Casual Conversion: Two Landmark FWC Decisions Signal Increased Scrutiny of Casual Employment

Recent Fair Work Commission (FWC) decisions have provided important guidance on the operation of the new casual conversion framework introduced through the Fair Work Act’s employee choice pathway. Together, the decisions reinforce a consistent message for employers: simply labelling a worker as “casual” in an employment contract is no longer sufficient if the reality of the working relationship demonstrates an ongoing, regular, and predictable pattern of work.

The decisions in Baker v Macquarie University and Fedele v Technical and Further Education Commission (TAFE NSW) are the first successful applications under the employee choice pathway and provide valuable insight into how the FWC will assess whether a casual employee should instead be treated as a permanent employee.

Case 1: University Teacher Successfully Converts to Part-Time Employment

In Baker v Macquarie University, a computer science teacher, engaged as a casual employee since 2023, submitted a notification under the employee choice provisions asserting that he no longer met the definition of a casual employee. Although his employment contract clearly described him as a casual employee with no guarantee of ongoing work, the FWC found that the practical reality of the employment relationship told a different story.

Factors influencing the FWC’s decision included:

• Ongoing engagement teaching the same subjects across consecutive semesters.
• A regular and predictable pattern of work linked to university timetables.
• An expectation that work would continue from semester to semester.
• Permanent employees performing the same type of work.
• Work that formed part of the university’s ongoing operational requirements.

The FWC concluded that the arrangement was more akin to recurring part-time employment than genuine casual work and ordered that the employee be treated as a permanent part-time employee.

Case 2: TAFE Teacher Found to be an “Important, Regular and Ongoing” Worker

In Fedele v TAFE NSW, a casual painting and decorating teacher who had worked with TAFE since 2022 also successfully challenged his casual status. TAFE relied on a contract stating there was no guarantee of work, and no firm advance commitment to ongoing employment. However, the FWC focused on the actual conduct of the parties.

Key factors included:

• Regular teaching schedules that were effectively locked in for a semester.
• Evidence that both parties expected the work to be performed each week.
• Continuing demand for teaching work due to workforce planning requirements.
• Full-time and part-time employees performing identical work.
• A regular pattern of work despite breaks between academic semesters.

Importantly, the FWC clarified that breaks between semesters do not automatically prevent a finding that an employee has a regular pattern of work. Under the Fair Work Act, a work pattern may still be considered regular even where there are periods of inactivity. The FWC found that the teacher had become an “important, regular and ongoing” part of TAFE’s teaching operations and indicated it was fair and reasonable that he be treated as a part-time employee

2. Regular and Predictable Work Creates Risk

In both cases, employees were working:

• Consistent rosters or teaching schedules.
• Regular hours over extended periods.
• Recurring duties that formed part of normal business operations.

The more regular and predictable the work becomes, the greater the risk that an employee may no longer satisfy the statutory definition of a casual employee.

3. Ongoing Operational Need is Significant

The FWC considered whether the employer was likely to have continuing work available. Where a worker performs duties that are essential to ongoing operations and there is an expectation that the work will continue indefinitely, this may indicate a firm advance commitment to continuing employment.

These cases serve as a timely reminder that casual employment arrangements require continuous monitoring, not just careful drafting at commencement.

Employers should consider:

• Regularly auditing casual work arrangements.
• Reviewing whether casual employees are working predictable and ongoing patterns of hours.
• Monitoring employees who have been engaged continuously over multiple months or years.
• Training managers on the risks associated with creating expectations of ongoing work.
• Assessing whether operational practices remain consistent with the terms of casual employment contracts.
• Developing a structured process for assessing employee choice notifications and casual conversion requests.
• Ensuring workforce planning considers whether some long-term casual roles would be more appropriately filled by permanent part-time employees.

The first successful employee choice pathway decisions demonstrate that the FWC will closely examine the substance of the employment relationship rather than simply accepting contractual labels.

For employers, the message is clear: if a casual employee has become a regular, ongoing and integrated part of the workforce, there is a growing risk that they may successfully seek conversion to permanent employment.

Proactive reviews of casual work arrangements, regular communication between operational leaders and HR, and early identification of conversion risks will be critical in managing compliance and avoiding disputes under the evolving casual employment framework.

If you have concerns or questions regarding casual employment arrangements, please contact us below and one of Workplace Strategists will be in touch within 24 hours.