A recent decision by the Full Bench of the Fair Work Commission
(FWC) found that a period of casual employment
that is regular and systematic counts as 'continuous
service' for the purposes of notice of termination and
The National Employment Standards (NES)
contained in the Fair Work Act 2009 (Cth) (FW
Act) provide minimum entitlements to notice periods and
redundancy pay based on an employee's service.
Under the FW Act, period of service is the period during which
the employee is employed by the employer, but does not include any
period of unauthorised absence, unpaid leave or unpaid authorised
absence (except community service leave or stand down).
In AMWU v Donau Pty Ltd (2016), a number of permanent
shipyard employees who were being retrenched had prior periods of
service as casuals. They had been working on a regular and
systematic basis, with no break between the casual and permanent
periods of service. During their casual employment, the employees
received a 25% casual loading.
The FWC decided whether this prior casual employment was to be
counted for the purposes of calculating redundancy pay and notice
The FWC noted that a period of continuous service as defined by
the FW Act includes a period of regular and systematic casual
Implications for employers
The effect of this ruling would arguably be that prior casual
employment needs to be counted for the purposes of:
redundancy pay and notice;
annual and personal/carer's leave; and
the 12-month qualifying period for an employee to have the
right to request flexible working arrangements or to take unpaid
Please note that this ruling is highly contentious and is likely
to be appealed. The Full Bench that issued the ruling was split
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