This is the first decision I can recall in the Fair Work Commission in an arbitration of a dispute about conversion from casual to permanent employment.
BACKGROUND
[1]
Gregory Baker has performed teaching work in the School of Computing at Macquarie University since 2023. On 5 November 2025, Mr Baker provided Macquarie University with written notice pursuant to s.66AAB of the Fair Work Act 2009 (FW Act) that he believes his employment with Macquarie University no longer meets the requirements of casual employment under s.15A(1) to (4) of the FW Act. Macquarie University did not accept Mr Baker’s notification. Mr Baker and Macquarie University were unable to resolve the dispute during a subsequent meeting and further written communications. Mr Baker lodged a dispute with the Commission on 23 December 2025. The dispute was not resolved during a conciliation conference on 27 January 2026. The dispute was referred for arbitration pursuant to s.66MA of the FW Act. This decision contains my arbitrated resolution of the dispute.
[2]
This application has taken longer to determine than I would have liked. There were a range of reasons for that. One of the main reasons was that during the hearing on 12 May 2026 a new issue emerged regarding whether terms in the Macquarie University Academic Staff Enterprise Agreement 2023 (Agreement) may be inconsistent with the National Employment Standards (NES) if they prevent Mr Baker from converting to part-time or full-time employment under Part 2-2 of the NES. I provided the parties with an opportunity to file written submissions on this point, and a further hearing was held on 6 August 2026.
[3]
Mr Baker provided evidence in support of his application. Macquarie University relied on evidence from Professor Nathan Hart (Deputy Dean, Research and Innovation, Faculty of Science and Engineering) and Nicholas Crowley (Head of Employee Relations).
[2026] FWC 3054
DECISION
[2026] FWC 3054
2
STATUTORY PROVISIONS
[4]
This dispute concerns casual employment conditions in the FW Act which commenced operating on 26 August 2024 and do not appear to have been considered in any previous decisions. The following is a summary of the relevant provisions.
Definition of a casual employee
[5]
A general rule about the meaning of casual employment is contained in s.15A(1). The general rule is that an employee is a casual employee of an employer only if:
•
the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
•
the employee would be entitled to a casual loading or specific casual rate under a fair work instrument or contract of employment.
[6]
The assessment of whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work must be undertaken in accordance with the terms of s.15A(2) to (4). The effect of these terms is that:
•
The real substance, practical reality, and true nature of the employment relationship must be assessed.1
•
A firm advance commitment can be in the form of a contract, or a mutual understanding or expectation that falls short of being a contractual term. A mutual understanding or expectation can be inferred from conduct that occurs after the contract is entered into.2
•
The following considerations must be assessed, but no single consideration is determinative3:
–
Whether there is an inability of the employer to elect to offer or not offer work, or an inability for an employee to elect to accept or reject work.
–
Whether it is reasonably likely that the work usually performed by the employee will continue being available in the enterprise in the future.
–
Whether full-time or part-time employees are performing the same type of work that is usually performed by the employee.
–
Whether there is a regular pattern of work for the employee. A pattern can be regular even if it is not uniform and includes some fluctuation or variation over time.4
1 Section 15A(2)(a).
2 Sections 15A(2)(b) and 15A(3)(a).
3 Section 15A(3)(b).
4 Sections 15A(2)(c) and 15A(3)(c).
[2026] FWC 3054
3
•
An award covered non-public sector employee on a fixed term contract who is a member of the academic or teaching staff of a higher education institution is not a casual employee.5
[7]
An employee who legitimately commences employment as a casual employee within the meaning of s.15A(1) to (4) remains a casual employee until:
•
Their status changes under the employee choice provisions in Division 4A of Part 2-2;
•
The Commission orders a change to their status;
•
Their status changes in accordance with a fair work instrument; or
•
They accept an alternative offer of employment other than as a casual employee.6
NES provisions – employee choice notifications and employer responses
[8]
An eligible employee can provide written notice to their employer that they believe they no longer meet the requirements for casual employment identified in s.15A(1) to (4). An employee will generally be eligible if they have completed the relevant minimum period of employment (6 months or 12 months for a small business employer) and have not disputed their employment status in the previous six months.7
[9]
An employer must provide a written response to the employee’s notification within 21 days.8 The employer must consult with the employee prior to providing the response.9
[10]
An employer accepting the notification must provide details about the proposed new full-time or part-time employment arrangements and discuss the proposed arrangements with the employee.10
[11]
An employer not accepting the notification must set out their reasons in the written response.11
[12]
An employer may not accept the notification on any of the following grounds:
•
The employee still meets the requirements of casual employment in s.15A(1) to (4).12
•
There are fair and reasonable operational grounds for not accepting the notification. Fair and reasonable operational grounds include:
5 Section 15A(4).
6 Section 15A(5).
7 Section 66AAB.
8 Section 66AAC(1).
9 Section 66AAC(3).
10 Section 66AAC(2)(b).
11 Section 66AAC(2)(c).
12 Section 66AAC(4)(a).
[2026] FWC 3054
4
–
Where substantial changes would be required to the way in which work in the enterprise is organised.
–
Where there would be significant operational impacts on the employer’s enterprise.
–
Where substantial changes to the terms and conditions of the employee’s employment would be reasonably necessary to ensure the employer does not contravene a fair work instrument.13
•
Accepting the notification would be contrary to public sector laws concerning recruitment or selection processes.14
Commission’s dispute resolution role
[13]
A party to a dispute about the operation of the employee notification and employer response provisions can refer the dispute to the Commission if discussions at the workplace do not resolve the dispute.15 The Commission must first try and resolve the dispute without arbitrating unless there are exceptional circumstances.16
[14]
The Commission can deal with the dispute by arbitration, including by making any orders it considers appropriate.17 The Commission must not make an order unless it considers that it would be fair and reasonable to make the order.18 An order must not be inconsistent with a provision of the FW Act or the terms of an applicable fair work instrument.19
[15]
The orders made by the Commission can include:
•
An order that the employee will continue being treated as a casual employee.
•
An order that the employee will be treated as a full-time or part-time employee from the first day of the first full pay period commencing after the order is made, or a later date that the Commission considers appropriate.20
[16]
In considering whether to make an order, and when determining the terms of any order, the Commission must:
•
Have regard to whether substantial changes to the employee’s terms and conditions of employment would be reasonably necessary to ensure the employer does not contravene a fair work instrument;21 and
13 Sections 66AAC(4)(b) and 66AAC(5).
14 Section 66AAC(4)(c).
15 Section 66M(5).
16 Section 66M(6).
17 Section 66MA(1).
18 Section 66MA(2).
19 Section 66MA(3).
20 Section 66MA(4). Note: There appears to be an erroneous reference in s.66MA(4) to paragraph (1)(a) which should be paragraph (1).
21 Section 66MA(5)(a).
[2026] FWC 3054
5
•
Disregard conduct of the employer and the employee that occurred after the employee provided the initial written notification pursuant to s.66AAB.22
Notable elements of the new provisions
[17]
The new provisions provide greater certainty in relation to casual employment and substantially reduce the risk of a court subsequently determining that a purported casual employee became a part-time or full-time employee during their employment. That is achieved by prescribing that where an employee is initially legitimately engaged as a casual employee, the nature of the employment relationship can only change in accordance with the processes identified in s.15A(5). The employer and employee would inevitably be aware of the change where one of these processes occurs.
[18]
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. The effect of the provisions directed at when an employer can decline to accept an employee’s notification appears to be that an employer can decline to accept an employee’s notification even if the employee no longer meets the requirements of casual employment in s.15A. An employer can decline to accept a notification from an employee that no longer meets the requirements of s.15A, if there are fair and reasonable operational grounds for not accepting the notification or if accepting the notification would be contrary to public service recruitment laws.
[19]
The significance of the definition of casual employment in s.15A to the Commission’s dispute resolution role is also not entirely clear. The definition in s.15A is not one of the matters identified in s.66MA(5) that the Commission must consider when deciding whether to make an order. That could potentially suggest that the Commission can form a view that an employee no longer meets the definition of a casual employee in s.15A, but then decide not to make an order that the employee be treated as a full-time or part-time employee because substantial changes to the employee’s conditions would be reasonably necessary to ensure compliance with a fair work instrument, which is a matter the Commission must consider when deciding whether to make an order under.66MA(5)(a).
[20]
However, I consider it is unlikely that the legislation is intended to operate in a way that results in an employee remaining as a casual employee, even when the Commission has concluded they are not a casual employee as defined in s.15A. I consider that odd outcome can be avoided by relying on s.66MA(3). That section states the Commission must not make an order that would be inconsistent with a provision of the FW Act. I consider an order that an employee continue being treated as a casual employee when they do not satisfy the definition of casual employment in s.15A would be an order that is inconsistent with s.15A.
[21]
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. Similarly, if the employee no longer meets the definition of casual employment, the Commission cannot order that the employee remains a casual employee because that would be inconsistent with
22 Section 66MA(5)(b).
[2026] FWC 3054
6
s.15A. The Commission can only make an order if it is satisfied it would be fair and reasonable to make the order and the Commission must have regard to whether substantial changes to the employee’s terms and conditions would be required to ensure compliance with a fair work instrument.
[22]
It is also significant that s.66MA(5)(b) states the Commission “must disregard conduct of the employer and employee that occurred after the employee gave the notification under section 66AAB (which deals with employee choice notifications) to the employer.” That provision assumed some significance in this case because it emerged in closing submissions that Mr Baker’s teaching arrangements changed in Semester 2 of 2026. I consider I am required to disregard any evidence about this because it would relate to conduct engaged in by Macquarie University and Mr Baker after Mr Baker made the notification under s.66AAB on 5 November 2025. I consider the words used in s.66MA(5)(b) are clear and the Commission cannot take account of any conduct engaged in after the notification is made. The dispute must be resolved based on an assessment of the facts that existed when the employee made the notification to the employer.
CONSIDERATION
[23]
Mr Baker was initially engaged to teach COMP3420 in both semesters of 2023. Mr Baker also supervised students completing research projects in COMP8851 during semester 2 of 2023. Mr Baker has performed the same type of supervision work for COMP8851 in every subsequent semester except for semester 1 in 2025.
[24]
Since 2023, Mr Baker has performed teaching work in COMP1000 and COMP1010 and has developed units for COMP8420, COMP3420, and COMP2200.
[25]
Mr Baker taught and convened COMP2200 in 2025 and was asked to lecture in COMP2200 in semester 1 and 2 in 2026.
[26]
Mr Baker indicated it is difficult to access data which shows the hours he has worked as a casual employee, but he estimates slightly more than 900 hours of work in 2025. That equates to around 17 hours per week. Mr Baker also performed additional work assisting a PhD student, performing work on a high school outreach program, and was part of an AI integration working group/committee.
[27]
In closing submissions, Mr Baker submitted that the case can be decided by focusing on COMP2200. Mr Baker submitted that COMP2200 is a core subject in the School of Computing and that when he provided his notification on 5 November 2025:
•
Mr Baker had lectured in COMP2200 in Semester 1 and 2 of 2025.
•
Mr Baker had been allocated to lecture for COMP2200 in Semester 1 and 2 of 2026.
[28]
Mr Baker submitted that when he made the notification on 5 November 2025 his employment relationship with Macquarie University was characterised by a firm advance commitment to continuing and indefinite work lecturing in the COMP2200 subject.
[2026] FWC 3054
7
[29]
Turning then to the requirements of casual employment in s.15A, it is clear Mr Baker would be entitled to casual rates of pay under Schedule 2 of the Agreement. Therefore, the assessment turns on whether Mr Baker’s employment relationship with the University is characterised by an absence of a firm advance commitment to continuing and indefinite work.
[30]
Mr Baker does not have a firm advance commitment in the form of a contract with Macquarie University. Mr Baker is engaged under a reasonably standard casual employment contract which expressly refers to no guarantee of ongoing work.
[31]
Mr Baker submits a firm advance commitment to continuing and indefinite work can be found to exist based on a mutual understanding or expectation between Mr Baker and Macquarie University which can be inferred from the conduct of the parties.
[32]
The overall assessment of Mr Baker’s employment relationship with Macquarie University must involve consideration of the matters identified in s.15A(2)(c). My findings in relation to those prescribed matters are:
•
There is a degree of inability for Macquarie University to elect not to offer work to Mr Baker and for Mr Baker to reject work. That arises because Mr Baker was performing the critical role of lecturing for COMP2200. There would obviously be significant disruption for the students if Mr Baker had the ability to decide whether to perform lecturing work from week to week. I consider this consideration weighs in favour of Mr Baker being a non-casual employee. However, there does appear to be an ability for Macquarie University and Mr Baker to revisit their arrangements after each semester. I consider the fact that the engagements are largely confined to each semester reduces the weight that should be afforded to this matter in the overall assessment.
•
It is reasonably likely that Mr Baker’s teaching work in the School of Computing will continue being available at Macquarie University in the future. The COMP 2200 subject appears to be a core part of the School of Computing and Mr Baker can also teach other subjects with the school. This consideration weighs in favour of Mr Baker being a non-casual employee.
•
There are full-time and part-time employees at Macquarie University performing the same type of teaching work that Mr Baker performs. This consideration weighs in favour of Mr Baker being a non-casual employee. However, there is also a distinction in that full-time and part-time employees are not exclusively performing teaching work. Full-time and part-time employees have designated workloads that include portions of research, leadership, or other services. I consider the fact that there is a distinction between the totality of work performed by Mr Baker and the totality of work performed by full-time and part-time employees reduces the weight that should be afforded to this matter in the overall assessment.
•
There is a regular pattern to Mr Baker’s work, albeit only for the temporary period of a semester. Mr Baker performs his teaching work in accordance with a regular pattern based on Macquarie University’s timetable which is issued to students each semester. 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
[2026] FWC 3054
8
performs. I consider this consideration weighs in favour of Mr Baker being a non-casual employee. I note s.15A(3)(c) states a pattern of work can be considered regular even if it is not absolutely uniform and includes some fluctuation or variation over time.
[33]
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. The teaching work Mr Baker has been performing is required by Macquarie University on an ongoing basis. Macquarie University is more reliant on Mr Baker performing regular and scheduled work than would normally be the case with a casual employee. Mr Baker gets allocated subjects to teach throughout a semester. The assessment is complicated by the fact that teaching work is generally confined to the semester periods which only run for around half of the calendar year. However, I consider this means the work is potentially more akin to recurring fixed-term periods of part-time employment, rather than genuine casual employment.
[34]
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 2026. That finding means it would not be inconsistent with s.15A of the FW Act for me to make an order that Mr Baker be treated as a part-time employee.
[35]
Macquarie University submitted that an order could not be made for Mr Baker to be treated as a part-time employee because he only performs teaching duties. Macquarie University submitted that the job family conditions in clause 18 of the Agreement do not permit an employee to be engaged on a part-time basis to perform only teaching work. I am not sure that is necessarily the case under the terms of clause 18. I think there is likely enough flexibility in the terms used in clause 18 to allow Mr Baker’s engagement to fall within the Technical/Industry/Commercial Academic job family or the Teaching and Leadership Academic job family.
[36]
In any event, I consider if the effect of clause 18 of the Agreement is that it prevents Mr Baker from accessing part-time employment through the casual employee choice provisions in the NES, the clause would be inconsistent with the NES because it would remove Mr Baker’s NES entitlement to access the employee choice provisions. Clause 18 of the Agreement would have no effect to the extent that it prevents Mr Baker accessing the employee choice provisions pursuant to s.55 and s.56 of the FW Act.
[37]
I consider the situation here is analogous to that assessed by the Full Bench in Paper Australia Pty Ltd v Anthony May23. In that case, the Full Bench determined that the right of an employee under the NES to have a request for flexible work refused only on reasonable business grounds cannot be detrimentally constrained by an enterprise agreement and that an agreement term that does so has no effect, but only to the extent that it detrimentally constrains an employee’s rights to seek access to flexible work under the NES.24
[38]
Macquarie University referred to the restriction on making an order which is inconsistent with a fair work instrument in s.66MA(3) of the FW Act, which is part of the NES, to argue that the Agreement can include terms that are inconsistent with the NES. I consider
23 [2025] FWCFB 224.
24 Ibid at [67].
[2026] FWC 3054
9
that is incorrect for the reasons identified in Mr Baker’s submissions. An order for Mr Baker to be treated as a part-time employee would not be inconsistent with the terms of the Agreement because the terms of the Agreement are effectively modified by s.56 to ensure Mr Baker can access the employee choice conditions. An order for Mr Baker to be treated as a part-time employee would not be inconsistent with the Agreement as modified by s.56.
[39]
I have found 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 2026 and that the terms of the Agreement do not prevent me making an order for Mr Baker to be treated as a part-time employee. I am now required to consider the factors identified in s.66MA before deciding whether to make an order and before deciding about the terms of an order.
[40]
Section 66MA(2) states an order must not be made unless the Commission considers it would be fair and reasonable to make the order.
[41]
Section 66MA(5)(a) states that when the Commission is considering whether to make an order and the terms of any order, the Commission must have regard to whether substantial changes to the employee’s terms and conditions would be reasonably necessary to ensure the employer does not contravene a term of a fair work instrument.
[42]
The parties largely agreed during the hearing on 6 August 2026 that if an order is to be made for Mr Baker to be treated as a part-time employee, the appropriate FTE proportion would be 0.1. That would equate to a guarantee of 3.5 hours of work per week for Mr Baker. While the evidence suggests this figure is lower than the hours that Mr Baker was regularly working each week when the notification was made, I consider a lower figure is appropriate because Mr Baker’s teaching work is predominantly performed during semester periods. I consider Mr Baker being treated as a part-time employee working 0.1 FTE hours averaged over the course of a 12-month period would be fair and reasonable. This arrangement will effectively mean Mr Baker is guaranteed 182 hours over the course of the year. Mr Baker can be paid for 3.5 hours per week in accordance with Macquarie University’s normal pay cycles. If Mr Baker works more than 182 hours during the year, he will be entitled to additional payments in accordance with the Agreement.
[43]
While Macquarie University opposes the making of any order, it did helpfully make submissions on what an order should look like if one is made. I consider my proposed order is largely consistent with what Macquarie University suggested.
[44]
While Mr Baker would prefer a higher FTE figure, Mr Baker submitted during the hearing on 6 August 2026 that he would be content with a 0.1 FTE figure averaged over a year.
[45]
I consider an order that Mr Baker be treated as a part-time employee working 0.1 FTE hours averaged over a 12-month period is fair and appropriate and will not require substantial changes to Mr Baker’s conditions to ensure Macquarie University does not contravene the Agreement. I do not consider Mr Baker being guaranteed an average of 3.5 hours of work per week based will be overly problematic for Macquarie University. To the contrary, cost savings may be achieved because the casual teaching rates are considerably higher than the part-time rates of pay in the Agreement.
[2026] FWC 3054
10
[46]
I do not consider it is necessary to deal with what work Mr Baker will perform in the order. I am content to leave that issue to Mr Baker and Macquarie University to determine.
[47]
In addition to the casual teaching work that has given rise to this application, Mr Baker has been performing other types of work for Macquarie University through separate casual employment contracts. Those other engagements have not been relied upon by Mr Baker in support of his request for part-time employment because he accepts they are genuinely casual in nature. My order is not intended to prevent Mr Baker being engaged under other separate casual employment contracts by Macquarie University.
[48]
Section 66MA(4)(b) of the FW Act states an order for an employee to be treated as a full-time or part-time employee is to take effect from the employee’s first full pay period that starts the day after the order is made, or such later day that the Commission considers appropriate.
[49]
I consider it is appropriate for the order to take effect 28 days from the date of this decision. I consider a slightly longer period will assist the parties to ensure that everything is in order when Mr Baker commences part-time employment.
ORDER
[50]
I order that Mr Baker be treated by Macquarie University as a 0.1 FTE part-time employee from 28 days after the date of this decision. The 0.1 FTE part-time hours are to be averaged over a 12-month period but paid consistently in accordance with Macquarie University’s regular pay cycle. Mr Baker will be entitled to additional payments as prescribed in the Macquarie University Academic Staff Enterprise Agreement 2023 or any successor instrument if he works more than 182 hours as a part-time employee during a 12-month period.” Application to deal with a dispute about changing from casual employment Baker v Macquarie University [2026] FWC 3054 deliver