But a recent Fair Work Commission decision should make every employer stop and ask an important question:

Are your casuals genuinely casual, or are they permanent employees in disguise?

In one of the first significant decisions under the new Employee Choice Pathway provisions, the Fair Work Commission ordered Macquarie University to convert a long-serving casual academic to permanent part-time employment. The decision provides valuable guidance on casual employment, but it also reinforces a much broader lesson about the National Employment Standards (NES).

The Case

Gregory Baker had worked as a casual academic in Macquarie University’s School of Computing since 2023. He taught the same core subject across multiple semesters and was allocated the same teaching work again for future semesters.

Using the Employee Choice Pathway, Mr Baker notified the University that he believed his position no longer met the definition of casual employment and requested conversion to permanent employment. The University refused, arguing that its Enterprise Agreement did not permit a teaching-only role to be engaged on a permanent part-time basis.

The Fair Work Commission rejected that argument.

Commissioner Crawford found that the employee’s work was regular, predictable and ongoing, formed part of the University’s core operations, and was substantially similar to work performed by permanent employees. In practical terms, the arrangement looked much more like ongoing part-time employment than genuine casual employment. The Commission subsequently ordered the University to convert Mr Baker to permanent part-time employment.

Why This Decision Matters

Many employers still assume that if someone signs a casual contract, receives casual loading and works under separate engagements, they will automatically remain a casual employee.

This decision reinforces that the Fair Work Commission looks beyond the label and examines the reality of the working relationship. If work is ongoing, predictable and forms part of an organisation’s regular operations, calling someone a casual may not be enough.

The decision is particularly relevant for employers operating around school terms, funding cycles, seasonal demand, recurring projects or program-based work. A break between periods of work does not automatically preserve casual status if the overall pattern points to continuing and ongoing employment.

For many organisations, especially in education, community services, disability services, childcare and not-for-profit sectors, that is a significant takeaway.

The Most Important Lesson: The NES Always Comes First

While most commentary has focused on casual conversion, I think the most significant aspect of this decision is what it says about the National Employment Standards.

Macquarie University argued that its Enterprise Agreement prevented the employee from being converted because the agreement did not permit a teaching-only part-time role. The Fair Work Commission found that argument could not succeed because an Enterprise Agreement cannot remove or limit rights provided under the National Employment Standards. To the extent that a provision conflicts with the NES, it has no effect.

That’s a principle every employer should understand.

The National Employment Standards sit at the foundation of Australia’s workplace relations system. Whether it’s an employment contract, workplace policy, Enterprise Agreement or simply a workplace practice that has existed for years, none of these arrangements can remove or restrict a minimum entitlement provided by the Fair Work Act.

This is why compliance reviews should never focus solely on employment contracts. Enterprise Agreements, workforce models, classification structures, rostering practices and internal policies should all be reviewed from time to time to ensure they remain aligned with current legislation.

How To Do It Better

This case is a timely reminder for employers to look critically at their casual workforce. If employees have been engaged for years, work regular patterns, return every term, season or funding cycle, or perform work that is essential to the organisation’s operations, it may be worth re-assessing whether those arrangements still reflect genuine casual employment.

It is also a good opportunity to review contracts, policies and Enterprise Agreements to ensure they continue to align with legislative requirements. Many organisations are surprised to discover that a workplace practice that has existed for years no longer reflects current law.

The best time to identify these issues is before an employee raises them.

The Bloom HR Takeaway

There are really three lessons in this case.

The first is that casual employment is determined by the reality of the relationship, not just the wording of the contract. If work becomes regular, predictable and ongoing, employers should carefully consider whether the arrangement still reflects genuine casual employment.

The second is that the National Employment Standards remain the ultimate workplace safety net. No Enterprise Agreement, contract, policy or workplace custom can take away a statutory entitlement provided under the Fair Work Act.

The third lesson may be the one that shapes workplace disputes for years to come.

Mr Baker reportedly used AI tools to assist with researching legislation, reviewing case law and preparing his arguments. AI did not win the case. The law won the case. However, AI helped make workplace information more accessible to someone who may previously have needed a lawyer, union representative or significant time and resources to develop the same argument.

The balance of workplace knowledge is changing rapidly.

Employees can now access legislation, case law, Fair Work resources and practical guidance in ways that simply weren’t possible a few years ago. The information gap between employers and employees is shrinking.

For employers, the lesson is simple. Don’t assume employees won’t know their rights. Assume they will.

The organisations that will thrive in this environment won’t be the ones relying on technicalities, historical practices or gaps in knowledge. They’ll be the organisations whose employment arrangements are compliant, transparent and capable of standing up to scrutiny.

Because in a world where everyone has access to information, good employment practices matter more than ever.

Need help reviewing your casual workforce?

Bloom HR supports organisations across Australia with workforce reviews, employment compliance, Enterprise Agreement interpretation, workplace investigations and practical HR advice.

📞 02 8114 4449 📧 hello@bloomhr.com.au 🌐 www.bloomhr.com.au

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The post Fair Work Friday: Think Your Casuals Are Really Casual? The Fair Work Commission Says Think Again appeared first on Bloom HR.

When most employers hear “flexible work request”, they think about changes to hours, working from home arrangements, or adjusted start and finish times.

However, a recent decision involving logistics giant DHL considered whether an employee could use the flexible work provisions of the Fair Work Act to seek an exemption from a workplace mobile phone ban that had been implemented for safety reasons.

The employee ultimately lost the case, but the Commission’s reasoning may have wider implications for employers managing workplace policies.

The Case: A Flexible Work Request or a Challenge to a Workplace Policy?

Mr Thanh Long Duong worked in a DHL warehouse that prohibited employees from carrying personal electronic devices while performing operational duties.

The policy was implemented as a safety measure to reduce distractions and minimise the risk of workplace incidents.

Mr Duong sought an exemption from the ban due to his family circumstances. His children suffer from serious medical conditions, including severe asthma and anaphylaxis, and he wanted to be contactable should an emergency arise.

Rather than simply requesting an exception to the policy, Mr Duong relied on the flexible work provisions under section 65 of the Fair Work Act and argued that being permitted to carry his phone was a change to his “working arrangements”.

DHL argued the request did not relate to a working arrangement at all and that the flexible work provisions were intended to address matters such as working hours, work patterns and work location.

The Background: Why the Decision Matters

Before determining whether DHL was entitled to refuse the request, the Fair Work Commission first had to decide whether the request was capable of being considered under the flexible work provisions.

This was the critical issue.

Deputy President Bell found that the mobile phone prohibition was sufficiently connected to the performance of work to potentially constitute a “working arrangement”.

While the Commission ultimately accepted that DHL had reasonable business grounds to refuse the “flexible work request” due to workplace safety concerns, the decision confirmed that flexible work requests may extend beyond traditional arrangements such as hours and locations of work.

In practical terms, the Commission recognised that workplace policies may, in some circumstances, fall within the scope of the flexible work framework.

For employers, that is arguably the most significant aspect of the decision. Even though in this case the request was denied, the potential that employees may challenge workplace policies through a flexible work request is the issue. It means that flexible work requests are broader than employers previously understood.

How to Do It Better

1. Don’t Assume Flexible Work Requests Only Relate to Hours and Working from Home

Employers should carefully assess the substance of a request rather than dismissing it because it does not fit a traditional flexible work scenario. The Commission’s approach suggests that other workplace arrangements may also require consideration under the flexible work provisions.

2. Ensure Your Refusal Reasons Are Well Documented

DHL was successful because it could demonstrate legitimate workplace safety concerns and reasonable business grounds for refusing the request. Employers should ensure they can clearly articulate and evidence the operational, safety or financial reasons supporting any refusal.

3. Focus on the Process as Much as the Outcome

Even where an employer ultimately refuses a request, the consultation process matters. Taking the time to genuinely consider the employee’s circumstances and explore alternatives will place an employer in a much stronger position if the decision is later challenged.

The Bloom HR Takeaway

This decision highlights how difficult it is becoming for employers to navigate an ever-expanding range of workplace obligations.

Most employers would reasonably expect flexible work requests to deal with issues such as working hours, work patterns or location. Few would anticipate that a workplace safety policy could potentially become the subject of a flexible work dispute.

While the Commission ultimately upheld DHL’s decision, the broader interpretation of what may constitute a “working arrangement” creates further uncertainty for employers already trying to balance operational requirements, employee needs and workplace safety obligations.

The challenge is not that employers are unwilling to provide flexibility. The challenge is knowing where the boundaries are.

When concepts designed for one purpose begin extending into entirely different areas of workplace management, it becomes increasingly difficult for employers to understand their obligations with confidence. If HR professionals, lawyers and Commissioners are debating where those boundaries sit, it is easy to see why many employers are struggling to keep up.

Has your organisation reviewed its flexible work request process to ensure it is equipped to respond to increasingly complex requests? At Bloom HR, we help employers assess flexible work requests, manage risk, and balance compliance obligations with practical operational needs.

Schedule a 30 minute free consultation by calling us on (02) 8114 4449 or booking a meeting with a senior consultant here.

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