The decision in Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[2010] FWA 2078 in some ways paved the way for casual employees to bring an unfair dismissal claim in reliance upon s 384(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

The applicant in the case, Cori Ponce, worked for the respondent company daily and nightly over a 21 month period, satisfying the s 384(2)(a) requirement of employment on a regular and systematic basis, while also meeting the six month minimum employment period set out in s 383(a) of the Act. Commissioner Roe who oversaw the matter, articulated the principles attached with employment on a regular and systematic basis, which included the following observations:

· Regular and systematic does not necessarily mean the hours and days must be regular and systematic: Commissioner Roe found that ‘regular and systematic’ under the Act, meant that there must be “sufficient evidence to establish that a continuing relationship between the employer and the employee has been established” – which is the reason why the Act has included within its provisions, that an employee must also have a reasonable expectation of continuing employment.

· If the hours worked are small, and the gaps between days and times worked is long, other evidence must be produced to demonstrate regular and systematic employment:in instances where there is no clear pattern of employment, evidence of employment on a regular and systematic basis can also include the following: the employer regularly offered work when suitable work was available at the times when an employee has made him or herself available to work for the employer; and work had been offered and accepted on a sufficient basis where it can be no longer regarded as simply occasional or regular.

· Hours worked by the employee were similar or exceed full-time ordinary hours can also be deemed as strong evidence of regular and systematic employment.

· The reasonable expectation of continuing employment is not only about having that expectation at the moment of termination, but the expectation during the period of service as well.

Generally, a contract of employment will have both express and implied obligations to ensure the employer’s confidence. In Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167, Fullagar J said that express and implied contractual obligations protecting confidential information of the employer will (at 190), “depend for their existence and their attributes solely upon the law of contract. They are obligations at common law, although of course equity may act in their enforcement if the ordinary conditions for equity’s intervention are met.”

Section 165 of the Australian Consumer Law sets out multiple pricing offences that are the same as the civil pecuniary penalties. Additionally, a body corporate or other persons committing an offence against s 165 is one of strict liability. Therefore, intent is not a consideration for a person committing the offence.

We can turn to the Secondary Explanatory Memorandum for more context in relation to the offence:

“The strict liability nature of the offence reflects the potential for widespread detriment, both financially for individual consumers and for its effect on the market and consumer confidence more generally, that can be caused by a person that breaches this provision, whether or not he or she intended to engage in the contravention.

For a person to be found liable of contravening the s 35(1) of the Australian Consumer Law (the ACL) provisions of bait advertising, is dependent on the person’s knowledge during the time of when the advertising was directed to the consumer. The s 35(2) provisions, creates an absolute liability towards the advertiser, by obliging him or her to offer the goods and services which is advertised to be supplied.

One of the elements of the s 35 provisions is that of reasonableness, and reasonableness will be dependent on the nature of the product that is being advertised, as well as the length of the sale of the advertised product. In ascertaining reasonableness, past practices may also be taken into account.

One of the important aspects for anyone engaged in trade or commerce is not to engage in misleading or deceptive conduct, or conduct that is likely to mislead or deceive, as outlined in s 18(1) of the Australian Consumer Law (the ACL). However, most business owners will be asking themselves, what constitutes “misleading or deceptive” conduct? It’s an important question to ask and this piece will provide a brief introduction to representations that are misleading, or likely to mislead.

Although s 18(1) doesn’t define what behaviours constitute misleading or deceptive conduct, we can look to case law for some guidance to s 18(1), where the concept has been interpreted by the courts in relation to s 52 of the Trade Practices Act 1974 (Cth) (the TPA). Gibbs CJ held in Parkdale Custom Built Furniture Pty Ltd Puxu Pty Ltd (1982) 149 CLR 191:

“The words of s 52 require the Court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words “mislead” and “deceive” share in common is “to lead into error”. If the word “deceptive