Landmark decision sees Commission’s first ruling under new employee choice provisions

A landmark ruling by the Fair Work Commission (Commission), in Baker v Macquarie University [2026] FWC 3054, provides the first guidance on the new ‘employee choice’ rules for casual employees, introduced in August 2024.

The decision highlights key considerations for employers when assessing whether an employee remains genuinely casual when requesting conversion to permanent employment.

Key Facts

The employee, Mr Gregory Baker, had performed casual teaching work in the School of Computing at Macquarie University since 2023.

On 5 November 2025, Mr Baker provided notification, pursuant to s 66AAB of the Fair Work Act 2009 (Cth) (Act), to Macquarie University that he believed he was no longer a ‘casual employee’ under s 15A(1)-(4) of the Act. This provision allows a casual employee to change to permanent employment (either part-time or full-time) by notifying their employer.

Macquarie University did not accept Mr Baker’s notification. Following a meeting and further written communications, the parties were unable to resolve the dispute. Mr Baker subsequently lodged a dispute with the Commission on 23 December 2025. Conciliation was unsuccessful and the matter was referred to arbitration.

The case concerned casual teaching work undertaken by Mr Baker across a number of subjects. In particular, Mr Baker relied on his teaching of COMP2200, a core subject in the School of Computing. He had taught COMP2200 in both semesters of 2025 and had been allocated to teach it in both semesters of 2026.

Mr Baker estimated that he had performed slightly more than 900 hours of work during 2025, equivalent to approximately 17 hours per week, in addition to other work undertaken for the University.

The application made under s 66AAB of the Act

Mr Baker’s application arose from his notification under s 66AAB of the Act that he believed he no longer met the definition of a casual employee.

Macquarie University did not accept the notification. The dispute was therefore referred to the Commission under the dispute resolution provisions in ss 66M and 66MA of the Act.

A significant issue for the Commission was whether Mr Baker actually remained a casual employee when he made his notification on 5 November 2025.

The Commission observed that, under the new provisions, an employee who is initially legitimately engaged as a casual remains a casual employee until their status changes through one of the mechanisms specified in s 15A(5), including through the ‘employee choice’ provisions, a Commission order, a fair work instrument or acceptance of an alternative offer of employment.

Importantly, the Commission also considered the point in time at which Mr Baker’s employment status was to be assessed. Section 66MA(5)(b) requires the Commission to disregard conduct of the employer and employee occurring after the employee’s notification. Commissioner Crawford explained:

“The dispute must be resolved based on an assessment of the facts that existed when the employee made the notification to the employer.”

This meant that evidence concerning changes to Mr Baker’s teaching arrangements after his notification could not be relied upon in determining the dispute.

Legal Framework

The ‘employee choice’ provisions in the National Employment Standards (NES) allow an eligible casual employee to notify their employer that they believe they no longer meet the requirements of casual employment under s 15A.

A casual employee will be eligible if they:

• Have completed the relevant minimum period of employment (6 months, or 12 months for small business employer); and
• Have not disputed their employment status in the previous 6 months.

Under s 66AAC, an employer must respond to the notification within 21 days and must consult with the employee before providing its response.

An employer may refuse to accept the notification on limited grounds, including where:

• the employee still meets the requirements of casual employment under s15A of the Act;
• there are fair and reasonable operational grounds for refusing the notification; or
• accepting the notification would be contrary to applicable public sector recruitment or selection laws.

 

The definition of a casual employee is contained in s15A of the Act. Broadly, an employee is a casual only where the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work and the employee is entitled to a casual loading or specific casual rate under an applicable instrument or contract.

In assessing whether there is a firm advance commitment, the Act requires consideration of the real substance, practical reality and true nature of the employment relationship. No single consideration is determinative, but relevant considerations include whether:

• the employer or employee has an inability to elect whether work is offered or accepted;
• the work is reasonably likely to continue being available;
• full-time or part-time employees perform the same type of work; and
• there is a regular pattern of work, even if there is some fluctuation or variation over time.

 

Key Findings

Commissioner Crawford considered each of the statutory factors of casual employment enumerated in s15A of the Act and made the following key findings:

1. Mr Baker was not genuinely a casual employee

The Commission considered whether Mr Baker continued to meet the definition of a casual employee under s15A of the Act.

Although Mr Baker’s casual contract stated there was no guarantee of ongoing work, the Commission found that this was not determinative. A firm advance commitment could arise from a mutual understanding or expectation inferred from the parties’ conduct.

The Commission found that the relevant factors in s 15A weighed, to varying degrees, in favour of Mr Baker being a non-casual employee. In particular, his teaching work was reasonably likely to continue, full-time and part-time employees performed the same type of work, and Mr Baker had a regular pattern of work.

Commissioner Crawford observed at [32]:

“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.”

2. The arrangement was more akin to recurring part-time employment

The Commission found that Mr Baker’s employment relationship was not characterised by an absence of a firm advance commitment to continuing and indefinite work.

The Commission placed particular weight on the fact that Mr Baker had been consistently engaged since 2023 and that the University required his teaching work on an ongoing basis. Although the work was largely confined to semester periods, the Commission considered the arrangement:

“…potentially more akin to recurring fixed-term periods of part-time employment, rather than genuine casual employment.”

The Commission therefore found that Mr Baker did not meet the definition of a casual employee when he made his notification.

3. The enterprise agreement could not prevent Mr Baker accessing his NES entitlement

Macquarie University argued that its enterprise agreement did not permit Mr Baker to be engaged part-time to perform teaching-only duties.

The Commission found that, even if the agreement prevented Mr Baker from accessing part-time employment through the casual employee choice provisions, it would be inconsistent with the NES and thus ineffective to the extent of the inconsistency.

The Commission therefore concluded that the enterprise agreement did not prevent it from making an order treating Mr Baker as a part-time employee.

4. A 0.1 FTE part-time arrangement was fair and reasonable

The Commission then considered whether it would be fair and reasonable to make a part-time employment order. The parties largely agreed that 0.1 FTE was appropriate, equating to an average of 3.5 hours per week over a 12-month period.

This would guarantee Mr Baker 182 hours of work over 12 months, with additional payments for hours worked beyond that amount.

The Commission also considered that the arrangement would not create an overly problematic burden for the University and noted that there could be cost savings because casual teaching rates were considerably higher than the applicable part-time rates.

Ultimately, the Commission ordered Macquarie University to treat Mr Baker as a 0.1 FTE part-time employee, with the hours averaged over a 12-month period. The order was to take effect 28 days after the date of the decision.

Key Takeaways

This decision provides several important considerations for employers engaging casual employees.

• Casual status must be assessed against the statutory definition. Employers should not assume that an employee remains casual simply because they were originally engaged under a casual contract. The Commission will consider the real substance, practical reality and true nature of the employment relationship.
• Regular work can indicate that an employee is no longer genuinely casual. A pattern of work does not need to be identical from week to week or semester to semester. As Baker demonstrates, work can still constitute a regular pattern even where there is some variation.
• The circumstances at the time of the notification are critical. Evidence of conduct occurring after an employee gives an ‘employee choice’ notification will be disregarded by the Commission when determining the dispute.
• Enterprise agreements cannot undermine NES entitlements. Where an enterprise agreement purports to prevent an employee from accessing a right provided by the NES, the inconsistent term may have no effect to the extent of that inconsistency.
• Casual arrangements involving recurring work should be reviewed carefully. Employers should consider whether long-term casual employees who perform recurring, scheduled work are genuinely casual, particularly where the work is an ongoing requirement of the business and follows a predictable pattern.

Learn More

If you would like advice on responding to employee choice provision claims made by casual employees or any assistance with any other matters of a similar nature to this, please contact NRA Legal on 1800 572 679 for a confidential conversation.