The Industrial Relations Commission of New South Wales has dismissed an employer’s appeal, confirming that unpaid trial shifts and other periods of unpaid work must be counted when determining if a casual employee has exceeded the maximum tenure threshold for conversion to permanent employment.
The Commission applied the ordinary legal meaning of “employment,” concluding that the term encompasses the entire period of the working relationship, whether the hours performed were paid or unpaid. By including unpaid trial periods in the calculation, the Commission found the employee had exceeded the tenure limit, meaning they were not entitled to request conversion to permanent work at that time. The decision reinforces that casual conversion rights are triggered based on the total duration of engagement, not just the remunerated portion.
The case centres on the interpretation of the “maximum period of employment” test within casual conversion provisions under the applicable modern award. The Commission applied the ordinary legal meaning of “employment,” concluding that the term encompasses the entire period of the working relationship, whether the hours performed were paid or unpaid. The decision establishes that unpaid trial shifts, induction periods, and other forms of unpaid work form part of the continuous employment relationship for the purpose of calculating tenure. This interpretation aligns with the broader objective of the casual conversion framework: to prevent the indefinite extension of casual employment by ensuring that all periods of engagement are accounted for when determining if an employee has exceeded the threshold to request conversion to permanent work.
The Industrial Relations Commission of New South Wales dismissed the employer’s appeal. By including unpaid trial periods in the calculation, the Commission found that the employee had exceeded the tenure limit, meaning they were not entitled to request conversion to permanent work at that time. The decision serves as a practical clarification for employers and employees on how the “maximum period of employment” is to be assessed under the relevant award.
This decision has direct implications for any casual employee in New South Wales wondering whether they have exceeded the hours needed to trigger conversion rights. Previously, some employers argued that only paid hours counted toward the “maximum period of employment” test. This ruling shuts that argument down. If you have done unpaid trial shifts, unpaid inductions, or any other unpaid work as part of your engagement, those hours are now legally counted alongside your paid hours.
Practically, this means a casual employee who has worked, for example, 12 weeks of unpaid trials plus several months of paid shifts may have already passed the tenure threshold required to request conversion to permanent work, even if their paid hours alone would suggest they are still below the limit. Employees should review their total engagement history, not just their payslips, when considering whether to request conversion. For employers, the takeaway is clear: when calculating whether a casual has hit the conversion ceiling, every hour of the working relationship must be accounted for, or risk facing a complaint that the employee was wrongfully denied conversion rights.
This article is based on the decision of the Industrial Relations Commission of New South Wales in Casual conversion rights tested: Unpaid work time counted toward maximum tenure (NSWIC 2026/37). The full judgment is available on AustLII at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWIC/2026/37.html.
