Public Service Association and Professional Officers' Association... [2026] NSWIC 10 | Case summary

[2010] HCA 42Public Service Association and Professional Officers' Association... [2026] NSWIC 10 | Case summary | Zoe

[28]

The respondent opposes the application and asserts that all CSFOs employed in CSNSW, including Mr Jackson, are casual employees.
The resolution of this controversy turns on the definition of casual employment in s 43(4) of the Government Sector Employment Act 2013 (NSW) (GSE Act). Section 43(4) provides that "casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required."
At the heart of the dispute are two critical issues. The first concerns the meaning of casual employment as defined in s 43(4). This issue calls into question whether or to what extent the statutory definition imports the concept of casual employment from the general law. More specifically, the question arises as to whether it extends to employment the practical reality of which involves the performance of work on a regular and systematic or continuous and predictable basis.
The second issue is the proper characterisation of Mr Jackson's pattern of work for the purposes of the statutory definition of casual employment.
The PSA relies on the distinction drawn in the GSE Act between 'ongoing', 'temporary', and 'casual employment' at s 43(1). It asserts that the nature of Mr Jackson's work is regular and systematic and so does not fit within the definition of casual employment found in s 43(4) of the GSE Act. The PSA contends that, because Mr Jackson's work pattern is regular and systematic and the nature of his employment is ongoing, his employment cannot be construed as temporary, and must, therefore, be regarded as ongoing, describing Mr Jackson as "a permanent part-time employee".
The respondent denies that Mr Jackson's work pattern can be so characterised and that, even if it was, the statutory definition of casual employment extends to the performance of work on a regular and systematic basis.
For the reasons that follow, I accept the PSA's construction of s 43(4) and determine that Mr Jackson is not employed as a casual employee under the GSE Act. Instead, Mr Jackson is engaged in ongoing employment within the meaning of s 43(2) of the GSE Act.

[29]

This controversy arises in the context of an industrial dispute between the PSA and CSNSW.
Mr Jackson is one of between 125 to 145 CSFOs employed in CSNSW, which is an executive agency related to the New South Wales Department of Communities and Justice. He is therefore employed by the respondent in the Public Service of New South Wales in accordance with the GSE Act and the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (the Conditions Award).
As a CSFO, Mr Jackson is required to perform the duties set out in the "Role Description for a CSFO (casual)", and as supported by the "Field Officer Standard Operating Procedures - July 2024" (SOP). Relevantly, those duties include transporting offenders who are subject to community service orders to and from locations where community service work is performed; and supervising those offenders while the work is carried out. Community service work is typically performed outside a local Community Corrections office and requires a CSFO to supervise offenders undertaking outdoor tasks such as rubbish collection, painting, graffiti removal, and bush regeneration projects for local services or government departments. CSFOs may also supervise community service work undertaken at Community Corrections offices, which are characterised as "light duties".
In performing these duties, Mr Jackson worked from a number of Community Corrections office locations from which shifts are assigned. Since 2021 he has principally worked from the Bankstown, Liverpool, and Campbelltown Community Corrections offices, with occasional shifts at the Fairfield office (the Sydney Metro, Metro East locations).
In February 2022, the PSA participated in a Joint Consultative Committee meeting with CSNSW. In this meeting, the PSA claimed that its members who are CSFOs should be provided with the opportunity to convert to ongoing employment based on their long-term employment and the fact that members undertook the same hours and shifts every week for years. The PSA asserted that this opportunity should be provided to CSFOs who have a "demonstrated regular pattern of work". The PSA put this position to CSNSW in a letter dated 28 June 2022, in which it also requested that a working group be formed to determine a framework for transitioning CSFOs to ongoing employment.
In response, on 27 July 2022, CSNSW informed the PSA that there was no intention to transition any CSFOs to ongoing employment. CSNSW stated that it had an "operational need" for CSFO positions to be flexible and that it was not desirable to convert a portion of the CSFO workforce to ongoing employment as it "would create a hybrid workforce and the potential for division among Field Officers". CSNSW outlined the results of a review of a six-month period from 17 January 2022 to 3 July 2022 which was conducted to assess the PSA's claims about CSFOs working the same hours and shifts each week. CSNSW also provided the following results on which it relied to conclude that CSFOs "lacked the consistency required to support a move to ongoing employment arrangements":

[47]

The first issue before this Court is a matter of statutory interpretation. The GSE Act defines the term "casual employment": s 43(4). The focus must be on construing this definition in accordance with well-established principles calling for the meaning of a statutory provision to be ascertained according to the natural and ordinary meaning of the text of the statute not in isolation, but having regard to its purpose and its statutory and historical context.[1]
I am mindful that the meaning of the statutory text is informed "by the need for the courts to apply the text each time, not in isolation, but as part of the totality of the common law and statute law as it then exists".[2]
The history of the Australian common law and statutory regulation of casual employment highlights the concept's natural amorphousness and exposes often dramatic fluctuations in the approach of the courts and the legislature in their attempts to grapple with the inherent tension between the demands of economic flexibility and the promotion of secure employment.
The first High Court case dealing at any length with the concept of casual employment was Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545; [1936] HCA 66. In that case, the High Court divided evenly on that question of whether Mr Doyle was a casual employee. Dixon J considered the concept of casual employment to be "ill defined" and focused on the "intermittent" quality of Mr Doyle's work and the fact that it was "ad hoc and could not be expected to last indefinitely": Doyle at 555, 557. All members of the Court, however, regarded an employee's "casual" status as depending on the actual facts and circumstances of the employee's work. This approach was not apparently tethered to any particular view of the contractual framework under which casual employees were engaged.
In a judgment the year after Doyle, although in a different legislative context, Dixon J recognised the uncertainties inherent in an approach that requires attention to all the facts and circumstances of the case by observing:

[49]

The concept of casual employment assumed a different form in the landscape of industrial arbitration, where industrial awards incorporated higher wage rates - or casual loadings - for casual employees. These awards initially defined casual employment by distinguishing it from weekly hire (the predecessor to full-time employment),[4] so that casual employees were those for whom a full week's work was not provided.[5] This position changed in 1941, when O'Mara J introduced into the Metal Trades Award what became a familiar award definition of a casual employee: "A casual employee is one engaged and paid as such".[6] The same (or a similar) definition remained in Commonwealth awards, including modern awards, until subsequent legislative amendments, the latest of which I refer to below.
In recent years, the evolution of the common law in Australia has culminated in the High Court's fundamental recasting of the general law concept of casual employment in Workpac Pty Ltd v Rossato.[7] In light of Rossato, the task of identifying casual employment according to the general law is largely confined to an analysis of the binding terms of the employment contract, and is focussed on the question of whether those terms embody the existence or otherwise of a "firm advance commitment" as to the duration of the employee's employment.
In response to Rossato, the legislature amended s 15A of the Fair Work Act 2009 (Cth) to redefine casual employment.[8] It did so in a manner that broadly restored the prior general law approach that had been encapsulated by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 - an approach that the High Court in Rossato unambiguously rejected as having "strayed from the orthodox path": at [66]-[67]. The Skene approach is, in this regard, consistent with the High Court's prior approach in Doyle. It extends the inquiry to the whole of the parties' conduct in performing the agreement, including by reference to the actual way in which the work was carried out, and is not confined to the legal rights and obligations of the parties: Skene at [180].
Critically, neither party contends that the definition of casual employment in the GSE Act adopts or applies the general law concept of casual employment as determined in Rossato.
The respondent relies on some aspects of casual employment as it was conceived by the general law at the time of the enactment of the GSE Act (from which the High Court in Rossato subsequently and substantially departed) which I address below. However, there is no issue that s 43(4) reflects the common law concept of casual employment as it now stands. Neither party contends that the statutory definition simply adopts the body of general law on casual employment such that it "speaks continuously to the present, and picks up the case law as it stands from time to time": Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 at [23].
It is thus common ground that casual employment for the purposes of the GSE Act is not defined by the existence or otherwise of a "firm advance commitment" as to the duration of the employee's employment, to be determined exclusively by reference to the enforceable legal rights and obligations which constitute the employment relationship: Rossato at [57].
Unlike the provisions of the Fair Work Act with which the High Court was concerned in Rossato, the GSE Act explicitly defines the term "casual employment". It does so by reference to some of the historically acknowledged indicia or manifestations of casual employment such as irregularity, intermittency, and discontinuity (or shortness) in the employee's pattern of work.[9]
In addition, the GSE Act differs from the amendments made to s 15A of the Fair Work Act in response to Rossato, which largely reflect the prior general law articulated in Skene.[10] Subsection 43(4) does not in terms reflect the pre-Rossato focus on an employment relationship that is characterised by an absence of a "firm advance commitment" to continuing and indefinite work (albeit as assessed on the basis of the real substance, practical reality, and true nature of the employment relationship, and not only on the formal legal rights and obligations of the parties).

[52]

Secondly, the respondent asserts that s 43(4) defines casual employment to include employment to carry out work that is regular and systematic because it was enacted after the insertion of Chapter 2 Part 7 of the IR Act, which deals with public sector disciplinary appeals. This Part confers rights of appeal against certain disciplinary decisions on various groups of public sector employees, including those employed in the Public Service under the GSE Act. It preserves such a right for "employees engaged on a casual basis" who are also "engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months" and who "would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer".[12] It is said that s 43(4) of the GSE Act should take its meaning consistent with cognate legislation of this kind which contemplates engagement in casual employment on a regular and systematic basis.
Thirdly, the respondent points to references in the second reading speech accompanying the introduction of the GSE Act about Parliament's intention "to modernise [the] public service" including a need for "greater flexibility in staff deployment," "a mobile workforce", and to overcome "rigid ... workforce arrangements".[13] This was said to support the notion that the words "other work as and when required" in s 43(4) were intended by Parliament to expand the scope of casual employment beyond that determined in the DOJ case.
In contrast, the applicant focuses on the text of s 43(4) of the GSE Act and contends that this definition does not import the common law concept of casual employment, or the extent to which the common law was applied by Boland J to the predecessor legislation in the DOJ case. Instead, the statutory definition in terms fixes exclusively on the nature of the work that is actually performed or, alternatively, on the purpose of the employment to carry out work of the character described in the section.

[53]

It is necessary to consider the reasoning of Boland J in the DOJ case in order to evaluate the parties' respective cases, particularly in light of the respondent's partial reliance on that case in advancing its construction of the GSE Act. The operation of the PSEM Act also constitutes part of the GSE Act's legislative history and bears legitimately on the construction of s 43(4).[14]
In the DOJ case, Boland J drew upon aspects of the common law concept of casual employment but only on the basis that defining "casual employee" by reference to employment "on a casual basis" in s 7(1)(c) of the PSEM Act gave rise to an assumption that in adopting this concept the legislature "had regard to the general employment law": DOJ case at [17].
Ultimately, Boland J effectively conceived of casual employment under the PSEM Act as a sui generis statutory construct which significantly modified and departed from the prevailing general law concept. His Honour did so, firstly, by determining that s 38(3) of the PSEM Act restricted casual employment to the performance of work the availability of which was irregular or intermittent as opposed to regular or continuous: DOJ case at [47]. There was some distinction made by his Honour between the nature of the work itself and its availability to the casual employee. However, this was in the context of repudiating the notion that a casual employee could not perform work in filling unexpected absences of officers where that work was ordinarily regular for the absent officer but was only available to the casual employee on a short term or irregular basis: DOJ case at [51]. It is nevertheless reasonably clear that Boland J considered s 38(3) to limit the scope of casual employment by reference to the nature of the work to be performed by the putative casual employee, including in terms of the availability of work to that employee.
Additionally, Boland J relied on the statutory preference for non-casual employment as the "usual basis" for employment (s 7(3)) and the restrictions on casual employment in the Commissioner's guidelines which were incorporated by reference and applied in s 38(1).[15] These restrictions included a prohibition against employing casual employees for a single period exceeding 3 months, and a positive obligation on public service departments to give active consideration to whether a permanent or ongoing officer should be employed before making any decision to engage a casual employee.
This meant that the general law focus on the existence or otherwise of a "firm advance commitment" to the duration of the employee's employment must be subordinated to the restrictions on casual employment under the PSEM Act. The proposition that employment can remain genuinely "casual" in the absence of such a commitment, even if the employee's work pattern turned out to be regular and systematic, did not apply to casual employment under the PSEM Act.[16] The determinative factor under s 38(3) of the PSEM Act was the nature of the employee's pattern of work. The requisite feature of irregularity or intermittency was not fulfilled "if what has evolved is a regular or systematic pattern of work whereby there is a tacit expectation of ongoing work being offered and accepted".[17]
Properly understood, this is the effect of Boland J's approach in the DOJ case. The respondent's reliance on the DOJ case misses the important nuance in his Honour's reasoning which meant that the PSEM Act did not simply adopt the prevailing common law approach to identifying casual employment. The true position is that, prior to the enactment of the GSE Act, casual employment as a category of employment within the New South Wales public sector had never been entirely coextensive or commensurate with the common law.
The question is whether, by recasting the definition of casual employment in the terms of s 43(4) of the GSE Act − in particular with the addition of the words "other work as and when required" − Parliament had intended to unshackle the category of casual employment from the restrictions on its use by reference to the nature and availability of the work actually performed by the employee.
I am not persuaded by the respondent's submissions that this is the effect of s 43(4).
Firstly, the second reading speech on which the respondent relies does not refer to casual employment. The references in that speech to "workforce flexibility" and "mobility" are in the most general terms. These broad and abstract goals, so far as they might have any application to the use of casual employment under the GSE Act, may be seen to have been achieved in ways that are consistent with continuing to define casual employment by reference to the nature and availability of the work actually performed by the employee. This may include the absence of any presumption in favour of ongoing employment under s 7(3) of the former PSEM Act, and thus the removal of any obligation on public service departments to consider, in every case, engaging an ongoing employee before making any decision to engage a casual employee. It may also include the removal of restrictions on casual employment that had been imposed by the Commissioner's guidelines such that, for example, casual employees could now be engaged for a single period exceeding 3 months.
There is otherwise no indication in the text or context of s 43(4) of the GSE Act that the legislature intended to depart from the essential restrictions on the use of casual employment that applied under s 38(3) the PSEM Act. On the contrary, the s 38(3) restrictions were substantially and explicitly absorbed into a new s 43(4) definition. This definition focuses attention directly and exclusively on the nature of the work performed.
In other words, consistent with the effect of Boland J's analysis in respect of the PSEM Act in the DOJ case, casual employment is defined in s 43(4) ultimately by reference to particular key indicators or manifestations of an absence of a firm advance commitment to ongoing employment, rather than by the absence of that commitment as such. Casual employment is defined by the nature of the work available to and actually undertaken by the employee, namely by irregularity, intermittency, and discontinuity in the actual pattern of work of the employee in question. At its heart, this statutory notion of casual employment remains tethered to its characterisation as employment for work that is essentially uncertain, unpredictable, and insecure. At least in this regard, s 43(4) reflects the pre-Rossato general law feature of casual employment whereby "the availability of work for the employee is short-term and not-ongoing and that the employer's need for further work to be performed by the employee in the future is not reasonably predictable": Skene at [182].
Secondly, the idea that the addition of the words "other work as and when required" serves to expand the definition casual employment to include employment to carry out regular and systematic or continuous work is unconvincing. If this were correct, s 43(4) would be denuded of any meaningful function. The requisite nature of the work to be carried out by the employee would be both qualified and unqualified by the indicia of irregularity, intermittency and discontinuity. There would be no basis on which to distinguish casual from ongoing employment.
It was also common ground that the words "as and when required" qualified the reference to "other work". This qualification lends weight to the proposition that "other work" is intended to encapsulate work the availability of which is ad hoc in nature and similar to the other forms of work identified in s 43(4). The condition of work arising only "as and when required" is distinguishable from the continuity and stability of employment contemplated by the concept of ongoing employment in s 43(2). To give it sensible work to do, the reference to "other work" must refer to work of a similar or like nature to the other kinds of work identified in s 43(4). They are all kinds of work that are distinguished by unpredictability, uncertainty, discontinuity, and/or insecurity.
In the face of this insuperable difficulty, the respondent's resort to the determinative force of the label which the parties attach to their relationship is equally unconvincing. Labels have never been regarded as decisive of the legal character of an employment relationship. Even on the current and more formalistic general law approach, labels are not decisive: Rossato at [97]. It would have been a simple matter for the legislature to prescribe that casual employees are employees who are unambiguously designated as such at the time of their engagement; or to adopt the formulation found in some industrial instruments to which I have earlier referred, to the effect that a casual employee is one "engaged and paid as such". It did not do so.
Instead, Parliament chose to define casual employment exclusively by reference to the nature of the work carried out by the employee. The respondent's construction would render that definition effectively meaningless and unworkable. To make the contractual label decisive in this context would be to fly in the face of the terms of s 43(4) of the GSE Act.
Finally, the respondent's reliance on the disciplinary appeal rights of public sector employees in Chapter 2 Part 7 of the IR Act is in substance a resort to the in pari materia principle that presumes "the legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection".[18]
The respondent directs attention to the IR Act in circumstances where, unlike the provisions of the Fair Work Act examined in Rossato,[19] there is no other provision in the GSE Act which detracts from the view that the nature of the work performed by a casual employee pursuant to s 43(4) must be qualified by the indicia of irregularity, such as uncertainty, discontinuity, intermittency, and unpredictability.
However, in my view the GSE Act and Chapter 2 Part 7 of the IR Act are not in pari materia for the purpose of the definition of casual employment.
The IR Act itself does not define the concept of "casual employment".
Further, public sector disciplinary appeals under Chapter 2 Part 7 of the IR Act apply to a variety of public sector employment regimes which do not contain a uniform definition of casual employment. These appeals cover other cohorts of public sector employees including those employed under the Health Services Act 1997 (NSW), the Teaching Services Act 1980 (NSW), and the Transport Administration Act 1988 (NSW).
The Health Services Act does not define, nor does it refer to, casual employment.
Section 50(2) of the Teaching Services Act provides that the category of "temporary employees" may be "employed on a ... casual ... basis" but does not otherwise define the term.[20]
Only s 68E(5) of the Transport Administration Act contains the same definition of casual employment as found in s 43(4) of the GSE Act. However, the concept of casual employment within the Transport Administration Act is not itself uniform. For the purpose of the transfer of employees to the employment of the National Heavy Vehicle Regulator, "casual employee" is defined as "an employee whose employment is in a category of employment that is described in or classified under a State industrial instrument as casual employment or who is otherwise engaged as a casual employee": Sch 7, s 233(7).
In this context, I am not able to infer that the legislature intended to attach the same meaning to casual employment across the various Acts. The same words have not been used to describe or define casual employment in the GSE Act and the IR Act. If anything, the particular definition given to casual employment in s 43(4) of the GSE Act might well indicate that the legislature intended the term to have a different meaning in the IR Act (and perhaps also the Teaching Services Act).
Even if it applied, any in pari materia presumption could only operate as a weak countervailing consideration in the face of the clear textual and historical context of the concept of casual employment in the GSE Act. I am not satisfied that s 98(3)(c) of the IR Act disturbs the proposition that the nature of the work performed by a casual employee pursuant to s 43(4) must be qualified by the indicia of irregularity, intermittency, and discontinuity.
The employment categories under the GSE Act more likely intersect consistently with s 98(3) of the IR Act in that the disciplinary appeal rights of employees who are described in s 98(3)(c)(i) and (ii) (see [45 ] above) are effectively preserved because they may be properly characterised as ongoing − not casual − employees for the purposes of the GSE Act and Chapter 2 Part 7 of the IR Act.
It follows that I accept the PSA's primary construction of s 43(4) and I reject the respondent's primary contention that this definition extends to employees who work according to a regular and systematic pattern and that the decisive factor in this case is the "casual" label attached to Mr Jackson's employment.
Casual employment under the GSE Act is defined by reference to the nature and availability of the work that is actually performed by the employee in question. This provision does not simply import the common law concept of casual employment. The statutory definition means what it says. It is employment to carry out work that is "irregular, intermittent, short-term, urgent" or work the availability of which is otherwise ad hoc or performed according to a pattern that is similarly characterised by discontinuity, uncertainty, and unpredictability.
The definition depends entirely on what the common law historically has taken to be the key indicators or manifestations of employment which is essentially insecure. The performance of work on a regular and systematic basis is antithetical to this category of employment: cf. DOJ case at [36](b). Further, the inquiry to ascertain the nature of the work is directed to the whole of the parties' conduct in performing their agreement.

[55]

The PSA contends that Mr Jackson's work was not irregular, intermittent, urgent, or short-term. It submits that Mr Jackson was allocated and performed work on a regular and systematic basis for four main reasons.
First, the work required of CSFOs is ongoing, as the need for officers to supervise offenders performing community service work is a fundamental function of the justice system.
Second, the allocation of this ongoing work is regular and systematic. Mr Jackson is rostered on a three-month basis with approximately two weeks' notice and can notify his future unavailability. In the past, these shifts were rarely cancelled, and even when community service work was suspended during the COVID-19 pandemic, the respondent made an effort to redeploy CSFOs to other duties.
Third, there was an expectation that Mr Jackson would perform rostered work. Although Mr Jackson could notify periods of his unavailability in advance, there was an expectation that he would work rostered shifts unless there was a "good reason" not to do so.
Fourth, Mr Jackson worked consistently, averaging between 2.7 and 3.5 shifts per week across 2019 to 2024, with the only substantial breaks in his employment corresponding to the COVID-19 period and his time on workers compensation.
The respondent's case also extends beyond its primary contention, which I have rejected, namely that s 43(4) includes employees who work according to a regular and systematic pattern and that the decisive factor is the "casual" label attached to Mr Jackson's employment. It also contends that, when considered overall, including in terms of locations and days of the week, Mr Jackson's work is "irregular" or "intermittent" or would otherwise be accepted as "other work when and as needed". It advances three main arguments.
First, the work of CSFOs is not predictable as it is impacted by the orders of magistrates for community service work. It is also impacted by the availability of vehicles, weather, and other logistics in relation to the offenders present to perform work. This is reflected by the explicit designation of Mr Jackson as a casual employee and the cancellation of shifts by CSNSW when availability cannot be ascertained in advance.
Second, the allocation of work reflects a high degree of flexibility and freedom of choice on the part of CSFOs. CSFOs can elect what days of the week they are available for work and the locations they make themselves available for. Although the rosters are allocated on a three-month basis, the roster is developed in response to CSFO availability and CSFOs may cancel rostered shifts or alter their availability at any time without needing approval or experiencing reproach.
Third, Mr Jackson's employment was disrupted by COVID-19 which meant that he was only able to perform alternative duties - not the duties normally associated with his role as a CSFO. Mr Jackson's time on workers compensation also disrupted his employment, during which he was not fit to work as a CSFO. This means that the rosters are an incomplete picture of Mr Jackson's employment and indicates that he worked irregularly and intermittently throughout this period. Notably, it is only after 6 February 2023 that Mr Jackson worked as a CSFO for a period longer than 8 months, without a break of at least five months.

[66]

Rosters for Field Officers in the Sydney Metro area are issued for three-month periods. CSFOs are issued a complete 'Field Officer Information Update Form' to complete six weeks in advance of when the rosters are issued. The form asks CSFOs to note the days of the week on which they are available and unavailable for work, what locations they are able to work, and any other 'availability information' the officer wishes to disclose. The form does not require CSFOs to provide a reason for their unavailability. Officers are also required to sign and date the form before returning it.
CSFOs can change their availability by notifying the Metro Operational Support Office without any need for manager approval. Following that notification, the Metro Operational Support Office will update the roster and will seek to fill any vacant shifts arising from any new information about the availability of CSFOs. If the office is unable to fill any vacant shifts arising from either the new information or the overall availability of the pool of CSFOs, it will contact all CSFOs to ascertain whether they are interested in working the shift. If a CSFO accepts one of these shifts, they will attract an overtime payment and will require management approval. If no CSFOs are available to work the shift, the shift may be cancelled.
There is no binding guarantee of any hours of work to any CSFO. The amount of work available for CSFOs to perform is connected to the volume and frequency of work arising from the sentencing decisions of the judiciary.
Mr Jackson had been rostered across all days of the week and through four different locations in the Sydney Metro, Metro East region. His available locations fluctuated throughout his employment. For example, on 10 May 2024, Mr Jackson removed Bankstown and Fairfield as available locations for the roster period from 5 July 2024 to 10 October 2024. Then, on 8 July 2024, Mr Jackson emailed the Metro Operational Support Office to advise that he was available to work in Bankstown, after initially marking himself as unavailable. He subsequently removed Bankstown from his available locations for the next roster period, before including it again for the period thereafter.
Mr Jackson asserts that his base office location is Campbelltown and that he reports to a regular line manager. CSNSW rejects that assertion, submitting that Field Officers do not have a normal location or a base location.
In oral evidence, Mr Jackson accepted that the ability to nominate the days and locations that he was willing to accept work was a matter of his own choice, and that he was able to exercise this choice without repercussions from CSNSW. This accords with the evidence from the CSNSW that the decision to nominate available days or locations is entirely up to the CSFO.

[80]

Similarly, the allocation of work to Mr Jackson cannot be characterised as lacking a pattern or arrangement and reflects its systematic availability. Although there was evidence that Mr Jackson worked some ad-hoc shifts, the majority of his shifts worked were planned in advance through three-monthly rosters. This required Mr Jackson and other CSFOs to provide their availability six weeks in advance of the roster being issued. The existence of a roster is not sufficient of itself to establish a systematic allocation of work.[24] However, the capacity for CSNSW to roster CSFOs up to three months in advance indicates that the workflow is predictable and consistent.
The respondent points to the flexibility in the arrangement as evidence that the work was irregular and intermittent. It particularly relies on the ability of CSFOs to nominate available days of the week and locations, the ability to take 'leave' or have longer periods of unavailability without approval and the fact that both CSFOs and CSNSW were able to, and did, cancel shifts on short notice.
I accept that some aspects of Mr Jackson's work arrangements manifest a degree of flexibility, such as his ability to nominate his availability for work. However, I do not consider the mere existence of flexible work arrangements to be fatal to a finding that work was regular and systematic and was not "irregular", "intermittent", "urgent", "short-term", or otherwise ad hoc.[25]
In addition, in my view the respondent's case overstates the degree of flexibility in Mr Jackson's employment relationship. While CSFOs had the freedom to nominate their availability six weeks from the creation of their rosters, Mr Zouhair Abedine, the Acting Director of Metro West, conceded that there was an expectation that CSFOs would nominate at least one to two days a fortnight of availability. Further, in practice there was limited capacity for CSFOs to reject shifts after a roster was issued. The SOP provides that CSFOs can cancel a shift up to two hours prior to its commencement, but it also stipulates an expectation that they are "required" to attend work on all rostered days.
Such an expectation was echoed by Mr Abedine, who confirmed that CSFOs were told that they should not cancel work on the day of a shift, and that they would be expected to provide a reason in "good faith" if this were to occur. He also indicated that there would be no repercussions for a CSFO who cancelled on the day of a rostered shift, but that this was conditional on their absence being a one-off event. This evidence lends weight to the proposition that, in practice, there was an expectation that CSFOs generally would work their rostered shifts.
Similarly, there was little evidence that CSNSW withdrew rostered shifts, whether in advance or at short notice. CSNSW cancelled work at Liverpool from 11 July 2024 to 18 July 2024 due to an unroadworthy bus, which resulted in Mr Jackson's rostered shifts being cancelled in advance. It was also accepted that shifts could be cancelled due to inclement weather or due to an insufficient number of offenders to supervise. However, there was no evidence regarding the frequency with which shifts were, in fact, cancelled by CSNSW. Mr Jackson's evidence, which I accept, was that in his time working as a CSFO he had never been told that a shift was cancelled on the day, and that there were only approximately three occasions on which a shift was cancelled due to inclement weather.
On the evidence, the only other occasion that CSNSW withdrew rostered work was during the two COVID-19 shutdowns.
Mr Jackson has been continuously employed with CSNSW for approximately 4 years and 11 months, or about 59 months. He was rostered to work on 45 of those months and averaged approximately 3.5 shifts per week from 2019 to 2024. The respondent disputes the veracity of the roster information due to the gaps in data and discrepancies between the rostered and actual shifts performed by Mr Jackson.
However, the parties agreed that Mr Jackson's actual working hours, shifts, and work locations were as set out at [113 ] above. This record indicates a regular pattern of employment. Although there are fluctuations in the number of shifts performed each year (eg. Mr Jackson worked 89 shifts in 2020 and then 171 in 2021 before declining to 73 in 2022), he appears to have worked throughout each year and has maintained an average of between 2.7 and 3.8 shifts per week.
During the COVID-19 shut down in 2021, Mr Jackson worked his highest total number of shifts (171), indicating that he was consistently performing alternative duties even during this period. Similarly, during the period from 14 May 2022 to 28 June 2023, when Mr Jackson was on workers compensation, the number of shifts declined. However, he appears to have performed modified duties during this time, or alternatively, to have worked consistently prior to and after being on workers compensation.
Mr Jackson's provision of unavailable dates reflects this regular pattern. Excluding his time on workers compensation, Mr Jackson nominated an average of 19.25 days per year on which he was unavailable across 2021 to 2024.
I am satisfied on the evidence that both Mr Jackson and CSNSW had the expectation that, if Mr Jackson provided availability for a three-month roster, he would be allocated work, the shift would proceed, and Mr Jackson would perform that work.
Having regard to all these factors, I accept the PSA's contention that this is not a situation in which Mr Jackson is being called in to fill in cases of unexpected absences nor was he employed sporadically as and when required by the employer. Rather, he is filling a role and performing work the availability of which is reasonably stable, predictable, and ongoing. CSNSW regularly offers work when suitable work is available and at times when it knows that Mr Jackson has generally made himself available. Work is offered to Mr Jackson which he accepts sufficiently often that his employment cannot be regarded as simply occasional or irregular. Further, the basis on which Mr Jackson is engaged to perform work can comfortably be described as systematic in the sense that it is in accordance with a system, method or plan.
Even if the statutory definition of casual employment depended on an absence of a "firm advance commitment" to ongoing employment − and not directly on the key indicators or manifestations of that absence (as I have found) − I am satisfied that Mr Jackson is not a casual employee in the relevant sense. An objective assessment of the manner in which his employment has turned out demonstrates that the parties' intention to create casual employment has not been put into practice or has not been maintained. The expectations of the parties in the ongoing availability and acceptance of work and the regular pattern of performing that work, which I have outlined above, objectively demonstrate the existence of a firm advance commitment to continuing and indefinite work, subject to rights of termination. The surrounding circumstances of Mr Jackson's employment demonstrate an intention that is contrary to the "casual" label that the parties had attached to their relationship.

[81]

The primary declaration sought by the PSA is that Mr Jackson "is and at all times since 22 July 2019, has been engaged as a Public Sector non-executive employee in ongoing employment pursuant to s 43(1)(a) of the GSE Act". I am prepared to grant this aspect of the relief sought (albeit by reference to the correct statutory body, namely, the "Public Service") for two reasons.
First, I have found that Mr Jackson is not employed as a casual employee within the meaning of s 43(4) of the GSE Act.
Second, I am further satisfied that Mr Jackson is instead an ongoing employee within the meaning of s 43(2) in that he is engaged in "employment that continues until the employee resigns or his or her employment is terminated". There is no dispute that, from 2019, Mr Jackson has been and remains employed on one continuing contract of employment. It is also accepted that according to the terms of this contract Mr Jackson's employment may be terminated at the agency head's discretion where "work is no longer available", "funds are no longer available", or "performance of duties is unsatisfactory". In light of my findings as to the nature and availability of the work performance by Mr Jackson, the termination provisions of his employment contract are consistent with his employment continuing "until he resigns or his contract is terminated" for the purposes of s 43(2).
I am not, however, prepared to grant declarations as to the specific entitlements that may flow from Mr Jackson's proper characterisation as an ongoing employee under the GSE Act. This is principally because the ramifications of this characterisation for Mr Jackson's employment entitlements, including his leave entitlements, were not fully argued before me. The respondent asserted that, if he is properly characterised as an ongoing employee, Mr Jackson is likely to be entitled to annual leave but not necessarily to any extended leave. Further, the extent to which Mr Jackson's entitlement to annual leave might be affected by his receipt of payments of a casual loading, including by way of claims that any component of his remuneration should be "set off" as against his leave entitlements, was not explored in any depth by the parties. The respondent merely submitted that Mr Jackson should not be "enriched by what would amount to a double entitlement for annual leave"; and counsel for the PSA asserted that the issue of "set off" could not be fully argued in this proceeding. In these circumstances, I am not prepared to grant the declarations sought by the PSA concerning Mr Jackson's specific leave entitlements.
There is no doubt that Mr Jackson's employment entitlements will need to be reviewed as a consequence of the declaration that I grant. As counsel for the PSA submitted, any need to alter Mr Jackson's employment arrangements is a consequence of the mischaracterisation of his employment.
Finally, I note that there is a formal application for costs in the relief sought by the PSA in its motion filed on 3 September 2024 (Order 2). However, this application was not pursued in any written or oral submissions put before the Court. If any application for costs is to be pressed, the parties should inform my chambers within 14 days of the date of the publication of this judgment.
Accordingly, I make the following declaration and order:

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2026] NSWIC 10

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Judgment (104 paragraphs)

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