On 28 May 2024, the parties reached agreement on a process by which employees entitled to conversion would be identified and converted.

Following the agreement on 28 May 2024, the parties discovered that they also disagreed on how to determine whether an employee is entitled to conversion under the awards.

Entitlement to Conversion under TfNSW Award
Clause 14.8(c) of the TfNSW Award provides that temporary employees may be employed in one of four circumstances: for fixed period; for a specified project; for an entry level program; to backfill a temporary vacancy. The Award provides that, in respect of employees engaged for a fixed period, they will be made permanent after 24 continuous months in the one role. There is no entitlement to conversion for employees in the other 3 circumstances. The PSA and TfNSW disagreed on how to determine the applicable circumstance an employee is engaged in and, therefore, how to determine whether an employee is entitled to conversion.

Earlier this month, with further assistance from the IRC, the parties agreed on ‘interpretation principles’ setting out how to determine the applicable circumstance an employee is engaged in. The principles can be summarised as follows:

1. The circumstance an employee is engage in under cl 14.8(c) is determined by reference to the facts at the time of engagement which indicate the relevant circumstance.

2. For this purpose, it is relevant to consider the terms of the employment contract and the documents or discussions which were provided or occurred at or prior to engagement, which indicate whether the employment is for a fixed period, a specified project, an entry level program or to backfill a temporary vacancy.

3. In respect of whether an employee is engaged for a specified project:

a. An employee can be engaged on one or multiple projects, either concurrently or consecutively, provided that each project is specified at the time of engagement and the engagement is for each project.

b. A project is not limited to an infrastructure/transport project and may not necessarily produce something tangible.

c. The project does not need to be in writing but there must be sufficient specificity with respect to identifying the project the employee is engaged for, at the time of engagement.

4. In respect of whether an employee is engaged for an entry level program or to backfill a vacancy, an employee may be engaged for a series of entry level programs or vacancies, provided that each program or vacancy is specified at the time of engagement.

5. In the event an employee has been engaged for a specified project, entry level program or to backfill a vacancy, but in fact the employee is performing work consistent with being employed for a fixed period (e.g. by performing work outside the scope of the project or projects), the employee may actually be employed for a fixed period entitled to conversion after 24 months continuous months in the role.

For example, an employee is engaged under a contract which states that employment will end in 2.5 years. The contract makes no reference to the employment being for a particular project or projects, entry level program or backfilling a vacancy. The employee did not receive any documents or have any conversations prior to signing the contract which suggested that the employment was for a particular project, entry level program or to backfill. Over the course of the employment, the employee has worked on various projects. The employee is employed for fixed period and is entitled to conversion after 24 months in the role.

The PSA was notified on Tuesday that TfNSW has now completed the audit process and identified the employees entitled to conversion under the TfNSW Award. TfNSW has suggested that employees identified as entitled to conversion will be notified over the coming days.

PSA members should contact the PSA if not provided confirmation of conversion

If you feel you meet the interpretation principles outlined above, but do not receive confirmation of this by COB Tuesday 27 August please contact the PSA so we can raise it further.

If an eligible employee has been dismissed because of the temporary nature of their contract, then they may be able to bring unfair dismissal proceedings and should contact the PSA urgently.

The PSA and TfNSW are still in negotiations in respect of the RMS Award. If you are covered by the RMS Award, please keep an eye out for a further bulletin.