, however, there was no regular and systematic employment, with the consequence that condition B did not apply to those periods.

85    In relation to Ms Al-Fares, her casual employment between 16 August 2009 and 17 December 2017 did not constitute one overarching period of regular and systematic casual employment. Rather, Ms Al-Fares’ relationship with Monash Health over that time is better seen as comprising five distinct periods. There were three periods of regular and systematic casual employment, lasting about 122 weeks, 50 weeks, and 100 weeks, respectively. Between each of these periods of regular and systematic casual employment were two lengthy periods without work, totalling over three years. These two significant periods — of 86 weeks and 75 weeks, respectively — of paid and unpaid leave, during which there were no instances of engagement, were not in themselves periods of regular and systematic casual employment. As a matter of fact and degree, the relative length of Ms Al-Fares’ breaks in employment, along with the fact that there were two such breaks, means that the time between 16 August 2009 and 17 December 2017 cannot be described as a single period of regular and systematic work, nor as part of any overarching period that encompasses the whole of Ms Al-Fares’ relationship with Monash Health.

86    Nor, in any event, did Ms Al-Fares have a relevant expectation of re-engagement. That is not because she did not expect to be re-engaged at the end of her periods of parental leave, for that is not the correct focus. The reasonable expectation of re-engagement relates to re-engagement during a period of regular and systematic casual employment, which did not exist during the two periods of Ms Al-Fares’ parental leave.

87    In relation to Ms Cameron, her first period of absence was between 2 August 2010 and 24 November 2010 following her resignation from permanent employment. During that period, she did not engage in regular and systematic employment with Monash Health, and while she had an expectation of being re-engaged as a casual employee upon returning from Queensland, her expectation of re-engagement did not relate to regular and systematic employment for the period in question. Nor did Ms Cameron engage in regular and systematic employment with Monash Health during the period she received medical treatment to her foot and her recovery from that treatment.

88    Further, Ms Cameron’s case is complicated by the fact that her first period of absence came between a period of work as a full- and part-time employee, and a period of casual employment. This fact undermines the contention that Ms Cameron’s first absence should be subsumed within a longer period of regular and systematic casual employment, since no such hypothetical period could span both before and after Ms Cameron’s first absence. While Ms Cameron’s second absence does not face this obstacle, the point remains that Ms Cameron’s second absence was lengthy, which tends against the conclusion that it was a mere blip in an otherwise overarching period of regular and systematic casual employment. In any event, Ms Cameron did not possess the required expectation of being re-engaged while she was recovering from her treatment.

89    In order for any of these periods to amount to a period of Continuous Casual Employment, or a period that did not break Continuous Service, the period would have to qualify for a period of absence or a gap between engagements that is covered by another condition within subclause 70.5(a)(ii), or a period of leave that is covered by subclause 70.5(b) or (c).

90    These conclusions direct attention to condition C, which was the other ground on which the applicant submitted the relevant absences amounted to Continuous Casual Employment that counted towards Continuous Service of Ms Al-Fares and Ms Cameron. No other periods of absence specified in subclause 70.5(b) or (c) were relied upon.

Condition C

91    I do not accept the applicant’s submission that the periods of absence that are in issue were gaps between engagements that were due to the terms of engagement of the two nurses as casual employees.

92    I referred earlier to the fact that condition C picks up some of the text of s 12(3) of the Victorian 2018 Act, although it uses the term “gap between engagements” rather than “absence”. I have also referred to the corresponding provision in s 4(11)(a1)(i) of the New South Wales Act, which I set out at [13] above. In relation to that provision, the New South Wales Industrial Commission in AJ Mills & Sons Pty Ltd v Transport Workers’ Union of New South Wales [2009] NSWIRComm 135; 187 IR 56 (AJ Mills) at [122] held that for the provision to apply, a term of the employee’s employment must have caused the interruption or determination –

122    Any inquiry about whether s 4(11)(a1)(i) applies must ask whether the interruption or determination breaking the worker’s service was caused by the absence of the worker under the terms of the worker’s employment. In other words, in order for s 4(11)(a1)(i) to apply, a term of the worker’s employment must have caused the interruption or determination. The search, therefore, must be directed to the terms of the worker’s employment. This would involve a consideration of the workers’ contracts of employment (and a search for either an express or implied term) and the relevant industrial instrument. The term to be discovered would be to the effect that, “It is a term of your employment that you will be absent for the period of the off-season”.

93    I find this reasoning persuasive in relation to the construction of subclause 70.5(a)(ii)C, the text of which requires that the gap between engagements be “due to the terms of engagement of the casual employee”. Like the legislation under consideration in AJ Mills, the terms of subclause 70.5(a)(ii)C denote a causal connection between the terms of the engagement and the absence. Consistently with the approach of the High Court in WorkPac Pty Ltd v Rossato, the terms of engagement will be found in the contracts. It was a written term of engagement of Ms Al-Fares that she was free to accept or reject offers of employment. It is to be inferred that when Ms Cameron worked as a casual employee, her terms were much the same. A gap between engagements owing to a choice to decline shifts for a period, for reasons including parental leave, travel, and illness or injury, is not to be characterised as a gap between engagements due to the terms of the engagement. The case rose no higher than pointing to procedures for notifying the Monash Health Bureau of periods of proposed absence. The applicant did not point to any terms of the nurses’ respective engagements that caused the gaps between engagements that are in issue.

Conclusions

94    The applicant has not established that Monash Health contravened the Agreement in declining Ms Al-Fares’ requests for long service leave, and has not established that it is entitled to a declaration that Ms Cameron has accrued an entitlement to long service leave in the terms that were advanced.

95    The proceeding will be dismissed. Subject to consideration of any submission to the contrary, there will be no order as to costs: Fair Work Act s 570.

Associate:

Dated:    24 May 2024