One Minute Summary

• The Fair Work Commission has issued a decision on what appears to be the first casual conversion dispute that has proceed to arbitration since the new casual provisions were introduced into the Fair Work Act in 2024. 
• The employee, a casual academic worked regular hours teaching a core subject (based on semester timetable) in addition to a range of irregular additional casual shifts on other projects.
• The Commission has steered through an overly complicated assessment system to come to the conclusion that the regular core hours were sufficient to allow the employee to convert to part-time.
• Part-time employees have set hours where additional hours can be agreed to or paid at overtime rates.
• How does the University now deal with the irregular extra casual hours – in addition to his now regular part-time hours? Perhaps the employee is only rostered to work his base part-time hours teaching the one core subject and is missing out on the other assignments.
• While this decision was based in academia it does provide some guidance on how the Commission may treat future casual conversions. It’s complicated.

In what appears to be the first arbitrated case for a casual to permanent conversion, the Fair Work Commission has determined a casual academic should be converted to permanent part-time. These conversion changes were introduced into the Fair Work Act in August 2024.

Mr Baker had been employed in a casual capacity with Macquarie University since 2023. On 5 November 2025 he provided the University with written notice that he believed his employment no longer met the requirements for casual employment under the Fair Work Act. As Mr Baker and the University were unable to resolve the dispute in subsequent meetings he lodged a dispute with the Commission. Following conciliation and initial jurisdictional arguments by the University, the matter was listed for arbitration in August 2026.

The National Employment Standards include a provision allowing casual employees, who believe they are no longer a casual employee, to provide written notice to their employer. The employer must provide a written response. Where an employer disagrees with the employee they must provide their reasons for doing so. These may include that they believe the employee still meets the casual definition in the Act and/or there are fair and reasonable operational grounds for not accepting the employee’s request. The operational grounds are based on the following:

• Substantial changes would be required to the way in which work is organised.
• There would be significant operational impacts on the employer’s enterprise.
• Substantial changes to the terms and conditions of the employee’s employment would be necessary to ensure the employer does not contravene a Fair Work Award or Agreement.

Where the employee and employer continue to disagree, the employee can lodge a dispute in the Commission where the above factors will be examined closely.

In relation to Mr Baker’s dispute, Commissioner Crawford examined the new Fair Work Act casual conversion provisions. The process appears to be somewhat complicated. In the decision the Commissioner states, ‘The interaction between the definition of a casual employee in s.15A and the employee choice provisions in the National Employment Standards is not entirely clear.’  (s15A is addressed below)

In assessing whether the employment relationship could be characterised by an absence of a firm commitment to continuing and indefinite work (S15A(1)) the Commission reviewed each of the indicia in the Act that determine this. These include:

• Assessing the real substance, practical reality and true nature of the employment relationship.
• The nature of the any commitment in a contract or from any mutual understanding or expectation.
• The following four considerations which may indicated the nature of such commitment.

-The inability of the employer to elect to offer or not offer work or the ability of the employee to accept or reject work.

-Having regard to the nature of the employer’s enterprise it is reasonably likely there will be future availability of continuing work of the kind the employee performs.

-Do permanent employees perform the same kind of work usually performed by the casual employee in the employer’s enterprise.   

-Whether there is a regular patter of work for the employee.

In relation to the last point the Commissioner added ‘A pattern can be regular even if it is not uniform and includes some fluctuations or variation over time’.

In relation to the above provisions the Commissioner summed it up as follows: ‘If the above interpretation is correct, the Commission’s role is essentially to determine whether the employee meets the definition of casual employment in s.15A. If the employee continues to meet the definition in s.15A, an order cannot be made for the employee to be treated as a full-time or part-time employee because that would be contrary to s.15A.’

Examining the facts in Mr Baker’s matter the Commission applied the principles of section 15A.  Key elements of the facts are as follows:

• Since 2023 Mr Baker had taught established subjects and developed new subjects.
• He taught the same core subject in Semester 1 and 2 in 2025 and was asked (in late 2025) to teach that same subject again in Semester 1 and 2 in 2026.
• He also worked intermittent additional hours - additional one off lecturing, assisting a PHD student, as part of a high school outreach program and was part of an AI integration working group.
• He estimated he worked about 900 casual hours in 2025 – averaging about 17 hours a week.
• His employment contract has a clause that expressly refers to there being no guarantee of ongoing work.

The Commissioner then examined whether the above facts indicated ‘an absence of a firm advance commitment to continuing and indefinite work’.

Mr Baker argued that despite the clause about no guarantee of ongoing work in his contract the opposite has been evidenced by his 2025 to 2026 teaching requests.

The Commissioner also noted that in reality it was not practicable for Mr Baker to reject his casual teaching shifts from week to week – given the lecturing schedule he had been requested to fulfill in advance.

He also noted that, given he was teaching a core subject, ‘it was reasonably likely that Mr Baker’s teaching work in the School of Computing will continue being available at Macquarie University in the future’

Referring back to s15A, the Commissioner note the University employed other staff in permanent roles undertaking similar work to Mr Baker.

The Commissioner accepted Mr Baker’s core teaching work was regular – the teaching/lecturing roster was based on the semester and student timetable.  Although the timing of Mr Baker’s lectures and associated work may vary from semester to semester, there is a regular pattern to the teaching work that Mr Baker performs.

‘My overall assessment on balance is that Mr Baker’s employment relationship with Macquarie University is not characterised by an absence of a firm advance commitment to continuing and indefinite work. Mr Baker has been consistently engaged to perform teaching work since 2023.

‘I find that Mr Baker did not meet the definition of a casual employee in s.15A of the FW Act when he made the notification to Macquarie University on 5 November 2025’

The Commissioner thereafter made the order that Mr Baker become a permanent part-time employee.

Commentary

Let’s start with the obvious – Mr Baker was not employed as a ‘casual – casual’ – i.e. being asked to work haphazardly to cover the absence of other lecturers when they are on personal leave etc.

The evidence suggests, that even though there was a regular core pattern in relation to some teaching subjects he was also undertaking other work in a manner which could be classed as casual – the AI project, schools outreach, assisting a PHD student and lecturing in other subjects. There was a combination of regular teaching plus haphazard hours which are synonymous with casual employment.

Let’s now try and translate that type of arrangement into a part-time hours arrangement.  When assessing Enterprise Agreements, the Fair Work Commission is pedantic about a comprehensive permanent part-time work clause (which matches the underlying Award) with overtime being paid for any work outside the regular set part-time hours – unless the employee agrees to a signed variation of hours. This is quite restrictive and doesn’t match the hours required. I wonder if Mr Baker will still be able to gain broader experience with the additional projects or will he only be required to undertake his minimum core lecturing duties under his new part-time arrangement.

This section of the Act appears overly complicated. Reading the decision it almost appears as if the Commissioner is thinking out loud and carefully walking us through the provisions. This is not good drafting.

In relation to one of the indicia ‘whether there is a regular patter of work for the employee’, the Commissioner added ‘A pattern can be regular even if it is not uniform and includes some fluctuations or variation over time’. From a practical perspective many employers are likely to have similar casual arrangements in place – regular hours plus additional hours as needed. This arrangement has benefited both the employer and the employee.  

Employers appear to lose on both fronts – firstly they lose out on the flexibility of casual engagements, nor are they able to work with the tight permanent part-time rules in most Awards and Enterprise Agreements.

Please contact Hunter Employee Relations if you are seeking advice in relation to casual employment arrangements.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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