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[41]
[2025] FWCFB 288
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-12-19
Commissioner P
Original judgment source is linked above.
(1) Should a standard model for part-time employment (in place of the variety of provisions which currently exist) be established?
(2) How should part-time employment be defined in modern awards?
(3) How should part-time employment be distinguished from casual employment?
(4) How should part-time employees and their employers establish their agreed hours? How should these agreed hours be capable of variation?
(5) Should part-time employment provisions have prescribed daily and/or weekly minimum or maximum hours of work and, if so, what should those minima or maxima be?
(6) Under what circumstances should part-time employees be able to or be required to work additional hours? How will additional hours be authorised and recorded? In what circumstances should overtime penalties be payable?
(7) Should other aspects of part-time employment be considered?
[3] A total of 29 submissions, including two supplementary submissions in response to the September Statement, were received with respect to the provisional list of issues. We have now considered the parties' submissions. We confirm no alterations will be made to issues (1), (2), (4) and (5). As for the remaining issues, we outline our considerations below.
[4] Parties responding to issue (3) submitted that the Review should either exclude casual employment or that it should be considered only on a limited basis. We note that Australian Business Industrial and the NSW Business Chamber (collectively, ABI) proposed to rephrase the issue to:
How should part-time employment be distinguished from and interact with casual employment?
[5] The Australian Industry Group (Ai Group) referred to its previous submissions filed in the Modern Awards Review 2023-24, where it contended that amendments to the then proposed definition of casual employee in the FW Act may warrant reassessment of the regulation of part-time employment in modern awards. In its submissions for this Review, the Ai Group submitted that the following additional question should be included within the scope of this Review:
Should award terms concerning part-time employment be varied in light of amendments made to section 15A and Division 4A of Part 2-2 of the Fair Work Act 2009 by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024?
[6] We consider that it is appropriate to modify the expression of issue (3) in the way proposed by ABI. We consider that, stated in this way, issue (3) will accommodate consideration of the Ai Group's proposed question without any need to include it as a separate question.
[8] The National Outside School Hours Services Alliance (NOSHSA) suggested adding the following to issue (6):
In what circumstances should part time employees be able to accrue time off in lieu (TOIL)?
[9] The ARA's proposals K and M may be considered under issues (4) or (6) as currently worded. We consider that it is appropriate to add the NOSHSA's proposed additional question to issue (6), since it relates to the issue of additional hours/overtime.
[10] The ARA's proposals L, H and I raise issues that are separate to issue (6). We will add an additional issue to accommodate their consideration, namely: What provisions concerning rostering and meal breaks should apply to part-time employees?
[11] Several parties made submissions on the inclusion and/or alleged exclusion of certain modern awards from the scope of this Review. We are not persuaded to alter the current list of 11 awards. As outlined during the initial hearing on 3 September 2025, because the Review will involve the consideration of broad issues of principle relating to part-time employment, the list of awards to be considered in the Review is not intended to restrict or preclude any party or person from making submissions even if they are not covered or otherwise affected by the subject awards.
[12] We also confirm that if we conclude in the Review that a model part-time award term should be established, we will undertake a process to hear parties on whether such a term should be extended to awards that are not the subject of the Review, including as to whether any industry- or occupational-specific variations to any such model term are appropriate.
[13] As to other aspects of part-time employment that may be considered in this review, parties identified a broad range of issues. We consider these submissions below.
[14] The Australian Council of Trade Unions (ACTU) proposed that the following additional issues be considered:
How should gender disparities in part-time provisions in awards be overcome?
What should be the specific entitlement to predictable and stable rosters?
What should be the mechanism requiring employers to offer full-time employment or increased hours?
What is the connection between full-time and part-time employment?
[15] The Australian Municipal, Administrative, Clerical and Services Union also submitted that the second and third of the ACTU's proposed issues should be included in the scope of the review.
[16] The Ai Group proposed that the following additional issues be considered:
Should award terms concerning part-time employment be varied in light of amendments made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Closing Loopholes No. 2 Act) to section 15A and Division 4A of Part 2-2 of the Fair Work Act 2009 (Act)?
If so, how should such terms be varied?
[17] The Australian Manufacturing Workers' Union (AMWU) proposed that part-time employees under training arrangements (such as school-based apprentices) should also be considered in the review.
[18] The NRA proposed the review should consider the following:
removing the requirement that meal breaks be agreed with a part-time employee at the time of engagement and the requirement that breaks be included in rosters in advance;
clarification of the application of overtime to part-time employment;
clarification of the application of constraints on rostering arrangements to full-time employees; and
limiting the application of particular constraints on rostering arrangements for employees regularly working Sundays to full-time employees.
[19] In their supplementary submissions, ABI and the Australian Childcare Alliance submitted that the review should also consider the following question:
What is the nature of the relationship between part-time and casual employment, and how should part-time employment interact with casual employment?
[20] We consider that the scope of the Review outlined in the July Statement is sufficiently broad to capture the additional issues raised by the parties and we have already effectively dealt with a number of them. The ACTU's proposed question concerning gender disparities is not a discrete issue but rather, we consider, a general matter of policy underlying all the issues we have identified, and will arise for consideration in that context. The issue raised by the AMWU concerning part-time employees under training arrangements, including school-based apprentices, is not appropriate for this Review because it is a narrow and specialist issue rather than one of broad principle.
Final list of issues for consideration in Review
[21] As outlined above, our final list of issues for consideration is as follows:
(1) Should a standard model for part-time employment (in place of the variety of provisions which currently exist) be established?
(2) How should part-time employment be defined in modern awards?
(3) How should part-time employment be distinguished from and interact with casual employment?
(4) How should part-time employees and their employers establish their agreed hours? How should these agreed hours be capable of variation?
(5) Should part-time employment provisions have prescribed daily and/or weekly minimum or maximum hours of work and, if so, what should those minima or maxima be?
(6) Under what circumstances should part-time employees be able to or be required to work additional hours? In what circumstances should overtime penalties be payable? How will additional hours be authorised and recorded? In what circumstances should part-time employees be able to accrue time off in lieu of overtime (TOIL)?
(7) What provisions concerning rostering and meal breaks should apply to part-time employees?
[23] To ascertain whether consensus on the scope of research proposal 4 can be reached, Commissioner Fox will convene a conference at 10:00 am on Monday, 2 February 2026. Interested parties are invited to make written submissions ahead of the conference by no later than 4:00 pm (AEDT) on Tuesday, 27 January 2026. A Notice of Listing is published with this Statement.
[24] We do not consider that it is appropriate to invite submissions or convene conferences in this matter until the research program is completed. The matter will be listed for further directions in due course.
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