A recent FWC case has given employers a first look at how the new employee choice pathway operates in practice, after a casual employee successfully sought conversion with the help of AI.

A recent ruling marks the first successful test of Australia’s employee choice pathway for casual workers, and sends a clear message that a casual contract may not tell the whole story.

The Fair Work Commission (FWC) found that a university computer science teacher who had been engaged as a casual since 2023 no longer met the statutory definition of a casual worker, and ordered the university to approve his request to convert to a permanent part-time role.

“The decision demonstrates that the provisions that were introduced by the government in 2024 actually do have teeth,” says Adam Battagello, Partner at Lander & Rogers.

This case has also attracted attention for the teacher’s successful use of AI to prepare his application.

Below, Battagello unpacks what the decision means for employers, and offers guidance for HR teams to assess casual arrangements and manage conversion requests.

When a casual arrangement stops looking casual

The employer in this case had two main arguments against the employee’s conversion request.

First, his employment contract stated he was a casual with no guarantee of ongoing work. Second, its enterprise agreement did not allow for part-time employees to be hired solely for teaching duties.

However, the Commission found that an enterprise agreement cannot prevent an employee from exercising their right to seek permanent employment per the National Employment Standards.

“It’s something we need to watch out for – that we can’t be relying on the terms of an enterprise agreement which places potential restrictions on conversion from a casual to a part-time or full-time role,” says Battagello.

What this case ultimately turned on was whether the employee had an “advance commitment to continuing and indefinite work”, says Battagello, which would put him outside the definition of a casual.

“There are two pieces to the puzzle,” he says. “The first is what your employment contract says, but the second is whether the practical manner in which you engage that individual gives rise to an inference which is potentially inconsistent with the contract.”

While the Commission accepted his employment contract did not contain a firm advance commitment to ongoing work, it found that several aspects of the employment relationship suggested otherwise.

For example, the employee had been consistently engaged to perform teaching work since 2023, including teaching the same core subject across consecutive semesters. The work was expected to continue to be available, permanent employees performed the same type of work and there was a regular pattern to his teaching based on the university’s timetable.

The Commission described the arrangement as “more akin to recurring fixed-term periods of part-time employment, rather than genuine casual employment”, meaning the employee was entitled to be treated as a part-time worker.

“We can’t be relying on the terms of an enterprise agreement which places potential restrictions on conversion from a casual to a part-time or full-time role.” – Adam Battagello, Partner at Lander & Rogers.

The decision also provides an early example of how AI is beginning to feature in employee-initiated workplace proceedings. The employee represented himself in the dispute and has said he used multiple AI tools to help develop his case.

Crucially, he was transparent about his use of AI – which will be a legal requirement for applicants as of October this year.

“What sets [the applicant] apart is that this is an individual who appeared to have specific expertise in the use of AI and is able to tailor it in a manner that is focused and avoids some of the broader hallucination or AI risks that seem to be plaguing applications in the Commission,” says Battagello.

“He’s used AI in the manner it’s intended to be used effectively, which is as a tool and not just something that will draft the application for [someone who] will submit it without reading what it says.”

Responding to a casual conversion request

So, what should HR do when a casual employee submits a request to convert?

“From an HR perspective, there are quite limited grounds on which we might not accept notification for conversion,” says Battagello.

The first step might be going to the relevant business area and assessing whether the reality of their employment still meets the definition of casual work.

To help assess the employee’s current status, he suggests asking questions such as:

• Is the employee working regular and consistent days or hours?
• Have they been engaged over consecutive periods?
• Is there an expectation that they will return for the next period?
• Is there an ongoing pattern around particular duties, clients, subjects or projects?
• Do emails, rosters or other communications suggest an expectation of ongoing work, with no ability to refuse it?
• Are permanent employees doing essentially the same work?

If the answer to these questions is ‘yes’, it’s likely the employee is eligible to convert. However, the assessment should also look at the practical implications for the organisation.

“We need to look at what the fundamental impact is likely to be if we go through with converting this individual from a casual to a part-time or a full-time role, and whether that is something the business can reasonably accommodate on operational grounds.”

The organisation will need to consider what impact a change in employment status would have on workforce planning.

Cost is another potential factor, but businesses may struggle to use it as justification to refuse a request, says Battagello.

“[In the case discussed above], the Commission observed in passing that, if you’re a casual employee, by law you should already be receiving a pretty favourable loaded casual rate,” he says.

“So you’ll need to be very careful if you’re suggesting that converting them to a role that doesn’t have that loaded rate is going to be a financial impact on your operations.”

Building stronger oversight of casual employment

The best way to avoid being caught off guard by a conversion request is to monitor casual arrangements throughout the employment relationship, rather than waiting until an employee raises the issue, says Battagello.

“The HR team might deal with the employee at the time of executing the contract. But what happens in the six months following that?” he says.

“We need some kind of healthy communication that keeps us up to date with how that’s proceeding. Because, if we get to six months and we then find ourselves confronted with an application, and the basis of that application is that they’ve been working fundamentally differently from the contract they signed suggested, then it’s almost too late.”

This makes ongoing communication between HR and operational leaders critical.

“If someone is working with more regularity and there is a more firm advance commitment than has been contemplated, HR needs to be told about that, because our ability to act on it is only as good as the knowledge we have.”

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• Article: 6 common questions about casual conversion

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