[2021] FWCFB 4928

FAIR WORK COMMISSION

STATEMENT

Fair Work 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)

Various industries
VICE PRESIDENT HATCHER DEPUTY PRESIDENT EASTON COMMISSIONER BISSETT	SYDNEY, 11 AUGUST 2021

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

1. Background and proceedings to date

[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 and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act (Casual Terms Review or Review).

[3] The Commission has commenced the Casual Terms Review and it is being conducted in 2 stages. In the first stage a five-member Full Bench considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of 6 modern awards (Stage 1 awards).

[4] Interested parties were provided with the opportunity to file submissions and to respond to particular questions posed in a Discussion Paper 1 published by the Commission and a hearing was held on 24 June 2021.

[5] The five-member Full Bench issued a decision 2 in relation to Stage 1 on 16 July 2021 (July 2021 decision). The decision sets out the statutory framework for the review and provides a detailed discussion of ‘relevant’ terms in the Stage 1 priority awards and how they interact with the new definitions under the Act as amended.

[6] 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. Those groups have most recently been detailed in a statement 3 issued on 3 August 2021 by this Full Bench (August 2021 statement).

[7] In the August 2021 statement we reviewed the July 2021 decision and adopted the reasoning of the five-member Full Bench in relation to those ‘relevant terms’ that can be subject of the Review. We expressed a number of provisional views in relation to the Group 1 awards as set out in Attachment B to that Statement. We also dealt with a number of Group 1 award-specific issues, as well as general issues relating to casual conversion clauses and the categorisation of casual definition clauses which affect multiple awards.

2. Review of Group 2 awards

[8] The awards in Group 2 are as follows:

• Alpine Resorts Award 2020;

• Aluminium Industry Award 2020;

• Ambulance and Patient Transport Industry Award 2020;

• Animal Care and Veterinary Services Award 2020;

• Aquaculture Industry Award 2020;

• Asphalt Industry Award 2020;

• Black Coal Mining Industry Award 2010;

• Cement, Lime and Quarrying Award 2020;

• Cleaning Services Award 2020;

• Concrete Products Award 2020;

• Corrections and Detention (Private Sector) Award 2020;

• Cotton Ginning Award 2020;

• Gas Industry Award 2020;

• Graphic Arts, Printing and Publishing Award 2020;

• Health Professionals and Support Services Award 2020;

• Horse and Greyhound Training Award 2020;

• Hydrocarbons Industry (Upstream) Award 2020;

• Marine Tourism and Charter Vessels Award 2020;

• Maritime Offshore Oil and Gas Award 2020;

• Medical Practitioners Award 2020;

• Mining Industry Award 2020;

• Nurses Award 2010;

• Oil Refining and Manufacturing Award 2020;

• Passenger Vehicle Transportation Award 2020;

• Pharmaceutical Industry Award 2020;

• Pharmacy Industry Award 2020;

• Poultry Processing Award 2020;

• Premixed Concrete Award 2020;

• Professional Diving Industry (Industrial) Award 2020;

• Professional Diving Industry (Recreational) Award 2020;

• Racing Industry Ground Maintenance Award 2020;

• Rail Industry Award 2020;

• Road Transport (Long Distance Operations) Award 2020;

• Road Transport and Distribution Award 2020;

• Salt Industry Award 2020;

• Seafood Processing Award 2020;

• Security Services Industry Award 2020;

• Stevedoring Industry Award 2020;

• Storage Services and Wholesale Award 2020;

• Textile, Clothing, Footwear and Associated Industries Award 2020;

• Timber Industry Award 2020;

• Transport (Cash in Transit) Award 2020;

• Vehicle Repair, Services and Retail Award 2020;

• Waste Management Award 2020; and

• Wool Storage, Sampling and Testing Award 2020.

[9] Taking into account the reasoning and conclusions in the July 2021 decision, we have formed provisional views in relation to the Group 2 awards. These are set out in Attachment A to this Statement.

[10] There are a number of specific issues contained within the Group 2 awards which we will deal with below.

3. Casual conversion clauses

[11] A number of awards in Group 2 contain casual conversion clauses which differ and pre-date the model conversion clause. We will discuss each below in turn.

3.1 Alpine Resorts Award 2020

[12] The Alpine Resorts Award 2020 (Alpine Award) does not contain the model conversion clause. Instead, it contains the following provisions which have been included in the award since it commenced operation on 1 January 2010:

“11.3 Casual conversion

(a) A casual employee, other than an irregular casual employee as defined in clause 11.4, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months will thereafter have the right to elect to have their contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.

(b) Every employer of such an employee will give the employee notice in writing of the provisions of clause 11.3 within four weeks of the employee having attained such period of 12 months. The employee retains their right of election under clause 11.3 if the employer fails to comply with clause 11.3(b).

(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

(d) Any casual employee who has a right to elect under clause 11.3(a), upon receiving notice under clause 11.3(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer will consent to or refuse the election but must not unreasonably so refuse. Any dispute about a refusal of an election to convert a contract of employment will be dealt with as far as practicable with expedition through the dispute settlement procedure.

(e) Once a casual employee has elected to become and has been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.3(d), the employer and employee in accordance with clause 11.3, and subject to clause 11.3(d), will discuss and agree upon:

• which form of employment the employee will convert to, that is, full-time or part-time; and

• if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10.2.

Following such agreement being reached, the employee will convert to full-time or part-time employment.

(g) Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee.

(h) Where, in accordance with clause 11.3(d) an employer refuses an election to convert, the reasons for doing so will be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(i) Any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment will be dealt with as far as practicable with expedition through the dispute settlement procedure.

An employee must not be engaged and re-engaged to avoid any obligation under this award

11.4 Irregular casual

An irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis. The provisions of clause 11.3 do not apply to irregular casual employees.”

[13] In the July 2021 decision, the Full Bench considered a similar provision in the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). In relation to that award, the Full Bench found that the award clause was less beneficial than the residual right to conversion now provided for in the National Employment Standards (NES) and that the clause conflicted with the NES residual right to convert.

[14] Having come to these conclusions, the Full Bench considered whether proposals advanced by a number of unions to modify the clause to supplement the casual conversion NES would make the Manufacturing Award consistent or operate effectively with the Act as amended. After considering the historical context, the Full Bench ultimately found that amending the clause as proposed would not meet the modern awards objective and determined to delete the clause from the Manufacturing Award and replace it with a reference to the NES casual conversion entitlements.

[15] The abovementioned clause in the Alpine Award is similar in type to the Manufacturing Award clause although it has some notable differences. Clauses 11.3(a), (b), (c), (d), (e), (f), (g), (h) and (i) of the Alpine Award are similar, if not identical, to the equivalent provisions in the Manufacturing Award (save for certain differences which are noted below). 4

[16] Clause 11.5(a) of the Manufacturing Award is more beneficial than the NES residual right to casual conversion to the extent that it allows a request for conversion to be made after only 6 months’ casual employment. In contrast, clause 11.3(a) of the Alpine Award allows a request for conversion to be made after 12 months’ casual employment. Unlike the Manufacturing Award the Alpine Award is not more generous in its qualifying period than the NES entitlement.

[17] Another point of difference is that the Manufacturing Award provides a facilitative mechanism which allows the requirement for 6 months’ regular casual employment to be extended to 12 months by majority agreement. 5 No such provision appears in the Alpine Award. The Full Bench in the July 2021 decision found this provision to be inconsistent with the NES residual right to convert.6

[18] Further, clause 11.3(d) of the Alpine Award is substantially similar to clause 11.5(d) of the Manufacturing Award, except that clause 11.3(d) contains the following additional text:

“Any dispute about a refusal of an election to convert a contract of employment will be dealt with as far as practicable with expedition through the dispute settlement procedure.”

[19] Additionally, clause 11.3(i) provides that ‘any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment will be dealt with as far as practicable with expedition through the dispute settlement procedure’. This provision does not appear in the Manufacturing Award.

[20] For the reason that the qualifying provision in this award is less beneficial than the Manufacturing Award provision and for the same reasons as stated in respect of the Manufacturing Award in the July 2021 decision, our provisional views are:

(1) The Alpine Award casual conversion clauses (11.3 and 11.4) are less beneficial overall than the residual right to casual conversion under the Act.

(2) Difficulty or uncertainty arises in relation to these clauses because of the significantly different prescriptions in the award and the Act about the same subject matter.

(3) The terms should be deleted and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.2 Black Coal Mining Industry Award 2010

[21] The Black Coal Mining Industry Award 2010 (Black Coal Award) does not contain a casual conversion clause. The Black Coal Award provides for casual employment only in respect of the classifications set out in Schedule B—Staff Employees (see clause 10.1(c)). The award makes no provision for casual employment in respect of Schedule A – Production and Engineering Employees.

[22] The NES casual conversion provisions now apply in respect of casual employees in Schedule B staff classifications under the Black Coal Award. There is no relevant provision in connection with casual conversion in the award requiring consideration under clause 48 of Schedule 1. However, our provisional view is that the Black Coal Award should, in relation to casual staff employees, be varied pursuant to s. 157(1) of the Act by adding a new clause 10.5 which refers to the NES casual conversion provisions and contains a note about casual conversion disputes being dealt with under the dispute resolution clause in the award. This will assist users of the award and achieve consistency across modern awards. Our provisional view in this respect reflects that expressed at [45] in the August 2021 statement concerning the Mannequins and Models Award 2020, which likewise does not currently contain a casual conversion provision.

3.3 Cement, Lime and Quarrying Award 2020

[23] The Cement, Lime and Quarrying Award 2020 (Cement Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.5 Casual conversion to full-time or part-time employment

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.5 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 11.5 if the employer fails to comply with clause 11.5(b).

(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.

(d) Any casual employee who has a right to elect under clause 11.5(a), on receiving notice under clause 11.5(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.

(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.5(d), the employer and employee must, subject to clause 11.5(d), discuss and agree on:

(i) which form of employment the employee will convert to, being full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10—Part-time employees.

(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.

(h) Following such agreement being reached, the employee converts to full-time or part-time employment.

(i) Where, in accordance with clause 11.5(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 11.5(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause 11.5(a).

(k) For the purposes of clause 11.5, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”

[24] The Cement Award casual conversion clause is in substantially the same form as the Manufacturing Award. We adopt the reasoning from the July 2021 Decision in relation to the Manufacturing Award and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.4 Concrete Products Award 2020

[25] The Concrete Products Award 2020 (Concrete Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.5 Casual conversion

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.5 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 11.5 if the employer fails to comply with clause 11.5(b).

(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.

(d) Any casual employee who has a right to elect under clause 11.5(a), on receiving notice under clause 11.5(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.

(e) Once a casual employee has elected to become and has been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.5(a), the employer and employee must, subject to clause 11.5(d), discuss and agree on:

(i) which form of employment the employee will convert to, being full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clauses 10.1 and 10.2.

(h) Following such agreement being reached, the employee converts to full-time or part-time employment.

(i) Where, in accordance with clause 11.5(d), an employer refuses an election to convert, the reasons for doing so must be fully stated and discussed with the employee concerned and a genuine attempt made to reach agreement.

(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 11.5(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 11.5(a).

(k) For the purposes of clause 11.5, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”

[26] The Concrete Award casual conversion clause is in substantially the same form as the Manufacturing Award, except that it does not contain an equivalent clause 11.6 of the Manufacturing Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.5 Cotton Ginning Award 2020

[27] The Cotton Ginning Award 2020 (Cotton Ginning Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.5 Casual conversion

(a) A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this award during a calendar period of 12 months will have the right to elect to have their ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause.

(b) Every employer of a casual employee who seeks to convert to full-time or part-time employment will give the employee notice in writing of the provisions of this subclause within four weeks of the employee having attained the period of 12 months. However, the employee retains their right of election under this subclause if the employer fails to comply with this notice requirement.

(c) Any casual employee who has a right to elect under clause 11.5(a) upon receiving notice under clause 11.5(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they seek to elect to convert their ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer must consent to or refuse the election, but must not unreasonably so refuse. Where an employer refuses an election to convert, the reasons for doing so must be fully stated and discussed with the employee concerned, and a genuine attempt must be made to reach agreement. Any dispute about a refusal of an election to convert an ongoing contract of employment must be dealt with as far as practicable and with expedition through the disputes settlement procedure.

(d) Any casual employee who does not, within four weeks of receiving written notice from the employer, elect to convert their ongoing contract of employment to full-time employment or part-time employment will be considered to have elected against any such conversion.

(e) Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.5(c), the employer and employee must discuss and agree upon:

(i) whether the employee will convert to full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked are to be consistent with any other part-time employment provisions of this award;

provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.

(g) Following an agreement being reached, the employee must convert to full-time or part-time employment. If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it must be dealt with as far as practicable and with expedition through the disputes settlement procedure.

(h) An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under this subclause.”

[28] The abovementioned clause in the Cotton Ginning Award is similar in type to the Manufacturing Award clause although it has some notable differences.

[29] Clause 11.5(a) of the Manufacturing Award is more beneficial than the NES residual right to casual conversion to the extent that it allows a request for conversion to be made after only 6 months’ casual employment. In contrast, clause 11.5(a) of the Cotton Ginning Award allows a request for conversion to be made after 12 months’ casual employment. Unlike the Manufacturing Award the Cotton Ginning Award is not more generous in its qualifying period than the NES residual right to casual conversion.

[30] Another point of difference is that the Manufacturing Award provides a facilitative mechanism which allows the requirement for 6 months’ regular casual employment to be extended to 12 months by majority agreement. 7 No such provision appears in the Cotton Ginning Award. The Full Bench in the July 2021 decision found this provision to conflict with the NES residual right to convert.8

[31] Similar to the Alpine Award, clause 11.5(c) of the Cotton Ginning Award is substantially similar to clause 11.5(d) of the Manufacturing Award, except that clause 11.5(c) contains the following additional text not contained in the Manufacturing Award clause:

“Any dispute about a refusal of an election to convert an ongoing contract of employment must be dealt with as far as practicable and with expedition through the disputes settlement procedure.”

[32] Additionally, clause 11.5(g) provides that ‘If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it must be dealt with as far as practicable and with expedition through the disputes settlement procedure’. This provision does not appear in the Manufacturing Award.

[33] The Cotton Ginning Award casual conversion clause is in substantially the same form as the Alpine Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.6 Graphic Arts, Printing and Publishing Award 2020

[34] The Graphic Arts, Printing and Publishing Award 2020 (Graphic Arts Award) does not contain the model conversion clause. Instead, it contains the following provisions which have been included in the award since it commenced operation on 1 January 2010:

“11.6 Casual conversion to full-time or part-time employment

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the 6 months.

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.6 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 11.6 if the employer fails to comply with clause 11.6(b).

(d) Any casual employee who has a right to elect under clause 11.6(a), on receiving notice under clause 11.6(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.

(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.6(d), the employer and employee must, subject to clause 11.6(d), discuss and agree on:

(i) which form of employment the employee will convert to, being full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10—Part-time employees.

(h) Following such agreement being reached, the employee converts to full-time or part-time employment.

(i) Where, in accordance with clause 11.6(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(j) For the purposes of clause 11.6, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.

11.7 An employee must not be engaged and re-engaged to avoid any obligation under this award.”

[35] The Graphic Arts Award casual conversion clauses are in substantially the same form as the Manufacturing Award, except that it does not contain a facilitative mechanism equivalent to clause 11.5(j) of the Manufacturing Award.

[36] Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.7 Horse and Greyhound Training Award 2020

[37] The Horse and Greyhound Training Award 2020 (Horse and Greyhound Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“10.7 Casual conversion to full-time or part-time employment

(a) A casual employee who has been employed on a regular pattern of hours in 12 consecutive weeks must after that time have the right to elect to be engaged as a permanent employee if the employment on a regular pattern of hours continues into the next consecutive week.

(b) Any eligible employee that elects to convert must thereafter be treated for all purposes of this award as a full-time or part-time employee, as the case may be.

(c) An employee must not be engaged or re-engaged as a casual employee under clause 10 to avoid any obligation under this award.”

[38] The Horse and Greyhound Award casual conversion clause (cl.10.7) is significantly more beneficial to casual employees than the NES residual right to casual conversion in that:

• it allows conversion to permanent employment after only 12 consecutive weeks of casual employment on a regular pattern of work, rather than after the 12 months of total service and 6 months of regular employment required under the NES;

• the regularity of employment need only continue in the next consecutive week; and

• the clause confers on the employee a right to elect for conversion to permanent employment, and there is no capacity for the employer to refuse the election.

[39] Clause 10.7 is clearly a relevant term. On one view, it may lead to inconsistency and/or interaction difficulty with the Act, in that its sphere of operation may overlap with the NES residual right to request casual conversion (because an employee may not achieve a 12-week regular pattern of hours until after 12 months’ total employment). Alternatively, it might be said that because clause 10.7 provides for the employee to have a genuine right to elect for permanent employment, without the capacity for the employer to refuse, it is entirely different in nature than the right to request casual conversion provided for in the NES. Additionally, it might be a simple matter to modify clause 10.7 to ensure it never overlaps with the NES right to request casual conversion by providing that it only operates within the first 12 months of casual employment.

[40] We do not propose to express any provisional view about this issue at this stage. We will simply invite interested parties to file submissions addressing the matter.

3.8 Premixed Concrete Award 2020

[41] The Premixed Concrete Award 2020 (Premixed Concrete Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.4 Casual conversion

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.

(b) Where the employee requests to have their employment converted, the employer will advise the employee in writing, within four weeks of the request, as to whether the employer can consent to the request.

(c) Where such conversion occurs the details will be recorded in writing.

(d) If a casual employee has elected to become and has been converted to a full-time or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(e) For the purposes of clause 11.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”

[42] The Premixed Concrete Award conversion clause is similar in type to the Manufacturing Award clause although it has some notable differences.

[43] Clauses 11.4(a),(b), (d) and (e) of the Premixed Concrete Award are similar to those at clauses 11.5(a), (d), (e) and 11.6 of the Manufacturing Award, although the Premixed Concrete Award at clause 11.4(a) allows election after 12 months, which is comparable to the residual right contained in the NES provision.

[44] Clause 11.4 appears less beneficial than the NES residual right because it provides for broader and less defined grounds for the employer to refuse an election under clause 11.4(b) of the Premixed Concrete Award. In contrast, under the Act an employer must give an employee a written response to their request for casual conversion, the details of the reasons must be included in the response, the refusal must follow (not precede) consultation with the employee, and the reasonable grounds for refusal must be based on facts that are known, or reasonably foreseeable, at the time of refusing the request. The Act also provides examples of ‘reasonable grounds of refusal’.

[45] Our provisional views, for the above reasons and based on the reasoning and conclusions in the July 2021 decision, are:

(1) The Premixed Concrete Award clause is less beneficial overall than the residual right to casual conversion under the Act.

(2) Difficulty or uncertainty arises in relation to this clause because of the significantly different prescriptions in the award and the Act about the same subject matter.

(3) Clause 11.4 should be deleted from the Premixed Concrete Award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.9 Road Transport and Distribution Award 2020

[46] The Road Transport and Distribution Award 2020 (Road Transport and Distribution Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.6 Conversion of casual employment

(a) A casual employee, other than an irregular casual employee who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months will thereafter have the right to elect to have their contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.

(b) An employer of such an employee must give the employee notice in writing of the provisions of this clause within four weeks of the employee having attained such period of 12 months.

(c) The employee retains the right of election under this clause even if the employer fails to comply with clause 11.6(b).

(d) A casual employee who does not, within four weeks of receiving written notice, elect to convert their contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

(e) Any casual employee who has the right to elect under clause 11.6(a), upon receiving notice under clause 11.6(b), or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must either consent to or refuse the election but must not unreasonably so refuse.

(f) A casual employee who has elected to be converted to a full-time employee or a part-time employee in accordance with clause 11.6(e) may only revert to casual employment by written agreement with the employer.

(g) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment, the employer and the employee, subject to clause 11.6(e), must discuss and agree upon:

(i) which form of employment the employee will convert to, that is, full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10.2.

(h) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to part-time employment, working the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee. Upon such agreement being reached, the employee will convert to full-time or part-time employment. Where, in accordance with clause 11.6(e) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(i) An irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”

[47] The Road Transport and Distribution Award casual conversion clause is in substantially the same form as the Alpine Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.10 Textile, Clothing, Footwear and Associated Industries Award 2020

[48] The Textile, Clothing, Footwear and Associated Industries Award 2020 (Textile Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.12 Casual conversion to full-time or part-time employment

The employer will take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce, in particular by ensuring that casual employees have an opportunity to elect to become full-time or part-time employees.

(a) A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this award during a calendar period of 6 months will thereafter have the right to elect to have their ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by clause 11.12.

(b) Every employer of such a casual employee must give the employee notice in writing of the provisions of clause 11.12 within 4 weeks of the employee having attained such period of 6 months. However, the employee retains their right of election under clause 11.12 if the employer fails to comply with this notice requirement.

(c) Any casual employee who has a right to elect upon receiving notice or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that the employee seeks to elect to convert their ongoing contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice from the employee, the employer must consent to or refuse the election, but will not unreasonably so refuse.

(d) Where an employer refuses an election to convert, the reasons for doing so must be fully stated and discussed with the employee concerned, and a genuine attempt will be made to reach agreement.

(e) Any casual employee who does not, within 4 weeks of receiving written notice from the employer, elect to convert their ongoing contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.

(f) Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(g) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment, the employer and employee will, in accordance with clause 11.12(g), and subject to clause 11.12(c), discuss and agree upon:

(i) whether the employee will convert to full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked consistent with any other part-time employment provisions of this award.

Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.

(h) Following an agreement being reached the employee will convert to full-time or part-time employment.

(i) An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under clause 11.12.”

[49] The Textile Award casual conversion clause is in substantially the same form as the Manufacturing Award. However, the Manufacturing Award provision contains no equivalent to the opening paragraph of clause 11.12 of the Textile Award. On one view, that opening paragraph is not simply a statement of the objective of the casual conversion provisions which follows because it arguably imposes a substantive obligation on employers to ‘take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce’, which is not confined to allowing for casual conversion.

[50] We are of the view that the casual conversion provisions of clause 11.12 (that is, paragraphs (a)-(i)) are less beneficial than the NES residual right because they provide for broader and less defined grounds for the employer to refuse an election under clause 11.12(c) and (d) of the Textile Award. In contrast, under the Act an employer must give an employee a written response to their request for casual conversion, the details of the reasons must be included in the response, the refusal must follow (not precede) consultation with the employee, and the reasonable grounds for refusal must be based on facts that are known, or reasonably foreseeable, at the time of refusing the request. The Act also provides examples of ‘reasonable grounds of refusal’. Additionally, the Textile Award clause only provides for a ‘one-off’ right to elect for conversion, which is less beneficial than the NES residual right, as that is a continuing one. Accordingly our provisional view is that paragraphs (a)-(i) of clause 11.12 should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

[51] Our provisional view does not extend to the opening paragraph of clause 11.12. It is clearly a relevant term but, if it is detached from the casual conversion provisions which follow so that it reads ‘The employer will take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce’, then on one view it neither gives rise to inconsistency with the Act nor causes any interaction difficulty. We do not propose to express any provisional view about this, and we will invite further submissions about the matter.

3.11 Transport (Cash in Transit) Award 2020

[52] The Transport (Cash in Transit) Award 2020 (Cash in Transit Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.7 Conversion of casual employment

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months will thereafter have the right to elect to have their contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.

(b) An employer of such an employee must give the employee notice in writing of the provisions of this clause within four weeks of the employee having completed such period of 12 months.

(c) The employee retains the right of election under this clause even if the employer fails to comply with clause 11.7(b).

(e) Any casual employee who has a right to elect under clause 11.7(a), upon receiving notice under clause 11.7(b) or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must either consent to or refuse the election but must not unreasonably so refuse.

(f) A casual employee who has elected to be converted to a full-time employee or a part-time employee may only revert to casual employment by written agreement with the employer.

(g) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.7(a), the employer and employee in accordance with clause 11.7(g), and subject to clause 11.7(c), must discuss and agree upon:

(i) which form of employment the employee will convert to, that is, full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked as set out in clause 10.

(i) Following such agreement being reached, the employee must convert to full-time or part-time employment.

(j) Where, in accordance with clause 11.7(e) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(k) An irregular casual employee is one who has been engaged to perform work on an occasional, non-systematic or irregular basis.”

[53] The Cash in Transit Award casual conversion clause is in substantially the same form as the Alpine Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.12 Vehicle Repair, Services and Retail Award 2020

[54] The Vehicle Repair, Services and Retail Award 2020 (Vehicle Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.6 Casual conversion to full-time or part-time employment

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.6 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 11.6(a) if the employer fails to comply with clause 11.6(b).

(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.

(i) which form of employment the employee will convert to, being full-time or part-time; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10—Part-time employees.

(h) Following such agreement being reached, the employee converts to full-time or part-time employment.

(j) Subject to agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 11.6(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 11.6(a).

(k) For the purposes of clause 11.6, an irregular casual employee is one who has been engaged to perform work on an occasional, non-systematic or irregular basis.”

[55] The Vehicle Award casual conversion clause is in substantially the same form as the Manufacturing Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

3.13 Waste Management Award 2020

[56] The Waste Management Award 2020 (Waste Management Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:

“11.9 Conversion of casual employment

(a) A casual employee who has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this award during a period of 12 months has the right to elect to have their contract of employment converted to full-time or part-time employment.

(b) The employer must give a casual employee notice in writing of the provisions of clause 11.9(a) within four weeks of the right to elect accruing.

(c) The employee retains their right of election under clause 11.9 even if the employer fails to comply with clause 11.9(b).

(d) A casual employee who does not, within four weeks of receiving written notice, elect to convert their contract of employment to full-time or part-time employment will be deemed to have elected not to convert.

(e) Any casual employee having rights under clause 11.9 upon receiving notice under clause 11.9(b), or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they elect to convert their contract of employment to full-time or part-time employment. Within four weeks of receiving such notice the employer must either consent to or refuse the election but must not unreasonably so refuse.

(f) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to part-time employment, working the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee.

(g) Subject to clause 11.9(f), where a casual employee has elected to convert to full-time or part-time employment, the employer and the employee must discuss and agree upon:

(i) whether the employee will become a full-time or a part-time employee; and

(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked as provided for in clause 10.4.

(h) A casual employee who has elected to convert to full-time or part-time employment in accordance with clause 11.9 may only revert to casual employment by written agreement with the employer.”

[57] This provision is similar in a number of respects to the provision contained in the Manufacturing Award but it does contain some notable differences. Similar to the Alpine Award, the qualifying period is 12 months and in this respect it is more comparable to the provision in the NES rather than the more beneficial term in the Manufacturing Award. The employer has a slightly longer time to respond to the request under clause 11.9 than under the NES (4 weeks vs 21 days), and the basis upon which the employer may refuse the request under clause 11.9(e) is less restricted than under s.66H of the Act.

[58] Considered overall, clause 11.9 does not provide any additional benefit to employees compared to the NES residual right to request casual conversion, and may in some respects be somewhat detrimental. Clause 11.9 overlaps in its operation with the NES right, and the existence of differently-expressed rights and problems posed in attempting to achieve simultaneous compliance would cause interaction difficulty and uncertainty should clause 11.9 be retained. Our provisional view is that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.

4. Award-specific issues

4.1 Alpine Resorts Award 2020

Categorisation of casual definition clause

[59] The Alpine Award at clause 11.1 uses an ‘engaged as a casual’ definition for casual employees with the addition of the words ‘in any classification in this award’.

[60] It is our provisional view that the definitional element of this clause should be removed from the award and replaced with a new definition of ‘casual employee’ in clause 2 of the Alpine Award which references s.15A(1) of the Act to make it consistent or operate effectively with the Act. Clause 11.1 should, consistent with this view, be modified to read: ‘A casual employee may be engaged in any classification in this award’.

Multi-hiring arrangement clause

[61] Clause 20.3 of the Alpine Award provides multi-hiring arrangement in the following terms:

“20.3 Multi-hiring arrangement

(a) An employee may agree to be engaged on a multi-hiring arrangement as an alternative, or in addition to, dual-role employment.

(b) If an employer and an employee enter into a multi-hiring arrangement, the parties must agree on the primary role of the employee.

(c) The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) in any level or classification within Schedule A—Classification Definitions that they are qualified for, provided that:

(i) any non-primary role is to be undertaken, and paid for, on a casual basis; and

(ii) any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee’s primary role.

(d) Where clause 20.3 applies, clause 20.1 only applies to work within each role.”

(Emphasis added)

[62] Clause 20.3 of the Alpine Award in its current form allows an employer to offer two types of employment to a single employee – one primary role and a second, non-primary role which must be a casual position. This is a relevant term as it deals with the engagement of casual employees. Our provisional view is that clause 20.3(c) is inconsistent with the Act because it requires the non-primary employment to be casual, regardless of whether it meets the definition of casual employment in s.15A of the Act. Our provisional view is that, in order to make the award operate consistently with the Act, clause 20.3(c) should be amended by deleting subparagraph (i), so that it would read;

“(c) The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) in any level or classification within Schedule A—Classification Definitions that they are qualified for, provided that any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee’s primary role.”

[63] The non-primary employment could still be casual employment, provided that it meets the statutory definition in s.15A.

4.2 Animal Care and Veterinary Services Award 2020

[64] Clause 2 of the Animal Care and Veterinary Services Award 2020 (Animal Care Award) contains a definition of ‘associate’ which allows for veterinary surgeons to be employed as associates on a casual basis as follows:

“associate means a veterinary surgeon who is employed on a full-time, part-time or casual basis.”

[65] This definition does not affect the definition of a casual employee in the award, it simply operates to enable associates covered by the award to be employed in all types of employment. Therefore, it is our provisional view that the clause is not inconsistent with the Act and does not cause difficulty or uncertainty relating to the interaction between the provisions and the Act.

4.3 Cleaning Services Award 2020

[66] Clause 11.2 of the Cleaning Services Award 2020 (Cleaning Award) imposes restrictions on when a casual employee can be engaged:

“11.2 A casual employee may only be engaged:

(a) to perform work on an intermittent or irregular basis; or

(b) to work uncertain hours; or

(c) to replace a full-time or a part-time employee who is rostered off or absent.”

[67] The above provision is expressed in a way that, on one view, may be analogous to clause 12.1 of the Educational Services (Teachers) Award 2020 (Teachers Award) which was considered in [91]-[98] of the July 2021 decision, in that it places restrictions on the circumstances in which a casual employee may be engaged. In that decision, the view was expressed that the temporal limitation in clause 12.1 could be retained provided that a definition element in the clause was removed.

[68] Clause 11.1 of the Cleaning Award defines a casual employee as an employee who is engaged as a casual employee. In Attachment A, we express the provisional view that clause 11.1 should be removed, and replaced (in clause 2, Definitions) with a reference to the casual definition in s.15A of the Act. If that is done, then our provisional view is that clause 11.2 does not give rise to any inconsistency or interaction difficulty with the Act and, accordingly, should be retained. It may be noted that, however, if clause 11.2 is retained, it is unlikely that the casual conversion requirements of the NES will have any work to do in relation to employees covered by the Cleaning Award.

4.4 Corrections and Detention (Private Sector) Award 2020

[69] Clause 11.5 of the Corrections and Detention (Private Sector) Award 2020 (Corrections and Detention Award) provides for a change in the basis of employment clause in the following terms:

“11.5 Change in the basis of employment

Nothing in this award prevents the employer and the employee from agreeing to change the basis of the employee’s employment (as identified in clause 11.5) from time-to-time. Any agreed variation will be recorded in writing.”

[70] Clause 11.5 allows an employee and employer to agree in writing to change the ‘basis’ of the employee’s employment. This would encompass, in our view, changing employment from casual to permanent or vice versa, meaning that clause 11.5 is a relevant term for the purpose of this Review. We note that the clause immediately follows the casual conversion provision in clause 11.4. As set out in Attachment A, our provisional view is that clause 11.4 should be deleted and replaced with a reference to the NES casual conversion provisions.

[71] There is no difficulty with clause 11.5 insofar as it refers to a change from casual employment to permanent employment. In this respect, it is similar in effect to the statutory note to s.66F(1). However, insofar as the provision would appear to permit permanent employment to be changed to casual employment by agreement, even if the employment did not meet the definition of casual employment in s.15A, it gives rise to inconsistency with the Act.

[72] Our provisional view is that clause 11.5 should be removed from the award in order to resolve the inconsistency. Apart from its inconsistent aspect, the clause serves no practical purpose because there is no other provision in the award which might conceivably be construed as inhibiting casual employment being converted to permanent employment by agreement. Most awards contain no such provision, demonstrating the lack of necessity for such a provision.

4.5 Graphic Arts, Printing and Publishing Award 2020

[73] Clause 9.2 of the Graphic Arts Award provides a definition of full-time employment as follows:

“An employee not specifically engaged as a part-time or casual employee is a full-time employee for the purposes of this award, unless otherwise specified in this award.”

[74] Similar to other definitions identified as a ‘residual category’ definition this provision deems all employees not engaged specifically as a part-time or casual employee to be a full-time employee. Unlike the residual category of casual definitions the definition of full-time employment does not affect the engagement of casuals and may not be a relevant term. Our provisional view is that, if it is a relevant term, it does not cause any uncertainty or difficulty as the definition for a casual employee will be inserted with a reference to the Act.

4.6 Horse and Greyhound Training Award 2020

[75] Clause 10.2 of the Horse and Greyhound Award imposes restrictions on when a casual employee can be engaged:

“10.2 Casual employees may only be engaged in the following circumstances:

(a) to meet short term work needs; or

(b) to carry out work in emergency circumstances; or

(c) to perform work unable to be practicably rostered to a permanent employee.”

[76] For the same reasons as stated above concerning clause 11.2 of the Cleaning Award, our provisional view is that this provision does not give rise to inconsistency or interaction difficulty with the Act and, accordingly, may be retained in its current form.

4.7 Marine Tourism and Charter Vessels Award 2020

[77] Clause 9 of the Marine Tourism and Charter Vessels Award 2020 (Marine Tourism Award) provides a definition of full-time employment as follows:

“Any employee not specifically engaged as being a part-time or casual employee is, for all purposes of this award a full-time employee, unless otherwise specified in this award.”

[78] Similar to clause 9.2 of the Graphic Arts Award discussed above, our provisional view is that no amendment to this clause is necessary.

[79] Clause 11.2 of the Marine Tourism Award provides for a change in the basis of employment clause in the following terms:

“11.2 For the purposes of providing potential casual employees with the written notice as stipulated in clause 8.2, the employer must also specify the likely time periods or trips the employee will be required to work.”

(emphasis added)

[80] Clause 8.2 provides:

“8.2 Notice of employment type

(a) Upon making an offer of employment to a potential employee, the employer must provide a written notice to the person to whom the offer of employment is addressed stating:

(i) whether the person is to be engaged as an Overnight Charter Employee or a Non-overnight Charter Employee;

(ii) whether the person is to be engaged on a full-time, part-time or casual basis; and

(iii) the classification level and rate of pay the employee will receive.”

[81] The above provision is, on one view, analogous to clauses 11.4(d) of the Manufacturing Award and 11.3(b) of the Pastoral Award 2020 in that they impose a requirement that an employer inform a casual employee on engagement of the number of hours they are likely to be required to perform. The Full Bench considered this issue in [116]-[126] of the July 2021 decision and held that the appropriate course is to delete those provisions as they give rise to an uncertainty or difficulty relating to the interaction between the award terms and the Act as amended.

[82] It is our provisional view that clause 11.2 of the Marine Tourism Award be amended in the following manner:

“11.2 For the purposes of providing potential casual employees with the written notice as stipulated in clause 8.2, the employer must also specify the likely ~~time periods or~~ trips the employee will be required to work.”

4.8 Maritime Offshore Oil and Gas Award 2020

[83] The Maritime Offshore Oil and Gas Award 2020 (Maritime Award) contains no references to ‘casual’ employees or to casual employment. However, while the award does not have a ‘casual’ employee term, it does provide for ‘relief employees’.

[84] Clauses 8, 9 and 10 relevantly provide for the types of employment under the Award as follows:

“8. Types of employment

8.1 Employees under this award will be employed in one of the following categories:

(a) full-time employees; or

(b) relief employees.

8.2 At the time of engagement, an employer will inform each employee of the terms of their engagement and in particular whether they are to be full-time or relief employees.

9. Full-time employees

A full-time employee is engaged to work an average of 38 ordinary hours per week plus reasonable additional hours.

10. Relief employees

10.1 A relief employee is engaged to work:

(a) one-off periods of relief; or

(b) on a project with a finite life; and

receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees.”

[85] It is our provisional view that ‘relief employees’ described in clause 10 of the Maritime Award are not considered an equivalent casual employment term, rather they are a form of fixed-term employment.

[86] In the July 2021 decision the Full Bench considered the Fire Fighting Award 2020 (Fire Fighting Award) which, similarly, does not contain a reference to ‘casual’ employees or to casual employment. The Full Bench concluded that the Fire Fighting Award contains no ‘relevant terms’ within the meaning of cl.48(1)(c) of Schedule 1 and hence does not fall within the scope of the Casual Terms Review. 9 The Full Bench further noted that the same conclusion applies to other modern awards of the same character.

[87] Adopting the reasoning expressed in the July 2021 decision, it is our provisional view that as the Maritime Award contains no references to casual employment, the award does not fall within the scope of the Casual Terms Review.

4.9 Nurses Award 2010

[88] On 29 July 2021, a Full Bench of the Commission issued a decision 10 finalising the four yearly review of the Nurses Award 2010 (Nurses Award). Pursuant to that decision and determination11 the Nurses Award variations will be operative 9 September 2021. For clarity, we have included the varied clause references in the table at Attachment A.

4.10 Pharmacy Industry Award 2020

[89] Clause 8.3 of the Pharmacy Industry Award 2020 (Pharmacy Award) provides for a change in the basis of employment clause in the following terms:

“8.3 Moving between types of employment

(a) A full-time or casual employee can only become a part-time employee with the employee’s written consent.

(b) Moving to part-time employment does not affect the continuity of any leave entitlements.

(c) A full-time employee:

(i) may request to become a part-time employee; and

(ii) may return to full-time employment at a date agreed in writing with the employer.”

[90] This provision is different to clause 11.5 of the Corrections and Detention Award, as discussed above, because it does not contemplate a move from permanent employment to casual employment. Our provisional view is that we do not consider that the requirement for an employee’s consent to move from casual employment to part-time employment is inconsistent with the Act or gives rise to any interaction difficulty, even if it is a relevant term, and accordingly no change to the provision is required.

4.11 Professional Diving Industry (Industrial) Award 2020 and Professional Diving Industry (Recreational) Award 2020

[91] Both the Professional Diving Industry (Industrial) Award 2020 (Professional Diving (Industrial) Award) and the Professional Diving Industry (Recreational) Award 2020 (Professional Diving (Recreational) Award) contain a provision which states that if employment is of less than four weeks’ duration, employees will be paid at casual rates as follows:

Professional Diving (Industrial) Award

“9.2 Where employment is of less than 4 weeks’ duration, employees will be paid casual rates.”

Professional Diving (Recreational) Award

“8.3 Where employment is of less than 4 weeks’ duration, employees will be paid casual rates.”

[92] In the case of the Professional Diving (Industrial) Award, the provision is located in the award clause concerned with full-time employment. That makes it clear that the provision is concerned with the rates of pay for full-time employees (i.e. they are to receive a rate of pay which includes an amount of pay equivalent to the casual loading). It is our provisional view that this is therefore not a relevant term.

[93] The position is a little less clear in the Professional Diving (Recreational) Award, where the provision is contained in clause 8, Types of Employment, will contemplate full-time, part-time and casual employment under the award. On one view, therefore, it may be a relevant term because it may have application to casual employees. However, our provisional view is that the provision does not cause inconsistency or interaction difficulty with the Act because it is merely concerned with the rates of pay that are to apply to employees during any employment that does not last four weeks. We note that clause A.3 of Schedule A of the award specifies separate casual rates, and the heading to the clause states: ‘Casual employees (and other employees where duration of employment is less than 4 weeks)—ordinary rates’. This makes it clear that the purpose of clause 8.3 is for full-time and part-time employees to receive a rate that includes the casual loading for short-term employment lasting less than 4 weeks.

4.12 Seafood Processing Award 2020

[94] Clause 9.1 of the Seafood Processing Award 2020 (Seafood Award) provides a definition of full-time employment as follows:

“9.1 Any employee not specifically engaged as being a part-time or casual employee is, for all purposes of this award a full-time employee, unless otherwise specified in this award.”

[95] Similar to the definition discussed above in relation to the Graphic Arts Award we do not propose to amend this clause as part of this Review.

4.13 Textile, Clothing, Footwear and Associated Industries Award 2020

[96] The Textile Award contains the following definition of a casual employee:

“11.1 A casual employee is an employee who is engaged in relieving work or work of a casual, irregular or intermittent nature, but does not include an employee who could properly be classified as a full-time or part-time employee.”

[97] No provision of this precise nature was considered in the July 2021 decision.

[98] It is our provisional view that:

(1) Clause 11.1 is not consistent with the definition in s.15A of the Act because it incorporates restrictions on the use of casual employment not found in s.15A into a definition of casual employment.

(2) The restrictions may be preserved provided they operate upon a definition of casual employment that is consistent with s.15A.

(3) Accordingly, a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 2, Definitions of the award, and clause 11.1 should be modified to read:

“A casual employee may only be engaged in relieving work or work of a casual, irregular or intermittent nature.”

[99] Clause 11.11 deals with the termination of the employment of casual employees in the following terms:

“11.11 Termination of casual employee’s employment

A casual employee will be engaged by the hour. A casual employee’s employment can be terminated by either:

(a) the giving of one hour’s notice by either party; or

(b) the payment or forfeiture of one hour’s wages.”

[100] The first sentence contains an ‘engaged by the hour’ definition element. This is inconsistent with s.15A(1). Our provisional view is that, in order to remove the inconsistency, the first sentence should be deleted. The provision remains entirely functional without it.

5. Additional matters

[101] We note that there was one award in Group 1 which contains a definition of full-time employee similar to that which appears in the Graphic Arts Award, that is the Pest Control Industry Award 2020 (Pest Control Award). This matter was not raised in the August 2021 statement.

[102] Clause 9.2 of the Pest Control Award provides:

“9.2 Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in the award.”

[103] Similar to the definition discussed above in relation to the Graphic Arts Award we do not propose to amend this clause as part of this Review.

6. Next Steps

[104] Interested parties are to provide any responses in relation to the provisional views concerning the Group 2 awards as set out above and in Attachment A to this Statement by 4PM (AEST) WEDNESDAY, 18 AUGUST 2021.

[105] Interested parties are to provide submissions in relation to the issues identified above concerning the Horse and Greyhound Award and the Textile Award about which we have not expressed provisional views by 4PM (AEST) WEDNESDAY, 18 AUGUST 2021.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Discussion Paper, 19 April 2021.

2 [2021] FWCFB 4144.

3 [2021] FWCFB 4714, at Attachment A.

4 See Manufacturing Award, clauses 11.5(a), (b), (c), (d), (e), (f) and (g), (h) and (i).

5 See clause 11.5(j).

6 [2021] FWCFB 4144 at [238].

7 See clause 11.5(j).

8 [2021] FWCFB 4144 at [238].

9 [2021] FWCFB 4144 at [49] and [53].

10 [2021] FWCFB 4504

11 PR731767

ATTACHMENT A


Alpine Resorts Award 2020 MA000092
Clause	Provisional view	Action	Notes
11.1—– definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Remove definitional element from clause 11.1 and add reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. Vary clause 11.1 to read: ‘A casual employee may be engaged in any classification in this award’.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3 and 11.4—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.3 (award-specific clause). Insert new clause 11.3 as follows: 11.3 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 33—Dispute resolution.
11.5(a)(v)—requirement to inform at engagement	Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 11.5(a)(v). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Delete clause 11.5(a)(v).
11.5(b)—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
15.4—ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
17.1—breaks	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
18.6—regular and systematic employee	Definitions of ‘regular and systematic casual employee’ is a relevant term – proposed to update term - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
20.3(c)(i)—Multi-hiring arrangement	Requirement for non-primary role to be casual employment inconsistent with Act because it may not meet definition of casual employment in s.15A – remove requirement.	Amend clause 20.3(c) to read: ‘(c) The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) in any level or classification within Schedule A—Classification Definitions that they are qualified for, provided that any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee’s primary role.”
23.1(d)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
24.1(b)—penalty rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
C.1.3 and C.2.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Aluminium Industry Award 2020 MA000060
Clause	Provisional view	Action	Notes
8.3—requirement to inform at engagement	Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 11.2. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Amend clause 8.3 as follows: 8.3 The employer must also advise in writing the classification level to which the employee is appointed~~, and in the case of casual employees, the likely number of hours the employee will be required to work~~.
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—requirement to inform at engagement	Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 11.2. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Amend clause 11.2 as follows: 11.2 When an employer engages a casual employee, the employer must inform the casual employee who their employer is, their classification level, and their rate of pay. ~~and the likely number of hours they will be required to work.~~
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary
11.5—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 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 30—Dispute resolution.
16.2—junior employee rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
16.3(c)(i)—regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
20.3(b)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Ambulance and Patient Transport Industry Award 2020 MA000098
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4—casuals excluded from a number of award benefits	Not a relevant term	No variation necessary
11.5 and 20.3—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.6—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 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 30—Dispute resolution.
21.1—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Animal Care and Veterinary Services Award 2020 MA000118
Clause	Provisional view	Action	Notes
2—definition of ‘associate’	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144	No amendment necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 and 11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 and 20.1(c)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 and 11.6—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.7—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.7. Insert new clause XX.X as follows: XX.X 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 20—Dispute resolution.
21.1 and 27.3(a)(iii)—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
23.1—casuals excluded from Personal/carer’s leave and compassionate leave	Not a relevant term	No variation necessary
B.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Aquaculture Industry Award 2020 MA000114
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3(a), 20.2 and 20.3—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.3(b), 11.3(c) and 27—penalty rates for casual	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5. Insert new clause XX.X as follows: 11.5 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 30—Dispute resolution.
21.3— shiftwork penalties for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
22.1—casuals excluded from annual leave	Not a relevant term	No variation necessary
B.2, B.3.1 and B.3.2—	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Asphalt Industry Award 2020 MA000054
Clause	Provisional view	Action	Notes
2—casual ordinary hourly rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.2. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—minimum hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.4 and 11.6—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.7,19.1, 19.2 and 19.5—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.8—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.8. Insert new clause 11.8 as follows: 11.8 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 29—Dispute resolution.
20.5—shiftwork for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
26.3—penalty rates for casuals (public holidays)	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
A.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Black Coal Mining Industry Award 2020 MA000001
Clause	Provisional view	Action	Notes
10.4(a)— definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.4(a). Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
10.4(b)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
10.4(b)— minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
10.4(c), 17.2(a) and 17.2(c)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
No casual conversion clause	Add reference to NES casual conversion provisions pursuant to s 157(1)	Insert new clause 11.5 as follows: 11.5 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 24—Dispute resolution.
25.3 – casuals excluded from annual leave	Not a relevant term	No variation required
28.1 – leave to deal with family and domestic violence	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
A.6.8 – regular and systematic casual	Definition of and ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.


Cement, Lime and Quarrying Award 2020 MA000055
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2(a) and 11.4—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.2(b)—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3, 20.1 and 20.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 33—Dispute resolution.
21—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
C.5 and D.4—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Cleaning Services Award 2020 MA000022
Clause	Provisional view	Action	Notes
2—NES definition	Outdated references to the NES are to be updated (at [147]-[149] of [2021] FWCFB 4144)	By inserting the following after paragraph (b) in the extract of s.61 of the Act that appears in clause 2 under the definition of ‘National Employment Standards’: (ba) offers and requests for casual conversion (Division 4A);
8.2 and 8.3—requirement to inform at engagement	This clause does not mention a requirement to inform of hours of work General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—restrictions on when casuals can be engaged	No inconsistency or interaction difficulty with Act	No variation necessary
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.4. Insert new clause 11.4 as follows: 11.4 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 30—Dispute resolution.	Clause is similar to the casual conversion clause in the Manufacturing Award. Although there are additional clauses in the Cleaning Award casual conversion clause.
13.5—Ordinary hours of work and roster cycles for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
19.2(b) and 19.3(b)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
20.2(c) —penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
21.1— casuals excluded from annual leave entitlement	Not a relevant term	No variation necessary
B.1.4 and B.2.5—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Concrete Products Award 2020 MA000056
Clause	Provisional view	Action	Notes
7.2—facilitative provisions	Relevant term re reference to clause 11.5(j) - delete entire reference consistent with provisional view concerning clause 11.5(j) (see below)	Vary clause 7.2 to delete entire reference to clause 11.5(j)
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3, 20.2 and 21.8—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 42—Dispute resolution.
B.4—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Corrections and Detention (Private Sector) Award 2020 MA000110
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
10.6—definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.6. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3—penalty rates and overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.4. Insert new clause 11.4 as follows: 11.4 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 29—Dispute resolution.
11.5—change in basis of employment	Inconsistent with Act because allows permanent employment to be converted to casual employment even if it does not meet the definition of casual employment in the Act – remove provision to eliminate inconsistency.	Delete clause 11.5
13.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
19.2(c)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
D.1.3, D.2.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Cotton Ginning Award 2020 MA000024
Clause	Provisional view	Action	Notes
7.2—facilitative provisions	Relevant term re reference to clause 11.3 - delete entire reference consistent with provisional view concerning clause 11.3 (see below)	Vary clause 7.2 to delete entire reference to clause 11.3
11.1—definition of casual employee	‘Engaged as a casual’ and ‘Paid by hour’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.	Definition is both engaged and paid by the hour type of definition: 11.1 A casual employee is engaged and paid on an hourly basis.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 and 11.3—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 31—Dispute resolution.
21.1(a) and 21.1(d)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
22.1—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
A.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Gas Industry Award 2020 MA000061
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1	‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.4—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 28—Dispute resolution.
15.3(c)—regular and systematic employee	Definitions of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
19.1(b), 19.6(c) and NOTE—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
19.8—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
20.1—casuals excluded from annual leave	Not a relevant term	No variation necessary
B.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Graphic Arts, Printing and Publishing Award 2020 MA000026
Clause	Provisional view	Action	Notes
9.2—definition full-time employee
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.4—employer must not fail to re-engage because employee has accessed their NES entitlements	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.5, 28.2(a)(ii), 28.3(a)(ii) and 28.7(b)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.6—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.6 and 11.7. Insert new clause 11.6 as follows: 11.6 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 39—Dispute resolution.
31.1—casuals excluded from annual leave	Not a relevant term	No variation necessary
30.2(b) - stand-by for work payment	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]


Health Professionals and Support Services Award 2020 MA000027
Clause	Provisional view	Action	Notes
8.1(b)—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Paid by hour’ and ‘residual’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—ordinary hours for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3 and 11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.6, 24.1(c), 24.3 and 24.4(b)(ii)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.7—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.7. Insert new clause 11.7 as follows: 11.7 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 35—Dispute resolution.
16.1(b), 17.1—progression through pay points	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
16.7(c)(ii)—regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
24.1(c), 24.3, 24.4—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
25.1(b) and 25.3(b)—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
C.1.3 and C.2.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Horse and Greyhound Training Award 2020 MA000008
Clause	Provisional view	Action	Notes
2 and 10.5(c)—casuals all-purpose rate	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
8.2— requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
10.1—definition of casual employee	‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
10.2—casuals engaged in certain circumstances	No inconsistency or interaction difficulty	No variation necessary
10.3—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
10.4—casual employees dismissed away from normal place of employment	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
10.5(a)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
10.5(b) and (c) and 18.1—casuals excluded from any of the leave or public holiday benefits applying to full-time employees	Not a relevant term	No variation necessary
10.6 and 17.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
10.7—casual conversion	No provisional view – see [37]-[40] of Statement	Further submissions invited
13.4(d)(ii)—regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
14.3—payment of wages	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
18.1—casuals excluded from the annual leave	Not a relevant term	No variation necessary
A.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Hydrocarbons Industry (Upstream) Award 2020 MA000062
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 and 13.1(b)—casual employees ordinary hours of work	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 23.1(c) and 23.3—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5—minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 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 33—Dispute resolution.
16.2—junior rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
16.3(c)(iii)—regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
21.8—accident pay for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
25.2—casuals excluded from annual leave provisions	Not a relevant term	No variation necessary
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Marine Tourism and Charter Vessels Award 2020 MA000093
Clause	Provisional view	Action	Notes
9—definition of full time employee
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—requirement to inform at engagement (hours of work)	Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 11.2. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Amend clause 11.2 as follows: 11.2 For the purposes of providing potential casual employees with the written notice as stipulated in clause 8.2, the employer must also specify the likely ~~time periods or~~ trips the employee will be required to work.
11.3(a)—engaged to work specified trip or trips AND 11.4(a) —engaged to work a variety of hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3(b) and 11.4(b)—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3(c) and 11.4(d)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3(d), 11.4(e), 19.1(c) and note, 19.2(c) and note—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4(c)—ordinary hours of a casual	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 28—Dispute resolution.
15.2—casual hourly rate	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
17.3(a)(i)—meal allowance during overtime	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
A.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Maritime Offshore Oil and Gas Award 2020 MA000086l
Clause	Provisional view	Action	Notes
8.1—types of employment	Not a relevant term	No variation required
8.2—types of employment	Not a relevant term	No variation required
10—Relief employees	Not a relevant term	No variation required


Medical Practitioners Award 2020 MA000031
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3 and 20.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—minimum hours for casuals	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 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 31—Dispute resolution.
16.2—progression through pay points	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
21.1(b), 21.1(c), 21.1(d), 21.2 and 21.3—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]


Mining Industry Award 2020 MA000011
Clause	Provisional view	Action	Notes
2 and 11.4—casual ordinary hourly rate	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—ordinary hours of a casual	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3 and 11.5—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.6, 20.1 and 20.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.7—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.8—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.8. Insert new clause 11.8 as follows: 11.8 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 30—Dispute resolution.
12.2—ordinary hours of work	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
14.3(ii)—minimum break	Not a relevant term	No variation necessary
15.2—junior employee rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
15.5(c)—regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
22.1—Annual leave	Not a relevant term	No variation necessary
B.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Nurses Award 2010 MA000034
Clause	Provisional view	Action	Notes
10.1(c)— requirement to inform at engagement (general)	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
10.4(a)—definition of casual employee	‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.4(a) Insert new definition of ‘casual employee’ in clause 3—Definitions as follows: casual employee has the meaning given by section 15A of the Act.	Varied Nurses Award 2020 (operative 9 September 2020) Clause 11.1
10.4(b)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
10.4(c)—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
10.4(d)—shiftwork for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
10.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 10.5. Insert new clause 10.5 as follows: 10.5 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 9—Dispute resolution.	Varied Nurses Award 2020 (operative 9 September 2020) Clause 11.6
15—progression through pay points	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
28.1—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
28.3— casuals excluded rest period after overtime	Not a relevant term	No variation necessary
36—Leave to deal with Family and Domestic Violence	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]


Oil Refining and Manufacturing Award 2020 MA000072
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—ordinary hours for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 22.1(c), 22.3 and 22.6—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 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 32—Dispute resolution.
13.1(c)—ordinary hours of work for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
15.4(a)(ii)—Minimum break between work on successive day or shifts	Not a relevant term	No variation necessary
16.2—Junior employee rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
16.3(c)(iii)— regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
20.8—accident pay for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
24.2—casuals excluded from annual leave provisions	Not a relevant term	No variation necessary


Passenger Vehicle Transportation Award 2020 MA000063
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement (general)	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.	‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)
11.2—notifying casuals if services not required	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 29—Dispute resolution.
13.1(e)—ordinary hours for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
20.1(a) and 20.2—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
B.2—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Pharmaceutical Industry Award 2020 MA000069
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 and 11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 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 29—Dispute resolution.
13.2(c)—ordinary hours for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
13.3(c)—ordinary hours for casual shiftworkers	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
15.2—junior employee casual rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
15.5(b)—higher duties for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
19.1(a), 19.4—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
21.1—casuals excluded from annual leave provisions	Not a relevant term	No variation necessary
B.5 and B.6—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Pharmacy Industry Award 2020 MA000012
Clause	Provisional view	Action	Notes
2 – NES definition	The definition of ‘National Employment Standards’ in clause 2 of the Award which references s.61 of the Act is outdated - see [143] of [2021] FWCFB 4144)	By inserting the following after paragraph (b) in the extract of s.61 of the Act that appears in clause 2 under the definition of ‘National Employment Standards’: “(ba) offers and requests for casual conversion (Division 4A);”
8.2 – requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
8.3—Moving between types of employment	No inconsistency or interaction difficulty	No variation necessary
10.12—part-time employment, additional hours	Not a relevant term- concerns rates and conditions of part-time employees when working in excess of agreed hours	No variation necessary
11.1 – definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 & 11.7 – minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 – penalty rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 & 21.4(e) – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.6 – casual pay periods	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.8 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.8 Insert new clause 11.8 as follows: 11.8 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 31—Dispute resolution.
19.5 – clothing allowance	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
22.3—penalty rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
24.3—personal/carers leave and compassionate leave—casual employee	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
B.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Poultry Processing Award 2020 MA000074
Clause	Provisional view	Action	Notes
8.2 – requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)	Delete clause 11.1
11.2 – minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.4 Insert new clause 11.4 as follows: 11.4 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 22—Dispute resolution.
19.5 & 19.7 – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
21.1 – casuals excluded from annual leave	Not a relevant term	No variation necessary
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Premixed Concrete Award 2020 MA000057
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2(a)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.2(b)—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3, 20.1, 20.2 & 20.4(c)—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.4 Insert new clause 11.4 as follows: 11.4 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 30—Dispute resolution.
21—penalty rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
A.2—Summary of hourly rates of pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary


Professional Diving Industry (Industrial) Award 2020 MA000108
Clause	Provisional view	Action	Notes
2—definition of ‘casual hourly rate’	General term - not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’
9.2—short-term employment	Not a relevant term	No variation necessary
10.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
10.2—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
10.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
10.4 and 30.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
10.5—payment for attendance when not required to work	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
10.6—payment on termination	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
10.7—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 10.7 Insert new clause 10.7 as follows: 10.7 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 22—Dispute resolution.
12.8—accident pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
25.1—ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
29.3(e)(ii) – casual footwear allowance	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
31.1(a), (b) and (c) – casuals exempt from leave, on and off-duty periods	Not a relevant term
34.2(a) – casuals excluded from disability allowance	Not a relevant term
34.2(b) - casual disability allowance	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
34.3(d)(iii) - clothing and equipment allowance	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
B.2 and B.4—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Professional Diving Industry (Recreational) Award 2020 MA000109
Clause	Provisional view	Action	Notes
2 – definition of ‘casual hourly rate’	General term - not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’
8.2 – casuals excluded from employment by the week	Not a relevant term	No variation necessary
8.3 – short-term employment	No inconsistency or interaction difficulty	No variation necessary
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – termination of employment	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 19.3 and 19.5 – casual overtime	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.5 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 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 28—Dispute resolution.
15.2(d) – minimum payments	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
A.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Racing Industry Ground Maintenance Award 2020 MA000014
Clause	Provisional view	Action	Notes
8.2 – requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
10.6 – definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.6 Insert new definition of ‘casual employee’ in clause 10.6—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3 and 19.1(b) - overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4 – night cleaning shifts for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 – minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 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 29—Dispute resolution.
15.3(d)(iv) – regular and systematic employee	Definitions of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
19.2(b) – casuals excluded from rest period after overtime	Not a relevant term
21.1 – casual employees excluded from annual leave	Not a relevant term
B.3 and B.4—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Rail Industry Award 2020 MA000015
Clause	Provisional view	Action	Notes
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 and 13.1(b)– casual ordinary hours	General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.3 and 11.6 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 and 11.5 – casual penalty rates	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.7 – minimum period of engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.8 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.8 Insert new clause 11.8 as follows: 11.8 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 30—Dispute resolution.
15.2 – junior casual paid by the hour	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
15.3(d)(iii) -	Definitions of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
20.1(c) – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
B.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Road Transport (Long Distance Operations) Award 2020 MA000039
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—casual employee additional rates per km	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.3 and 16.6—casual employee loading or unloading, casual loading	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4—minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.6 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 28—Dispute resolution.
16.2—guaranteed minimum payment	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
25.4—penalty rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
A.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Road Transport and Distribution Award 2020 MA000038
Clause	Provisional view	Action	Notes
8.2 – requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1 – definition of casual	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—notify if services not required	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 – minimum payment per engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary
11.5 – overtime for casual	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.6 – casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 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 32—Dispute resolution.
13.3 – casual ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
19.2 – allowance calculation for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
21.4 – casuals excluded from rest time after overtime	Not a relevant term
22.4, 22.8 and 23.2(e)– shiftwork for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
24.1 – casual excluded from annual leave	Not a relevant term
C.4 and C.5—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Salt Industry Award 2020 MA000107
Clause	Provisional view	Action	Notes
2 – definition of ‘all purpose’	This definition includes when a casual loading is included as an all purpose rate General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Amend clause 11.1 as follows ~~A casual employee is an employee who is engaged and paid as a casual employee.~~ A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 21.1(b), 21.2(b), 22.1(c), 22.1(d), 22.2(b) and 22.3(b) – overtime rates and penalty rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 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 31—Dispute resolution.
13.1(b) – casual ordinary hours	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
15.5(a)(ii) – casuals excluded rest period after overtime	Not a relevant term
16.3(f) – regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
23.1 – casuals excluded from annual leave	Not a relevant term
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Seafood Processing Award 2020 MA000068
Clause	Provisional view	Action	Notes
9.1 – definition of full-time employee	Not a relevant term
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3, 19.1(b), 19.1(e), 19.4(b), 19.5(b), 19.6(b), 19.6(d) and 19.6(f) – casual overtime rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4 – minimum payment for casuals	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5 – requirement to inform	Includes a requirement to inform at engagement of the hours of work / likely number of hours at clause 11.5. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Propose the following wording: 11.5 When engaging a casual employee, the employer must inform the employee: (a) that they are employed as a casual; (b) by whom the employee is employed; (c) the employee’s classification level; and (d) the employee’s rate of pay~~; and~~ ~~(e) the likely number of hours required.~~
11.6 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 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 29—Dispute resolution.
19.3(b)—casuals excluded from rest period after overtime	Not a relevant term	No variation necessary.
21.1 – casuals excluded from annual leave	Not a relevant term
A.2—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Security Services Industry Award 2020 MA000016
Clause	Provisional view	Action	Notes
8.2 – requirement to inform	Not inconsistent (at [121] of [2021] FWCFB 4144)	No variation necessary
11.1 – definition of casual employees	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.3 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.3 Insert new clause 11.3 as follows: 11.3 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 30—Dispute resolution.
13.3(a)(iii) – minimum ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
13.6 – casuals excluded from rostering notifications	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
19.2(c) – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
20.2(b) and 20.3 and example – penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
21.1 – casuals excluded from annual leave	Not a relevant term
B.3—Summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Stevedoring Industry Award 2020 MA000053
Clause	Provisional view	Action	Notes
11.1 – casual definition	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 21.4 and 21.6 – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 – casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 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 33—Dispute resolution.
13.1(b) – ordinary hours of work for casuals	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
16.3(l)(ii) – regular and systematic employee	Definition of ‘regular and systematic casual employee’ is a relevant term – proposed to update terms - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
19.8 – accident pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]


Storage Services and Wholesale Award 2020 MA000084
Clause	Provisional view	Action	Notes
10.9 – definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 10.9
11.1 – definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 – minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.3 – casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4, 21.1(d) & 21.4(c) – overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5 - casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 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 32—Dispute resolution.
15.3(c) & (d) – higher duties	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
18.8 – accident pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
B.2- summary of hourly rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary


Textile, Clothing, Footwear and Associated Industries Award 2020 MA000017
Clause	Provisional view	Action	Notes
10.2 & 11.2—definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clauses 10.2 and 11.2 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.1—definition of casual employee	Inconsistency because restrictions on use of casual employment incorporated in definition. Add definition referring to s.15A(1) and redraft clause 11.1 as restriction on use of casual employees, as defined.	Vary clause 11.1 to provide: “A casual employee may only be engaged in relieving work or work of a casual, irregular or intermittent nature.” Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.3—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.4—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.5—engagements per day	Not inconsistent	No variation necessary
11.6 & 20.2—casual pay periods	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.7—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.8, 11.10, 28.1 & 28.4—overtime for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.8—casuals excluded from annual leave, sick leave & public holiday clauses	Not a relevant term	No variation necessary
11.9—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.11—termination of casual employment	First sentence of clause contains ‘engaged by the hour’ definition, similar to ‘paid by the hour’ definition. Inconsistent with s.15A(1) (see [81]-[84] of [2021] FWCFB 4144)	Delete first sentence of clause 11.11	This particular provision did not arise in the priority awards.
11.12—casual conversion	Replace paragraphs (a)-(i) of clause 11.12 with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) No provisional view re opening paragraph of clause 11.12	Delete clause 11.12 except for opening paragraph. Insert new clause 11.12 as follows: 11.12 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 40—Dispute resolution. Invite further submission re opening paragraph of clause 11.12.	Clause 11.12 is in very similar terms to the casual conversion clause in the Manufacturing Award.
16.1—ordinary hours of work	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
26.8—accident pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
41.9—dispute resolution training leave with 6 months or more service	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
C.4 and C.5—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary
F.5.8(g)—outwork provisions exclude casual employment provisions	Schedule applies only to full-time and part-time employees. Not a relevant term	No variation necessary


Timber Industry Award 2020 MA000071
Clause	Provisional view	Action	Notes
2—definition of irregular casual employee	Not consistent – relevant uncertainty or difficulty exists. Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete definition of ‘irregular casual employee’ in clause 2 – Definitions.
12.1—definition of casual employee	‘Engaged as a casual’ definition – (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 12.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
12.2—minimum payment	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
12.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
12.4 & 26—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
12.5—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 12.5 Insert new clause 12.5 as follows: 12.5 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 35—Dispute resolution.
17.2(d)—ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
20.4(a)(iii) & 20.4(b)(iii)—regular and systematic employee	Definitions of ‘regular and systematic casual employee’ is a relevant term – update term - (at [142], [147] and [149] of [2021] FWCFB 4144)	Delete the term ‘regular and systematic casual employee’ in both clauses and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act.
24.3 & 24.4—accident pay	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
27.1(d) - penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
28.1 – casuals excluded from annual leave	Not a relevant term	No variation necessary
33.5—non-casual part-time employees	The heading ‘non-casual part-time employees’ may give rise to difficulty relating to interaction between award and casual definition in Act .	Remove ‘non-casual’ from heading	This particular provision has not been directly addressed in the decision. No apparent reason for the use of the words ‘non-casual’, which are not used anywhere else in award.
D.3—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Transport (Cash in Transit) Award 2020 MA000042
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
10.5—definition of casual employee	‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144)	Delete clause 10.5
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—ordinary hours for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.3—requirement to inform at engagement (hours of work)	Includes a requirement to inform at engagement of the ‘actual or likely number of hours required’ at clause 11.3(c) Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Delete clause 11.3(c)
11.4(a)(ii) and 11.4(b)—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4(a)(i), 21.8, 21.9—penalty rates for casuals	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5, 20.1(b), 20.3(c) & 21.13—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.6—minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.7 —casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.7 Insert new clause 11.7 as follows: 11.7 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 30—Dispute resolution.
22.1—casuals excluded from annual leave	Not a relevant term	No variation necessary
A.3— summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Vehicle Repair, Services and Retail Award 2020 MA000089
Clause	Provisional view	Action	Notes
7.2 and 7.4—facilitative provisions (11.6(g) Casual conversion to full-time or part-time employment; 11.6(j) Variation of casual conversion 6-month eligibility period)	Relevant term re reference to clause 11.6 - delete entire reference consistent with provisional view concerning clause 11.6 (see below)	Remove references
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2—requirement to inform at engagement	First part of clause not inconsistent (see [120]-[121] of [2021] FWCFB 4144) However, includes requirement to inform of the likely number of hours to be worked. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Delete the words ‘and the likely number of hours required to be worked’ from clause 11.2.
11.3—minimum engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.4—casual loading & overtime for all casuals except those in 11.5	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] and [185]
11.5, 27.3 & 27.5(d)—casual loading, penalty rates and overtime for casual driveways attendants etc	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] and [185]
11.5, 28.2 & 28.5, 28.6—casual loading, penalty rates and overtime for casual vehicle salespersons	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] and [185]
11.6 & 11.7—casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clauses 11.6 & 11.7 Insert new clause 11.6 as follows: 11.6 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 37—Dispute resolution. Delete the second row in the table in clause 7.2 (containing in the first column ‘11.6(g)’ and in the second column ‘Casual conversion to full-time or part-time employment’ Delete the first row in the table in clause 7.4 (containing in the first column ‘11.6(j)’ and in the second column ‘Variation of casual conversion 6-month eligibility period’
20.14—calculation of accident pay for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
23—casuals excluded from penalty rates provisions in this clause	Not a relevant term	No variation necessary
24.1—casuals excluded from overtime provisions in this clause	Not a relevant term	No variation necessary
25—casuals excluded from shiftwork penalty rates in this clause	Not a relevant term	No variation necessary
28.7(d)(vi)—allowances	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
Clause 29.1—casuals excluded from annual leave	Not a relevant term	No variation necessary
B.2, B.4 and B.7—summary of hourly rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]


Waste Management Award 2020 MA000043
Clause	Provisional view	Action	Notes
8.2—requirement to inform at engagement	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2(a)—requirement to inform at engagement (general)	Not inconsistent (at [120]-[121] of [2021] FWCFB 4144)	No variation necessary
11.2(b) & 11.3—requirement to inform at engagement (hours of work)	Includes a requirement to inform at engagement of the likely number of hours (clause 11.2(b), such indication not being binding (clause 11.3). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144)	Delete clause 11.2(b) and 11.3
11.4—notification re whether required next working day	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation required	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
11.5—minimum daily engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6 & 11.7—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.8 & 19.2—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.9 - casual conversion	Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144)	Delete clause 11.9 Insert new clause 11.9 as follows: 11.9 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 30—Dispute resolution.
16.2(b)(i)—industry allowance	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary
19.4—casuals excluded from provision re time off between work of successive days	Not a relevant term	No variation necessary
20.3 & 27.5(g)—penalty rates for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
A.3—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary


Wool Storage, Sampling and Testing Award 2020 MA000044
Clause	Provisional view	Action	Notes
11.1—definition of casual employee	‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144)	Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act.
11.2 & 13.1(b)—ordinary hours	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.3—casual loading	Not inconsistent (at [176] and [178] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178]
11.4 & 21.1—overtime for casuals	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.4, 22.2(b), 22.3(b) & 22.4(b)—penalty rates for casuals	General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185]
11.5—minimum payment /engagement	Not inconsistent (at [163] of [2021] FWCFB 4144)	No variation necessary	FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163]
11.6—casual conversion	Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).	Delete clause 11.6 Insert new clause 11.6 as follows: 11.6 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 31—Dispute resolution.
15.3(a)(ii)—casuals excluded from provisions re minimum breaks between work on successive days	Not a relevant term	No variation necessary
16.2—casual junior rates	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
23.1—casuals excluded from rostered days off	Not a relevant term	No variation necessary
A.3.7(c) & A.3.8(c)—classification promotional criteria	General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)	No variation necessary	This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185]
B.2—summary of hourly rates	General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144)	No variation necessary