The contract promised no set hours - but the Commission looked at what really happened
A casual painting teacher at TAFE was not really casual at all, the Fair Work Commission has found - despite a contract that guaranteed him no set hours.
The decision, handed down on September 2, 2026, is a practical signal for HR teams that rely on casual contracts to keep staffing flexible. It shows how little the label on the contract matters when the day-to-day reality looks permanent.
The employee is a trade-qualified painter who began casual teaching for the Technical and Further Education Commission on April 1, 2022. His hours grew steadily - from an average of about 5.65 per week in 2023 to just over 12 per week in 2025, spread across three campuses.
On December 14, 2025, he formally notified TAFE in writing that he no longer met the definition of a casual employee, using the process set out in the Fair Work Act. TAFE rejected the notification eight days later. When conciliation failed to resolve the dispute, he asked the Commission to step in and decide.
The Commission found that the employee did not meet the definition of a casual employee when he gave notice.
His contract was not ambiguous. It stated plainly that "there is no guarantee regarding the days or hours that you may be employed." But the Commission looked past the paperwork to what it described as the "real substance, practical reality, and true nature" of the arrangement - the test required under the Act.
What carried that assessment: the employee taught set classes at fixed times each semester. In the second half of 2025, a head teacher's evidence showed he ran a locked-in Monday and Wednesday timetable at a designated campus. Those classes could not realistically be pulled mid-semester without disrupting students, and the employee could not realistically refuse them.
Beyond the timetable, the Commission noted that painting and decorating teaching was in ongoing demand at the relevant campuses, a permanent teacher was transitioning toward retirement, and full-time and part-time staff were doing the same type of work. The employee had taught across six consecutive semesters.
The Act contains a timing rule that HR teams should note. Under the legislation, the Commission must disregard anything that happened after the date the employee gave written notification. The employee was unhappy that his hours had been cut in 2026, but none of that evidence counted. What mattered was the shape of the relationship on the day he gave notice.
The outcome is not settled. The Commission expressed a provisional view that it would be fair and reasonable to treat the employee as part-time with a guaranteed average of 10 ordinary hours per week - below his 2025 average, because his earlier years were lighter. But no order has been made. The parties were directed to confer and attempt to reach agreement, and TAFE was to report back by September 16, 2026. A further hearing may follow if they cannot agree.
The decision also carried a second message aimed at self-represented parties. The employee relied on AI-assisted submissions, and the Commission flagged what it called a "growing trend" of parties filing extensive AI-generated material without filing evidence on the critical factual issues. Cases in the Commission's jurisdiction turn on their specific facts and circumstances, it noted, and the evidence needs to come from witnesses who can attend a hearing and answer questions.
