FWC encourages employers to look beyond employment contracts when determining casual status

A recent Fair Work Commission (Commission) decision is a timely reminder for all employers that calling an employee “casual” in their contract of employment does not necessarily make them one.

In Fedele v Technical and Further Education Commission [2026] FWC 3338, the Commission found that an employee was not a casual despite his contract stating there was no guarantee of hours or days of work. The decision demonstrates the importance of considering the practical reality of how a casual employee’s work is actually arranged.

Key facts

The employee, Mr Flavio Fedele, commenced casual teaching work with the Technical and Further Education Commission (TAFE) on 1 April 2022.

His hours varied over the following years:

• 2023: 293.7 hours, averaging 5.65 hours per week;
• 2024: 303.2 hours, averaging 5.83 hours per week; and
• 2025: 631.4 hours, averaging 12.14 hours per week.

In the second semester of 2025, Mr Fedele was teaching at TAFE’s Granville campus. He taught classes at regular times each week, including Mondays from 8.00 am to 3.30 pm and 5.30 pm to 9.00 pm, and Wednesdays from 5.30 pm to 9.00 pm.

On 14 December 2025, Mr Fedele gave TAFE written notification under the Fair Work Act 2009 (Cth) (Fair Work Act) that he believed he no longer met the requirements for casual employment. TAFE did not accept the notification, and the dispute was referred to the Commission for arbitration.

Key findings

The legal framework

The Commission was required to consider whether Mr Fedele’s employment relationship had the characteristics of casual employment under s15A of the FW Act.

A central consideration was whether there was an absence of a firm advance commitment to continuing and indefinite work, having regard to the matters identified in the Fair Work Act.

Such matters included:

• whether the employer could elect whether to offer work and the employee could accept or reject it;
• whether continuing work of the kind usually performed by the employee was likely to be available;
• whether full-time or part-time employees performed the same type of work; and
• whether there was a regular pattern of work.

The Commission also noted the significance of s15A(3)(c) of the Fair Work Act, which provides that a pattern of work can be regular even where it is not completely uniform and includes fluctuations or variations over time.

This was particularly relevant because Mr Fedele’s teaching work occurred across semesters, meaning there were periods when he did not perform work. The Commission considered that s15A(3)(c) clarified that “Mr Fedele’s work can be considered regular even if there were breaks when no work was performed between semesters.”

The Commission was also required to disregard conduct occurring after Mr Fedele’s notification on 14 December 2025. This meant that evidence concerning the substantial reduction in his hours during 2026 could not be considered when determining his employment status.

The parties’ respective positions

Mr Fedele did not have a contractual guarantee of ongoing work. In fact, his casual employment contract expressly stated, “there is no guarantee regarding the days or hours that you may be employed”.

Mr Fedele nevertheless argued that a firm advance commitment to continuing and indefinite work could be established from the parties’ conduct and their mutual understanding or expectation about the work he would perform.

The Commission therefore considered not only what the contract said, but how the employment relationship operated in practice.

The Commission’s findings

1. The scheduled work was not genuinely optional

The Commission placed significant weight on the way Mr Fedele’s classes were scheduled. The evidence indicated that he was responsible for particular classes at regular times each week and that those classes were effectively locked in for the semester. The Commission observed that changing those arrangements “would have undoubtedly caused disruption for the students.”

It found that TAFE had a practical inability not to offer Mr Fedele the scheduled work, while Mr Fedele had a practical inability to reject it. Both parties expected the work to be performed each week by Mr Fedele.

The Commission found this weighed in favour of concluding that Mr Fedele was not a casual employee.

2. There was an ongoing need for the work

The Commission also considered whether work of the kind performed by Mr Fedele was likely to continue. There was no evidence that TAFE intended to stop teaching painting and decorating at the relevant campuses. Instead, the evidence pointed towards an ongoing requirement for that work.

The Commission found the ongoing availability of painting and decorating teaching work at the Granville and Wollongong campuses weighed in favour of Mr Fedele not being a casual employee.

3. Permanent employees performed the same work

The Commission also noted that full-time and part-time employees performed the same type of teaching work as Mr Fedele. TAFE also employed full-time and part-time teachers to perform the same type of work. The Commission noted that the same type of teaching work that Mr Fedele had been performing since 2022 was being performed by full-time or part-time employees and considered this relevant to the nature of his engagement.

4. The pattern of work was regular

The Commission found that there was clearly a regular pattern of work during the second semester 2025.

Although the evidence for earlier periods was less clear, the Commission considered it likely that Mr Fedele had also been assigned classes at regular times during those periods. The Commission considered that the preparation associated with teaching classes would also likely have formed part of a regular pattern linked to the class times.

Importantly, the Commission did not consider the breaks between semesters to be inconsistent with a regular pattern of work.

5. The overall reality of the relationship was not casual

Having considered the various factors, the Commission concluded that the employment relationship was not characterised by an absence of a firm advance commitment to continuing and indefinite work. The Commission noted that Mr Fedele had been engaged to perform teaching work across 6 consecutive semesters.

It also noted that he had not been told that he would receive less or no teaching work in 2026 when he made his notification.

The Commission’s key conclusion was that the “real substance, practical reality, and true nature of Mr Fedele’s employment relationship with TAFE was not that of a casual employee engaged irregularly to perform work on an as needs basis”.

Instead, they found that Mr Fedele had been an important and ongoing part of the teaching teams of both Wollongong and Granville campus since at least 2023.

The Commission therefore found that Mr Fedele did not meet the definition of a casual employee when he made his notification on 14 December 2025. Having found that Mr Fedele was not a casual employee, the Commission could not order that he continue to be treated as a casual.

Key takeaways

The decision demonstrates the importance of considering the practical reality of how a casual employee’s work is actually arranged, and some of the key takeaways from this decision are listed below:

• The contract is only one part of the picture – a casual label or lack of guaranteed hours are relevant, but the practical reality of the relationship is key.
• Regular work does not need to be completely uniform – employers should not assume that variations in hours, or periods without work (e.g. semester breaks), automatically mean an employee’s work is irregular.
• Consider whether work is genuinely capable of being accepted or rejected – where a casual employee is repeatedly allocated particular shifts and both parties expect those arrangements to continue, this may weigh against casual status.
• Regular patterns should be reviewed over time – employers should periodically review long-term casual arrangements, particularly where an employee has worked regular hours, performs an ongoing role and has become integrated into the workforce.

How can NRA Legal assist?

Our team can assist employers with advice on casual employment status and workplace obligations, including reviewing existing arrangements and employment contracts. We can also provide representation and support in Fair Work Commission proceedings, including disputes concerning employment status.

If you would like assistance, please contact NRA Legal on 1800 572 679 for a confidential conversation.

Flavio Fedele v Technical and Further Education Commission [2026] FWC 3338