“Like for Like” – A consideration of casual conversion

Erin Lynch, Director

The Fair Work Commission (the “FWC”) recently addressed the right to convert to permanent employment when an industrial instrument (in this case an enterprise agreement) provides such a right. Of particular interest was the FWC’s consideration of the right to convert on a “like for like” basis.1

The relevant term of the enterprise agreement provided that:

“… where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged, in accordance with the Award.”

The employee claimed that he had a right to convert from casual employment to permanent employment on a “like for like” basis. Previously he worked Monday to Friday, normally commencing at 4.00am, and generally did an eight-hour shift. He wanted an equivalent position on a permanent basis.

The offer initially proposed by the employer was “made up of 4 hour, 5 hour and 6 hours shifts” and was communicated as amounting to “30 hours a week”. The employer asserted that this complied with the casual conversion clause of the enterprise agreement and the award.

The FWC ultimately concluded that the offer did not reflect the right conferred by the enterprise agreement to convert casual employment to permanent employment on a “like for like basis”.

It reached this conclusion on the basis that the phrase “like for like”:

  1. is to be interpreted “with a practical bent of mind” and in the manner which it was “likely to have been understood in the context of the relevant industry”2 ;
  2. requires a comparison between the nature and extent of the work previously performed by a casual employee with that of a permanent employee performing much the same work; and
  3. has to be applied to the facts and circumstances of each individual employee and the workplace in which the work is performed.

While it was held that mathematical precision is not required, the FWC accepted that it is a tool which assists in reaching an informed decision when comparing competing positions.

In this case, the nature and extent of the ordinary hours worked by the employee was a little less than eight ordinary hours per shift and about 34 hours per week. If you were to include ordinary hours together with overtime, the employee worked just over eight hours per shift and slightly more than 38 hours per week.

An offer of a position made up of “4 hour, 5 hour and 6 hour shifts” fell short, as in the casual role, the employee regularly worked Mondays to Fridays for periods in excess of six hours per shift. To meet the requirements of the enterprise agreement to convert employment on a “like for like” basis, the employee was entitled to a permanent full-time position.

In addition, the FWC added that the right to convert was not limited by what the employer may have be prepared to offer and it was “not merely a right to convert to a permanent position; it [was] also a right to convert to a permanent position on a “like for like basis”.”

This decision demonstrates that the FWC will adopt a fairly strict approach to interpreting casual conversion provisions in enterprise agreements (and potentially awards). Employers should be mindful when negotiating enterprise agreements, to avoid terms which may result in business outcomes that may not be sustainable.

We do note that in this case the employer did not argue that a permanent full-time position was not available for the employee and this could be relevant in other conversion situations.


1 Tomvald v Toll Transport Pty Ltd [2017] FCA 1208

2 Kucks v CSR (1996) 66 CR 182 at 184

First FWO prosecution for race-based underpayments

Therese MacDermott, Consultant

It is fairly well known to HR and legal practitioners that the extent of race based employment discrimination is not accurately reflected in the number of complaints lodged by individual workers. This makes the role of the regulator, in pursuing breaches of the Fair Work Act 2009 (Cth) (the “FW Act”) that are linked to race, a significant aspect of enforcement and compliance.

The Fair Work Ombudsman (“FWO”), since its inception, has assiduously prosecuted egregious underpayments and other conduct amounting to substantial non-compliance with core employment obligations.

In a recent case, following an audit of its work arrangements, an employer was found to have breached the FW Act in a number of respects, including by failing to pay the minimum award rates and other allowances for overtime, weekend work and public holidays and in relation to its record keeping obligations.1

The respondents admitted the underpayment and record keeping contraventions in relation to a number of its employees. However, the case proceeded on the outstanding issue of whether, in addition to the established breaches, the respondents had taken adverse action against particular employees because of their nationality or descent. Ultimately, the Court found that the employer contravened the prohibitions on discriminatory treatment in the FW Act. It held that the failure to pay particular workers correctly and other treatment was adverse action based on race.

In establishing the causal link between the treatment and the prohibited ground (in this case, race), many adverse action cases have turned on the state of mind or motivation of the decision-maker in order to ascertain the real reason for the decision-maker’s conduct. Many employers have been able to discharge the onus of establishing that a prohibited ground was not a substantial and operative factor for the treatment by establishing that the prohibited ground had nothing to do with the reasons the decision was made.

However, in this case, the Court did not accept that the second respondent (the decision-maker) was confused about the award obligations and concluded that the Malaysian national extraction and Chinese race of the employees in question was the substantial and operative reason. The Judge found that the employer failed to provide any convincing or credible explanations for the treatment consistent with the absence of race as a substantial and operative reason for the action.

This case is significant as it is the FWO’s first racial discrimination litigation. It is also a reminder to employers to ensure that decision-making within their organisations is not impacted by any prohibited grounds so as to bring into question compliance with the FW Act. Decision-makers must be able to provide credible explanations for the treatment of workers that is disassociated from any discriminatory treatment or other proscribed bases.


Fair Work Ombudsman v Yenida Pty Ltd & Anor [2017] FCCA 2299