Size does Matter! What all Small Business Employers must learn
February 19, 2026
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A Small Business Employer is defined under the Fair Work Act 2009 (FWA) as being an employer with fewer than 15 employees.
Being a Small Business Employer provides a number of concessions under the FWA such as an exemption from redundancy pay; a 12 months’ protection window from unfair dismissal claims; and an additional defence to an unfair dismissal claim by demonstrating compliance with the Small Business Fair Dismissal Code.
For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code
But do your casuals count as part of your 15 employees? One of the key factors is whether your casuals have been employed on a “regular and systematic” basis.
EMPLOYMENT CRITERIA
In the case of Harry Grives v Aura Sports Pty Ltd
(2012) FWA 5552a number of criteria were established to identify whether a casual was to be included as an employee.
- The employee need only have been employed on a “regular and systematic” basis at some stage during their employment with the employer;
- The employee does not need to have a reasonable expectation of ongoing employment with the employer;
- Employment on a “regular and systematic” basis does not require the employee to be able to foresee or predict when their services may be required by the employer; and
- The pattern of employment must demonstrate the employer’s ongoing reliance on the employee’s services in the conduct of the employer’s business.
Significant gaps in periods of employment and lack of any consistent pattern in the hours worked shows that a company does not rely on the casuals’ services in the conduct of its business. In such a circumstance, for the purposes of the FWA, the casual would not be counted as an employee.
LESSONS FOR EMPLOYERS
When determining whether an employer employs fewer than 15 employees at the date of a dismissal to attain “Small Business Employer” protection, the following classes of employee are counted:
- All permanent part-time and full-time employees of the business;
- All permanent part-time and full-time employees of the business of an associated entity (e.g. companies with common directors or ownership,
- Casual employees of the business, or the business of an associated entity offered regular employment over a protracted period of service, regardless of:
- any variation in the hours they may work; or
- whether they have a reasonable expectation of ongoing employment with the business.
For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code
This article is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.

Bailiwick Legal has been honoured to support Forever Wild over the past few years as they delivered one of the most significant conservation land acquisition programs undertaken in Western Australia. Our team assisted Forever Wild with the strategic purchase of four pastoral stations, Narndee , Boodanoo , Meeline and Challa , transactions that now connect three State Reserves and protect more than 12,000 square kilometres of land. To put that scale into perspective, the combined area is approximately five times the size of the ACT and nearly one-fifth the size of Tasmania . Navigating complexity at scale These were not straightforward property transactions. Each acquisition involved: Multiple pastoral leases Layered regulatory and approval pathways Significant operational and on-ground assets Numerous stakeholders across government, industry and land management Our role was to guide Forever Wild through this complexity with clarity, precision and confidence, ensuring each transaction progressed efficiently while managing risk and safeguarding long-term objectives. “ Forever Wild is creating a world-leading model for nature funding that demonstrates we can manage viable, working pastoral stations whilst also restoring and protecting local ecological flora and fauna, and engaging and supporting Indigenous people and local communities. Complex & challenging, but this initiative could literally change the world .” Jessica Brunner - Director, Bailiwick Legal A growing and evolving legal landscape Large-scale conservation acquisitions sit within an emerging and increasingly complex legal field , intersecting land tenure, pastoral regulation, environmental frameworks and commercial considerations. These matters demand a deep understanding of both the legal mechanics and the practical realities of operating in regional and remote Australia. Our team’s experience in agribusiness, pastoral land transactions and regulatory approvals allowed us to support Forever Wild at every stage, from strategic structuring through to completion. Proud to support leadership in nature finance Forever Wild is widely recognised as an industry leader and a steadfast advocate for nature finance initiatives , helping pave the way for greater accessibility and innovation in conservation funding and land stewardship. We are proud to have contributed our relationships, expertise and practical legal insight to help Forever Wild achieve its vision, and to have played a role, however small, in shaping a groundbreaking future for conservation in Australia. At Bailiwick Legal, we value the opportunity to work alongside organisations that are thinking long-term, acting boldly, and creating outcomes that extend well beyond the transaction itself. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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