DECISION

Fair Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009

Casual terms award review 2021
(AM2021/54)

Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2 – Group 4.

Introduction

[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.

[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review (Casual Terms Review or Review) and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.

[3] The Casual Terms Review is being conducted in 2 stages. As part of Stage 1, a five-member Full Bench issued a decision 1 (July 2021 decision) that considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of six modern awards.

[4] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. The groups are set out at Attachment A to our statement 2 of 3 August 2021.

[5] In a statement issued on 26 August 2021 3 (26 August statement), we outlined provisional views in relation to awards in Group 4. One of these provisional views was that each of the Group 4 awards which does not contain a casual conversion clause should be varied pursuant to s.157(1) of the Act to include a reference to the NES casual conversion provisions, provided that the NES provisions are applicable to the employers and employees covered by the award4 (casual conversion provisional view). We also expressed a range of other provisional views specifically applicable to each of the Group 4 awards.

[6] The 26 August statement provided interested parties with an opportunity to provide submissions in responses to the provisional views. Additionally, for provisions in some awards, we declined to express a provisional view and instead called for further submissions regarding particular award clauses.

[7] Following the receipt of submissions pursuant to the 26 August statement, the following award clauses were either contested or the subject of submissions:

Airservices Australia Enterprise Award 2015

•  Clause 6.4

Australian Capital Territory Public Sector Enterprise Award 2016

•  Clause 6.5

Australian Federal Police Enterprise Award 2016

•  Clause 5.8

Australian Government Industry Award 2016

•  Clause L.3.1(c) of Schedule L

Australian Public Service Enterprise Award 2015

•  Clause 6.2

•  Clause 6.5

Northern Territory Public Sector Enterprise Award 2016

•  Clause 6.1

Parliamentary Departments Staff Enterprise Award 2016

•  Clause 6.2

•  Clause 6.5

State Government Agencies Award 2020

•  Clause 11.6

Victorian Public Service Award 2016

•  Clause 6.5

Victorian State Government Agencies Award 2015

•  Clause 8.6

Victorian Government Schools Award 2016

•  Clause 3

•  Clause 10.4

Victorian Government Schools – Early Childhood – Award 2016

•  Clause 3

•  Clause 10.5

[8] This decision deals with the abovementioned award matters.

Australian Public Service Enterprise Award 2015

[9] In addition to the casual conversion provisional view, we identified an issue in the 26 August statement concerning the relationship between the category of ‘irregular or intermittent’ employment for which provision is made in the Australian Public Service Enterprise Award 2015 (APSE Award) and casual employment under the Act. We invited submissions on the following observations:

“[47] Clause 3 of the Australian Public Service Award provides that it covers the Commonwealth of Australia in respect of the Australian Public Service (APS) and employees employed in APS employment. The category of employees engaged on an irregular or intermittent basis in clauses 6.2 and 6.5 reflects s.22(2)(c) of the PS Act, to which reference has earlier been made. As also observed above, s.8(1) of the PS Act relevantly provides that it has effect subject to the Act, and s.6(1) provides that all persons engaged as employees in a Department of the Parliament must be engaged under that Act or under the authority of another Act.

[48] We consider that there are real questions as to the relationship between s.22 of the PS Act and s.15A of the Act and as to how the provisions concerning employment on an irregular or intermittent basis in the Australian Public Service Award are to be considered in this context. We do not propose to express any provisional view about this. We will invite further submissions from the Commonwealth and other interested parties about this issue.”

[10] In response, the Australian Public Service Commission (APSC) submitted 5 that clauses 6.2 and 6.5 of the APSE Award, which distinguish types of employment, are to be differentiated from s.22(2) of the Public Service Act 1999 (Cth) (PS Act), which establishes the basis for engagement in the Australian Public Service (APS). It submitted that for the purposes of the award, ‘irregular or intermittent’ employment is intended to be casual employment as reflected by the provision for payment of the 25% casual loading. The APSC submitted that s.22 of the PS Act and s.15A of the Act are capable of operating together and that, pursuant to s.40 of the Act, any variation to the award (a fair work instrument) could not vary the effect of s.22 of the PS Act (a public sector employment law). It proposed that the award be varied to equate irregular or intermittent employment with casual employment per s.15A of the Act by describing such an employee as ‘irregular or intermittent (casual employee)’ within the award and to define casual employee within Schedule E with reference to s.15A of the Act. It considered that the term ‘irregular and intermittent’ should remain in the award to ensure consistency with the Act and clarify the appropriate engagement status of casual employees within the APS.

[11] The CPSU submitted 6 that the definition in cl 6.5(a) of the award is not consistent with the definition of casual employee in s.15A of the Act because it places additional restrictions on the circumstances in which a casual employee may be engaged. It submitted that the award should be varied to replace the definition in clause 6.5(a) with a reference to s.15A of the Act and references to ‘irregular or intermittent’ with ‘casual’ to remove this inconsistency. It further submitted that an additional subclause (e) be added to clause 6.5 of the award specifying that ‘a casual employee may only be engaged for duties that are irregular or intermittent’ to ensure consistency with the PS Act, as an employee who is not engaged for irregular and intermittent duties must be engaged as ongoing employee or for a specified term or task. It said this approach would be consistent with that taken by the Full Bench in the July 2021 decision in respect of the Educational Services (Teachers) Award 2020 (Teachers Award).

[12] The UWU submitted 7 that the s.15A definition of casual should be inserted into the award; however, a separate clause should be retained limiting the engagement of casuals to performing duties that are ‘irregular or intermittent’. It submitted that this approach is analogous to that taken by respective Full Benches in respect of clause 11.2 of the Cleaning Services Award 2020 (Cleaning Services Award) in our statement of 11 August 20218 (11 August statement) and clause 12.1 of the Teachers Award in in the July 2021 decision. It said that this approach would ensure the basis of employment provision in the PS Act would still apply, ensure consistency with the NES and safeguard one of the APS Employment Principles which ‘recognises that the usual basis for engagement is as an ongoing APS employee’.

Consideration

[13] There is no dispute, and we accept, that clause 6 of the APSE Award is a relevant term for the purpose of this review. We consider that clause 6 gives rise to uncertainty and interaction difficulty with the Act for two reasons. First, clause 6.1, which provides that ‘The Public Service Act 1999 specifies the basis of engagement for an employee covered by this award’, may on one view be understood as incorporating by reference the provisions of s.22(2) of the PS Act concerning the categories of employment in the APS or, at least, seeking to relate the categories of employment provided for in clause 6 to s.22(2) of the PS Act, notwithstanding the APSC’s submissions that clause 6 is to be differentiated to s.22(2). This by itself renders unclear the relationship between the ‘irregular or intermittent’ employment type provided for in clause 6 and the s.15A definition. Second, the terminology of ‘irregular or intermittent’ employment does not suggest that the employment type necessarily aligns with casual employment as defined in s.15A of the Act, taking into account that the High Court decision in Workpac v Rossato makes it clear that employment may involve regular and non-intermittent hours and may nonetheless be casual in nature because it does not involve a contractual obligation on the part of the employer to ongoing employment. 9

[14] We consider that, in order to make the APSE Award operate effectively with the Act, the award should be varied to:

(1) add a definition of ‘casual employee’ (in Schedule E – Definitions) which adopts the meaning in s.15A of the Act;

(2) delete existing clause 6.1 (to remove any suggestion of incorporation by reference), but add a note to existing clause 6.2 to the effect that the PS Act also contains provisions which specify the basis of engagement of employees covered by the award; and

(3) vary clause 6.5(a) to makes it clear that an ‘irregular or intermittent employee’ is a casual employee (as defined).

[15] No party contended that the NES casual conversion provisions did not apply to employees covered by the APSE Award. Accordingly, we confirm the casual conversion provisional view in relation to this award.

[16] Consistent with the above conclusion, clause 6, Types of employment of the APSE Award will be varied to provide:

“6.1 Employees can be employed on either a full-time, part-time or irregular and intermittent basis.

NOTE: The Public Service Act 1999 contains provisions which specify the basis of engagement for an employee covered by this award.

6.2 [reproduce current clause 6.3]

6.3 [reproduce current clause 6.4]

6.4 Irregular or intermittent employment

(a) An irregular or intermittent employee is an employee who:

(i) is a casual employee; and

(ii) works on an irregular or intermittent basis.

(b) [reproduce current paragraph (b)]

(c) [reproduce current paragraph (c)]

(d) [reproduce current paragraph (d)]

6.5 Offers and requests for casual conversion

Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.

NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution.”

[17] It may be noted that clause 6.4(a) above would maintain the requirement that an ‘irregular or intermittent employee’ only perform irregular and intermittent work, and so would accommodate the point raised by the CPSU and the UWU.

Parliamentary Departments Staff Enterprise Award 2016

[18] In the 26 August statement, we expressed the following observations in respect of the Parliamentary Departments Staff Enterprise Award 2016 (Parliamentary Staff Award):

“[81] Clause 6.2 of the Parliamentary Departments Staff Enterprise Award 2016 (Parliamentary Departments Staff Award) provides for three categories of employment: full-time, part-time, or ‘irregular and intermittent basis’. Under clause 6.5, irregular or intermittent employees:

•  work ‘on an irregular or intermittent basis’ (clause 6.5(a));

•  are paid ‘the hourly rate for their classification’ (clause 6.5(b));

•  are paid ‘a casual loading of 25% of that rate in lieu of paid leave entitlements’ (clause 6.5(c)); and

•  are excluded from entitlements to annual leave (clause 15), public holidays (clause 20), additional holiday (clause 21), termination of employment (clause 22) and redundancy (clause 23).

[82] Clause 3 of the Parliamentary Departments Staff Award provides that it covers the Commonwealth of Australia in respect of the Parliamentary Service and its employees. The category of employees engaged on an irregular or intermittent basis in clause 6.2 reflects s.22(2)(c) of the Parliamentary Service Act 1999 (Cth). Section 22(1) of that Act empowers the Secretary of a Department of the Parliament to engage employees on behalf of the Commonwealth, and s.22(2) provides that such employees must be engaged as (a) an ongoing Parliamentary Service employee, (b) for a specified term or for the duration of a specified task, or (c) ‘for duties that are irregular or intermittent’. Section 8(1) of the Parliamentary Service Act relevantly provides that it has effect subject to the Act, and s.6(1) provides that all persons engaged as employees in a Department of the Parliament must be engaged under the Parliamentary Service Act or under the authority of another Act.

[83] We consider that there are real questions as to the relationship between s.22 of the Parliamentary Service Act and s.15A of the Act and as to how the provisions concerning employment on an irregular or intermittent basis in the Parliamentary Departments Staff Award are to be considered in this context. We do not propose to express any provisional view about this. We will invite further submissions from the Commonwealth and other interested parties about this issue.”

[19] The Parliamentary Service 10 made submissions11 that are substantially similar to those of the APSC in relation to the Australian Public Service Award (save for the references to the PS Act being references to the Parliamentary Service Act 1999 (Cth) (Parliamentary Service Act)) which are summarised above. It submitted that irregular or intermittent employment should be equated with casual employment per s.15A of the Act and described as ‘irregular or intermittent (casual) employee’ within the award and to define casual employee within Schedule E of the award with reference to s.15A.

[20] The CPSU submitted 12 that the terms of the Parliamentary Service Act are relevantly the same as the terms of the PS Act and therefore, its submissions above in relation to the Australian Public Service Award apply equally in respect of this award. It submitted that the Parliamentary Staff Award be amended by replacing the definition in clause 6.5(a) with a reference to s.15A of the Act and replacing references to ‘irregular or intermittent employee’ to ‘casual’. It further submitted that a new clause should be inserted to stipulate that a casual employee ‘may only be engaged for duties that are irregular or intermittent.’

Consideration

[21] The Parliamentary Staff Award gives rise to the same interaction uncertainty and difficulty with the Act as with the APSE Award and, in our view, this is to be appropriately resolved in the same way. We also note that no party contended that the NES casual conversion provisions do not apply to persons covered by this award and we therefore confirm the casual conversion provisional view. Accordingly, a definition of ‘casual employee’ which adopts the meaning in s.15A of the Act will be added to Schedule E, Definitions of the award, and clause 6, Types of employment will be varied to provide as follows:

“6.1 Employees can be employed on either a full-time, part-time or irregular and intermittent basis.

NOTE: The Parliamentary Service Act 1999 contains provisions which specify the basis of engagement for an employee covered by this award.

6.2 [reproduce current clause 6.3]

6.3 [reproduce current clause 6.4]

6.4 Irregular or intermittent employment

(a) An irregular or intermittent employee is an employee who:

(i) is a casual employee; and

(ii) works on an irregular or intermittent basis.

(b) [reproduce current paragraph (b)]

(c) [reproduce current paragraph (c)]

(d) [reproduce current paragraph (d)]

6.5 Offers and requests for casual conversion

Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.

NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 25—Dispute resolution.

[22] The above approach would not require any disturbance to the other references to irregular or intermittent employment elsewhere in the Parliamentary Staff Award. We confirm the other, unopposed provisional views expressed in relation to this award in the 26 August statement.

Australian Government Industry Award 2016

[23] In the 26 August statement (at [36]), we expressed the provisional view that the definition of ‘casual employee’ in clause 9.5 of the Australian Government Industry Award 2016 (AGI Award) should be deleted and, instead, a definition of casual employee that refers to s.15A of the Act should be added to clause 2.1 of the award. There was no opposition to this provisional view. In addition, we stated the provisional view that clause L.3.1(c) of Schedule L, which contains a definition of casual employment specifically applicable to the Civil Aviation Safety Authority (CASA), should be deleted and replaced with the following provision:

“Casual employment

Casual employment is defined in clause 2.1 of the award.”

[24] We recognised in the 26 August statement that clause L.3.1(c) contained non-definitional as well as definitional elements, but considered that these were ‘difficult to disentangle’.

[25] The CPSU opposed the provisional view, 13 and submitted that the reference to employment on an ‘irregular and intermittent’ basis currently found in clause L.3.1(c) is not merely definitional but also serves to restrict the circumstances in which a casual employee may be engaged in a way that is common throughout Commonwealth employment. The CPSU submitted that we should take the same approach as taken by the Full Bench in the July 2021 decision in respect of clause 12.1 of the Teachers Award, that is, to provide a limitation in the definition of casual employee recast as a separate clause to operate alongside the new s.15A definition.

Consideration

[26] Clause L.3.1(c) is clearly inconsistent with s.15A of the Act. The question is, what variation should be made to remove this inconsistency in accordance with clause 48(3) of the Act? In our decision of 13 September 2021 concerning contested issues in the Group 1, 2 and 3 awards 14 at [130], in relation to the Textile, Clothing, Footwear and Associated Industries Award 2020, we concluded that:

•  the task in this review does not extend to removing existing award provisions where they can be preserved in a way which does not give rise to inconsistency or interaction difficulty with the Act;

•  the Act, as amended, does not prohibit or inhibit modern awards from placing restrictions on the utilisation of casual employees; and

•  it is permissible to include in an award a provision confining casual employment under an award to the performance of irregular or intermittent work (and thus prohibiting regular casual employment of the type considered in Rossato).

[27] Consistent with the above approach, we have determined to depart from our provisional view and, instead, vary clause L.3.1(c) to provide as follows:

“(c) Casual employment

CASA may only engage a casual employee to perform work on an irregular and intermittent basis.”

[28] We confirm the other provisional views expressed in the 26 August statement concerning the AGI Award, including the casual conversion provisional view.

Airservices Australia Enterprise Award 2016
Australian Capital Territory Public Sector Enterprise Award 2016
Australian Federal Police Enterprise Award 2016

[29] In the 26 August statement we expressed the provisional view that clause 6.4(a) of the Airservices Australia Enterprise Award 2016 (Airservices Award), which provides that ‘A casual employee is a person employed on an irregular, intermittent and hourly basis without any ongoing commitment from either party as to an ongoing relationship’, is not consistent with the definition in s.15A of the Act and should be removed. We observed that the provision is clearly intended to be entirely definitional in nature and in that respect is substantially different to clause 11.2 of the Cleaning Services Award, which we considered in the 11 August statement. We concluded, on a provisional basis, that a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule G, Definitions of the award.

[30] In relation to the Australian Capital Territory Public Sector Enterprise Award 2016 (ACT Public Sector Award), we similarly stated the provisional view that clause 6.5(a) of the award, which provides that ‘A casual employee is an employee who is engaged to perform work for a short period on an irregular or non-systematic basis’, is inconsistent with the definition in s.15A of the Act. We provisionally concluded that clause 6.5(a) should be amended to remove its definitional aspect (with a new definition referring to s.15A to be added to Schedule E, Definitions) and that the clause includes a temporal restriction that should be preserved. This would result in clause 6.5(a) being amended to provide: ‘A casual employee may only be engaged to perform work for a short period.’

[31] In relation to clause 5.8 of the Australian Federal Police Enterprise Award 2016 (AFP Award), which provides that ‘Where an employee is engaged on a casual basis to do work that is intermittent or irregular in nature, the employee will receive a 25% loading of their base salary in recognition that they do not have access to certain entitlements’, we expressed the following provisional view at [29] in the 26 August statement:

“(1) Clause 5.8 contains both a definition element and a requirement for the payment of the 25% casual loading.

(2) Insofar as it constitutes a definition of casual employment, clause 5.8 is not consistent with the definition in s.15A of the Act.

(3) The reference to ‘work that is intermittent or irregular in nature’ appears not to be a restriction on the use of casual employees but a condition on the payment of the 25% loading. This condition, which suggests that some casual employees may not be entitled to the loading, should be removed.

(4) Clause 5.8 should be modified so that definitional element is removed, as follows:

“5.8 Casual employment

(a) Where an employee A casual employee is engaged on a casual basis to do work that is intermittent or irregular in nature, the employee will receive a 25% loading on their base salary in recognition that they do not have access to certain entitlements.”

(5) A new definition of ‘casual employee’ that refers to s.15A of the Act should be added to Schedule F, Definitions of the award.”

[32] The CPSU opposed the above provisional view insofar as is involved the removal of what it contends are existing restrictions on the use of casual employees. In respect of the Airservices Award, 15 it submitted that the reference to ‘irregular and intermittent’ in clause 6.4(a) is not merely definitional but also serves to restrict the circumstances in which a casual employee may be engaged, which it contended was common throughout Commonwealth employment. In relation to the ACT Public Sector Award, the CPSU submitted that the provisional view provided no explanation as to why temporal restriction in relation to performing work for a short period would be retained but not the restriction in relation to being engaged to perform work on an irregular or non-systematic basis. It submitted, for the same reasons outlined above in respect of the Airservices Award, that the words ‘on an irregular or non-systematic basis’ should be retained in the amended clause 6.5(a). Should the limitation not be retained, it submitted, the proposed approach would create a substantial change to circumstances in which casual employees may be engaged under the ACT Public Sector Award. As to the AFP Award, the CPSU submitted that the current clause 5.8 contains a limitation on the circumstances in which casual employees may be engaged, and that this should be retained by inserting a new provision stating ‘A casual employee may only be engaged to do work that is intermittent or irregular in nature.’ In respect of all three awards, as it did in relation to the AGI Award, the CPSU relied on the approach taken by the Full Bench in the July 2021 decision concerning clause 12.1 of the Teachers Award.

Consideration

[33] For the same reasons as stated with respect to the AGI Award, we have decided to depart from the provisional views identified above in respect of these three awards and to retain what the CPSU characterised in its submissions as current restrictions on the use of casual employees. In reaching this conclusion, we have taken into account that no party covered by the awards expressed support for the provisional views or opposed the CPSU’s submissions. Accordingly:

(1) Clause 6.4(a) of the Airservices Award will not be deleted, but rather amended to provide:

“(a) A casual employee may only be engaged on an irregular and intermittent basis.”

(2) Clause 6.5(a) of the ACT Public Sector Award will be amended to provide:

“(a) A casual employee may only be engaged to perform work for a short period on an irregular or non-systematic basis.”

(3) Clause 5.8(a) of the AFP Award shall be replaced by the following provisions (with paragraphs (b)-(e) of clause 5.8 being redesignated as (c)-(f)):

“(a) A casual employee may only be engaged to perform work that is intermittent or irregular in nature.

(b) A casual employee will receive a 25% loading on their base salary in recognition that they do not have access to certain entitlements.”

[34] We confirm the other, unopposed provisional views expressed in relation to these awards in the 26 August statement.

Northern Territory Public Sector Enterprise Award 2016

[35] In the 26 August statement, we invited submissions in relation to the following observations concerning the Northern Territory Public Sector Enterprise Award 2016 (NT Award):

“[72] The Northern Territory Public Sector Enterprise Award 2016 contains a definition of casual employment at clause 6.1 by reference to the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) as follows:

“6.1 The PSEM Act specifies the basis of engagement for an employee covered by this award (see s.29(3) of the PSEM Act which provides for employment on an ongoing, fixed period or casual basis).”

[73] The PSEM Act defines casual employment in section 29(3)(c) as follows:

‘(3) Employment under subsection (1) may be:

(a) ongoing – being employment until the employee resigns or the employment is terminated under this Act, other than casual employment; or

(b) fixed period – being employment for a period of time specified in the contract of employment, other than casual employment; or

(c) casual – being employment to work as and when required from time to time.’

[74] The definition of casual employment in s.29(3)(c) of the PSEM Act, which is incorporated by reference into clause 6.1 of the award, is inconsistent with the definition of casual employment in s.15A of the Act. That gives rise to a question as to the relationship between the Act and the PSEM Act. We do not propose to express any provisional view about this. We will invite further submissions from interested parties (including the Northern Territory Government and the Commonwealth).”

[36] The Commissioner for Public Employment - Northern Territory Government (NT Commissioner) submitted 16 that there is no substantive inconsistency between the definition of ‘casual employee’ in s.15A of the Act and s.29(3)(c) of the PSEM Act and did not object to the s.15A definition being included in clause 6 of the award. It was submitted that the textual inconsistency between the provisions does not meet the test for direct inconsistency between Commonwealth and State or Territory legislation because s.29(3)(c) of the PSEM Act does not alter, impair or detract from the operation of s.15A of the Act. The NT Commissioner submitted that the NES contain minimum standards of employment for employees covered by the award and that, in addition to s.29(3)(c) of the PSEM Act, s.34A provides that the NT Commissioner may determine the duties or classes of duties in an Agency or the Public Sector generally that may be performed on a casual basis, and the terms and conditions to apply to casual employees. It provided examples of casual employment determinations issued by the Commissioner that it submitted provide terms and conditions of casual employment that are consistent with s.15A of the Act. It further submitted that there is no indirect inconsistency between s.15A of the Act and s.29(3)(c) of the PSEM Act because the Act is not intended to be read as expressing an intention to completely, exhaustively or exclusively provide the law with respect to casual employment for public sector employees.

[37] The CPSU (PSU Group) supported the inclusion of the definition of casual in s.15A of the Act. 17 However, it additionally proposed that limitations on the use of casual employees contained in the PSEM Act should be incorporated into the award. To that end, the CPSU proposed that clause 6.5 be varied to include the following additional provisions to prevent the scope of casual employment being expanded under the award:

“(c) A casual employee may only be employed to work as and when required from time to time.

(d) A casual employee may only be employed to perform duties to which a determination under s.34A(1) of the PSEM Act applies.”

[38] The United Workers Union (UWU) submitted 18 that the concept of a casual employee being ‘required from time to time’ is not definitional but rather temporal in nature and, accordingly, could be retained together with the insertion of the s.15A definition of a casual employee. It submitted that this approach would ensure consistency with both the PSEM Act and the NES.

Consideration

[39] Clauses 6.1 and 6.2 of the NT Award provide:

“6.1 The PSEM Act specifies the basis of engagement for an employee covered by this award (see s.29(3) of the PSEM Act which provides for employment on an ongoing, fixed period or casual basis).

6.2 Employees can be employed on either a full-time, part-time or casual basis.”

[40] Casual employment is not otherwise defined in the NT Award.

[41] We consider that clauses 6.1 and 6.2 give rise to interaction difficulty with the Act. The clause refers to s.29(3) of the PSEM Act which, in paragraph (c), relevantly provides that employment under the PSEM Act may be ‘casual – being employment to work as and when required from time to time’. Insofar as clause 6.1 refers to the PSEM Act more generally as specifying the basis of engagement for an employee covered by the NT Award, it may be noted that s.34A(1) of the PSEM Act empowers the NT Commissioner to determine which duties or classes of duties in an agency may or may only be performed on a casual basis, with s.34A(2) prohibiting the employment of a casual employee to perform duties other than those the subject of a determination by the NT Commissioner. Although, as the NT Commissioner has submitted, there may be no direct or indirect inconsistency between the PSEM Act provisions and the definition of ‘casual employee’ in the Act, the incorporation by reference of the PSEM Act in clause 6.1 for definition purposes leaves it unclear whether an employee employed ‘on a casual basis’ pursuant to clause 6.2 is to be equated with a casual employee under the Act or refers to a more confined category of employee in accordance with the PSEM Act. The uncertainty is compounded by the fact that different expressions are used in respect of casual employment in the Act; for example, clause 6.5(a) refers to an ‘employee engaged on a casual basis’, whereas clause 6.5(b) refers simply to ‘casual employees’.

[42] We consider that the appropriate course is to:

(1) add a definition of ‘casual employee’ (in Schedule A – Definitions) which adopts the meaning in s.15A of the Act;

(2) delete clause 6.1, but add a note to clause 6.2 to the effect that the PSEM Act also contains provisions which specify the basis of engagement of employees covered by the award; and

(3) delete references to employees employed ‘on a casual basis’ and replace them with ‘casual employee’.

[43] We do not think it necessary or appropriate to incorporate restrictions on the use of casual employees contained in the PSEM Act, as urged by the CPSU and the UWU. Under s.40 of the Act, the PSEM Act prevails over the NT Award to the extent of any inconsistency (unless prescribed otherwise by regulation). Such restrictions on the use of casual employment as are contained in the PSEM Act will therefore continue to operate notwithstanding anything in the NT Award. It would be inappropriate to selectively incorporate provisions currently contained in the PSEM Act into the NT Award, particularly as the PSEM Act may be amended in the future and will continue to prevail over the NT Award.

[44] No party contended that the NES casual conversion provisions do not apply to persons covered by the NT Award, nor did any party oppose our provisional view that a reference to those provisions should be added to the award. Accordingly, we confirm our provisional view to that effect.

[45] Consistent with the above conclusion, clause 6, Types of employment, will be amended to provide as follows:

“6.1 An employee can be employed as either a full-time, part-time or casual employee.

NOTE: The PSEM Act contains provisions which specify the basis of engagement for an employee covered by this award.

6.2 [reproduce current clause 6.3]

6.3 [reproduce current clause 6.4]

6.4 Casual employment

(a) A casual employee will be paid the hourly pay rate for their classification in clauses 10.3, 10.4 and Schedule M – Power and Water.

(b) Casual loading

Subject to a schedule to this award which may provide otherwise, in addition to the ordinary hourly rate and penalty rates payable for shift, weekend and public holiday work payable to full-time employees, casual employees will be paid a loading of 25% of the ordinary hourly rate for the classification in which they are employed. The loading is in lieu of paid leave entitlements (other than long service leave), notice of termination of employment and redundancy benefits, and public holidays.

(c) Offers and requests for casual conversion

Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.

NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution.”

[46] We confirm the other, unopposed provisional views expressed in relation to this award in the 26 August statement.

Victorian Public Service Award 2016
Victorian State Government Agencies Award 2015
Victorian Government Schools Award 2016
Victorian Government Schools – Early Childhood – Award 2016

[47] The casual conversion provisional view expressed in the 26 August statement applies to all of the above awards but, in that statement, we identified the Victorian Public Service Award 2016 (VPS Award) as an example of where the proviso in that provisional view may be applicable. We said in the 26 August statement (at [14(2)]):

“… The Victorian Public Service Award 2016 covers employees who are the subject of a referral of power pursuant to the Fair Work (Commonwealth Powers) Act 2009 (Vic). Section 5(1)(a) excludes from the referral ‘matters pertaining to the number, identity or appointment (other than terms and conditions of appointment) of employees in the public sector who are not law enforcement officers’. The effect of this provision may be that the NES casual conversion provisions do not apply to employees under this award because they concern the identity and appointment of persons as full-time or part-time employees in the Victorian public sector (see ss.30B and 30H of the Act).”

[48] The above observation is equally applicable to the Victorian State Government Agencies Award 2015 (VSGA Award), the Victorian Government Schools Award 2016 (VGS Award) and the Victorian Government Schools – Early Childhood – Award 2016 (VGS-EC Award), since all of these awards also cover employees the subject of a referral of power pursuant to the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act).

[49] We also expressed the following provisional views in the 26 August statement:

(1) Clause 6.5 of the VPS Award, which defines a casual employee as ‘an employee engaged and paid as a casual employee’, is not consistent with the casual definition in s.15A of the Act and gives rise to interaction uncertainty or difficulty, and should be deleted and replaced (in clause 2) with a new definition of ‘casual employee’ which refers to s.15A of the Act.

(2) Clause 8.6(a) of the VSGA Award, which provides that ‘A casual employee is an employee engaged and paid as a casual employee’, is not consistent with the casual definition in s.15A of the Act and gives rise to interaction uncertainty or difficulty, and should be deleted and replaced (in clause 3) with a new definition of ‘casual employee’ which refers to s.15A of the Act.

(3) A definition of ‘casual employee’ which refers to s.15A of the Act should be added to clause 3 of the VGS Award.

(4) A definition of ‘casual employee’ which refers to s.15A of the Act should be added to clause 3 of the VGS-EC Award.

[50] The State of Victoria submitted 19 that the NES casual conversion provisions in the Act do not apply to employees covered by the VPS Award and the VSGA Award, and that it would be beyond the powers of the Commission to mandate conversion of casual employment in the manner contemplated by the NES casual conversion provisions. It submitted that the casual conversion provisions concern the ‘number, identity or appointment… of employees in the public sector’ within the meaning of s.5(1)(a) of the Referral Act and therefore their application to employees covered by the VPS Award or the VSGA Award is not supported by s.4(1) of the Referral Act. It acknowledged that it would be within the scope of both the referral and Re Australian Education Union; Ex parte Victoria20 (Re AEU) for the Commission to make or vary an award to regulate the terms and conditions upon which casual employees may be engaged; however, such regulation cannot extend to conferring upon employees engaged as casuals the right to convert to continuing employment upon the fulfilment of specified criteria such as those set out in s.66B of the Act. The State submitted that we had correctly identified the issue in the 26 August statement (in the extract set out above), in that a casual employee is engaged for so long as work is available and the engagement ceases when the work is no longer available, in contrast to continuing or permanent employment where an employee is engaged on an ongoing basis. It submitted that the Commission cannot require the State to convert a person engaged as a casual to continuing employment as it falls outside the scope of the referral of power by force of s.5(1)(a) of the Referral Act. It further submitted (implicitly in opposition to provisional views (1) and (2) above) that it is not necessary to include the definition of casual employee contained in s.15A of the Act in either of the awards.

[51] The State of Victoria (Department of Education and Training) separately submitted 21 that the NES casual conversion provisions did not apply to employees covered by the VSGA Award, the VGS Award and the VGS-EC Award, for the same reasons as advanced by the State of Victoria. The Department also went further and expressly submitted that s.15A of the Act also did not apply to persons covered by the VSGA Award, the VGS Award and the VGS-EC Award because a requirement to adopt the particular characterisation of casual employment prescribed bv s.15A would also infringe upon the State of Victoria’s capacity to determine the appointment and number of employees in the public sector and thus dealt with a matter excluded from the referral of power in s.5(1) of the Referral Act. This submission was elaborated upon at the hearing before us on 14 September 2021 by counsel for the Department as follows:

“…section 15A … is a definition which is quite deliberately focused entirely on the appointment of an employee.  It is concerned only with the offer and acceptance between persons that creates such an appointment, and it also prohibits a prospective employer from having a certain advanced commitment of work when offering employment to a prospective casual employee.

So, the whole purpose behind this definition is to ensure that both parties to that relationship are aware of the rights and obligations on appointment, and I'm sure that the Bench is quite familiar with the section, but subsection (4) is quite unapologetic about that saying to avoid doubt the question of whether a casual is to be assessed on the basis of the offer of employment and acceptance of that offer, not on the basis of any subsequent conduct of either party.” 22

[52] In the course of the hearing, we raised with the Department what the consequences of this submission concerning the non-applicability of s.15A to the Department and its employees were with respect to the application of the NES entitlements to the Department and its employees. We raised this because the NES entitlements to paid annual leave and personal leave apply to employees other than casual employees, as defined in s.15A (see s.86 and s.95 respectively). With leave, the State of Victoria and the Department filed a joint written submission addressing this issue. They submitted that:

•  if the Commission was of the view that s.15A does not apply to persons covered by the four awards, the provisions in Part 2-2 of the Act would apply by reference to the common law definition of casual employment, as was the case prior to the commencement of the Amending Act;

•  the selective application of provisions of the Act to Victorian public sector employees is enabled by the provisions in Division 2A of Part 1-3 of the Act, and a provision in the NES can only bind the State of Victoria and its employees in circumstances where the Referring Act permits this to occur;

•  this is recognised in the four awards, which each contain the following term: ‘Both the NES and this award only apply to the extent that legislative power in relation to a particular matter is referred to the Commonwealth Parliament by the Victorian Referral’;

•  alternatively, if the Commission was of the view that s.15A could apply to persons covered by the four awards, it could not do so in its entirety, and s.15A(5)(a) is excluded.

[53] The CPSU 23 and the Health Services Union24 agreed that the effect of the exclusion in s.5(1)(a) of the Referral Act is that the NES casual conversion provisions do not apply to employees covered by the award. However, both disagreed that s.15A was excluded by the Referral Act from application to the employees covered by the awards.

Consideration

[54] We will first deal with the casual conversion provisional view. It is clear, we consider, that the NES provisions concerning employer offers for casual conversion in Subdivision B of Division 4A of Part 2-2 of the Act do not apply to persons covered by the four Victorian public sector awards by reason of s.5(1)(a) of the Referral Act. The provisions of Subdivision B require an employer, in prescribed circumstances, to offer full-time or part-time employment to casual employees. Such a requirement plainly constitutes a matter pertaining to the number, identity or appointment of employees in the Victorian public sector. The position is, however, less clear with the NES provisions concerning the employee’s residual right to request casual conversion in Subdivision C of Division 4A of Part 2-2. These provisions do not, on one view, impose any absolute requirement on an employer to accede to a request to conversion from casual to full-time or part-time employment. In 4 yearly review of modern awards - Part-time employment and Casual employment, 25 a Full Bench of the Commission considered a submission advanced to the effect that the inclusion of the model casual conversion clause which the Full Bench had developed (and upon which the provisions of Subdivision C were largely derived) in the Local Government Industry Award 2010 would offend the implied constitutional limitation on Commonwealth legislative power enunciated in the High Court decisions in Melbourne Corporation v Commonwealth26 and Re AEU. The Full Bench dealt with this submission as follows (footnotes omitted):

“[66] We do not consider that the model casual conversion clause which we have determined infringes the Melbourne Corporation principle for two reasons. First, it does not curtail or impair the capacity of local governments to determine the number and identity of their employees because the clause operates only in respect of existing employees of local governments. The model clause confers a right to request conversion on particular casual employees who have already been selected for employment by their employer and worked a regular pattern of hours for a period of at least 12 months. The principal effect of a successful conversion request is to alter the employment entitlements of an existing employee by enabling the employee to access the benefits of the NES. The prescription of wages and working entitlements for State employees does not infringe the implied limitation.

[67] Second, and in any event, the model conversion clause does not give an entitlement to conversion, but only an entitlement to request conversion and have that considered by the employer in a structured process. The employer may refuse the conversion request on reasonable grounds. While the clause does not permit the refusal of a conversion request on unreasonable grounds, we do not consider that this would constitute a significant impairment of a local government’s employment powers because there is no basis to consider that a local government would desire to engage in unreasonable conduct.”

[55] The casual conversion provisional view is only concerned with whether a provision should be inserted in the Group 4 awards referring to the NES casual conversion provisions. Such a provision serves only as a ‘reminder’ of or ‘alert’ to the existence of the NES casual conversion provisions, and does not by itself establish any substantive obligations or rights. Whether such a provision is included in an award does not affect whether the NES casual conversion provisions apply to the persons covered by that award. There is sufficient doubt as to whether the NES casual conversion provisions apply to persons covered by the VPS Award, the VSGA Award, the VGS Award and the VGS-EC Award such as to cause us to conclude that a provision of the type contemplated by the casual conversion provisional view should not be included in any of these awards.

[56] We do not, however, agree that s.15A is incapable of application to persons covered by the four Victorian public sector awards. At least insofar as subsections (1)-(4) are concerned, they are merely definitional in nature and do not prescribe any substantive obligation or entitlement. As McHugh J said in Allianz Australia Insurance Limited v GSF Australia Pty Ltd: 27 ‘Except in rare cases, definitions are not intended to enact substantive rules of law. Their function is to aid the construction of those substantive enactments that contain the defined term or terms.’28 Section 15A does not regulate who is to be appointed by any employer to any position or the mode of their employment. At least in the context of the NES provisions of the Act, it serves to define the expression ‘casual employee’, which is used to identify a category of employees to whom certain NES entitlements are not applicable (most notable, annual leave and personal leave). That is a matter which pertains to the terms and conditions of employees which, in respect of persons covered by the four awards in question, is not excluded from the referral of powers by s.5(1)(a) of the Referral Act.

[57] The inclusion of a definition of ‘casual employee’ in the four awards which incorporates by reference the definition of that expression in s.15A would serve no different purpose. It would serve only to aid in the identification of the class of employees to whom certain entitlements do, or do not, apply. Most notably, it would aid the construction of the awards by identifying with clarity which employees are to be paid the casual loading of 25% in lieu of certain leave entitlements. Such a definition is ancillary to the prescription of the terms and conditions of employees under the four awards. It does not impose any prescription on the State of Victoria as to the number, identity or appointment of employees in the Victorian public sector. In particular, such a definition does not say anything about whether employees may or may not be given a firm advance commitment to continuing and indefinite work according to an agreed pattern of work; it merely distinguishes between the terms and conditions of employment to apply to an employee depending on whether such a commitment is given.

[58] We accept that s.15A(5) may be of a different character, but we do not consider that this subsection forms part of the definition of ‘casual employee’ in s.15A, and it is not intended that it be incorporated by reference into any of the four awards.

[59] For these reasons, we confirm provisional views (1)-(4) set out above.

[60] We also confirm the other provisional views expressed in respect of the VPS Award, the VSGA Award, the VGS Award and the VGS-EC Award in the 26 August statement which were not opposed by any party.

State Government Agencies Award 2020

[61] There is one matter in respect of this award. In respect of the casual conversion provisional view, the CPSU agreed with the provisional view but submitted 29 that it might be argued that the proposed variation could be subject to the implied limitation in Re AEU if it could be shown that it placed unacceptable constraints upon Victoria’s ability to function as a State. It noted, however, that this issue was addressed by a Full Bench of the Australian Industrial Relations Commission in Award Modernisation – Decision – re Stage 4 modern awards,30 where it was stated that issues of such nature could only be determined on a case-by-case basis and that no generally-applicable test could be formulated.

[62] We note the CPSU’s submission. We confirm the casual conversion provisional view in relation to this award. We also confirm the other provisional views expressed concerning this award stated in the 26 August statement.

Other provisional views confirmed

[63] Additionally, we confirm the provisional views expressed in the 26 August statement relating to the remaining 23 Group 4 awards which were not opposed by any party. These awards are listed at Attachment A to this decision.

[64] We omitted from Attachment A of the 26 August statement that the Note Printing Australia Award 2016 does not make provision for casual conversion (although the body of the 26 August statement did note that only two Group 4 awards contain a casual conversion clause). Like the other awards being dealt with in this Group our view is that this award should include a reference to the casual conversion provisions in the NES. We confirm that a provision to this effect will be inserted into the award.

Modern awards objective

[65] In each case above where we have concluded that a variation to an award is necessary under clause 48(3) of Schedule 1 of the Act or should otherwise be made, we are satisfied that the variation is necessary to achieve the modern awards objective in s.134(1) of the Act. We have taken into account in each case the matters specified in s.134(1)(a)-(h). In each case, we consider all the matters apart from paragraph (g) to be of little or no relevance and of neutral weight in our consideration. In paragraph (g), we have treated the need to ensure that awards are ‘easy to understand’ as significant having regard to the changes to the Act effected by the Amending Act. The paramount consideration has been the need to maintain the fairness and relevance of awards provisions in light of the Amending Act.

Next step

[66] Draft determinations varying the awards dealt with in this decision will be issued in conjunction with this decision. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) WEDNESDAY 22 SEPTEMBER 2021.

VICE PRESIDENT

Appearances:

J Kenchington-Evans on behalf of the AEU.
M Spaccavento on behalf of the Australian Public Service Commission.
D Doherty on behalf of the Commissioner for Public Employment (Northern Territory Government).
M Perica on behalf of the CPSU (SPSF Group).
A Nash on behalf of the CPSU (PSU Group).
L Svendsen on behalf of the HSU.
G O’Kearney on behalf of the State of Victoria.
A Denton of counsel on behalf of the State of Victoria (Department of Education and Training).
R Lenegan on behalf of Telstra.
H Miflin on behalf of the UWU.

Hearing details:

2021.
Sydney and Melbourne (via video-link):
14 September.

Printed by authority of the Commonwealth Government Printer

<PR734053>

ATTACHMENT A

 1   [2021] FWCFB 4144.

 2   [2021] FWCFB 4714.

 3   [2021] FWCFB 5281.

 4   Ibid at [15].

 5   APSC, Submission, 9 September 2021.

 6   CPSU (PSU Group), Submission, 9 September 2021.

 7   UWU, Submission, 8 September 2021.

 8   [2021] FWCFB 4928.

 9   [2021] HCA 23.

 10   Department of Parliamentary Services, Department of the House of Representatives, Department of the Senate and the Parliamentary Budget Office

 11   The Parliamentary Service, Submission, 9 September 2021.

 12   CPSU (PSU Group), Submission, 9 September 2021.

 13   CPSU (PSU Group), Submission, 9 September 2021.

 14   [2021] FWCFB 5530.

 15   CPSU (PSU Group), Submission, 9 September 2021.

 16   Commissioner for Public Employment (Northern Territory Government), Submission, 9 September 2021.

 17   CPSU (PSU Group), Submission, 9 September 2021.

 18   UWU, Submission, 8 September 2021.

 19   State of Victoria, Submission, 9 September 2021.

 20   [1995] HCA 71, 184 CLR 188.

 21   State of Victoria (Department of Education and Training), Submission, 9 September 2021.

 22   Transcript, 14 September 2021, PNs 674-675.

 23   CPSU, Submission, 9 September 2021.

 24   Health Services Union, Submission, 9 September 2021.

 25   [2018] FWCFB 4695, 282 IR 135.

 26   [1947] HCA 26, 74 CLR 31.

 27   [2005] HCA 26, 221 CLR 568.

 28   Ibid at [12].

 29   CPSU (SPSF Group), Submission, 9 September 2021.

 30   [2009] AIRCFB 945.