The continuous employment provisions in the WA Long Service Leave Act changed in 2022. The information here covers how continuous employment was calculated for long service leave entitlements that fully accrued before 20 June 2022.
What is continuous employment? details how to calculate continuous employment for long service leave entitlements that fully accrue after 20 June 2022, and for any pro rata long service leave calculations.
If an employee has a long service leave entitlement that fully accrued prior to 20 June 2022, the previous provisions in the Long Service Leave Act about absences that count towards the period of continuous employment still apply to that entitlement, even if the employee takes the long service leave (or receives payment for long service leave on termination) after 20 June 2022.
See the Absences that counted towards continuous employment before 20 June 2022 and Absences that do not count sections below.
An employee accrued an entitlement to long service leave in December 2021 but is yet to take that leave, there is no need for the employer to re-calculate the employee’s long service leave accrual based on the new provisions that are now in place.
There were no specific rules in place for determining casual and seasonal employees’ continuous employment prior to June 2022, only the general provisions which applied to all employees. As a general principle, breaks between shifts or seasons that are part of a casual employee’s terms of engagement count towards the employee’s period of continuous employment.
Absences that counted towards continuous employment before 20 June 2022
Show moreFor periods of long service leave that were fully accrued prior to 20 June 2022, the following absences counted as part of an employee’s period of continuous employment:
- periods of annual leave, of any duration
- periods of long service leave, of any duration
- periods of leave due to sickness or injury to the employee for a maximum of 15 working days per year of employment
- public holidays
- any period following the termination of the employee by their employer irrespective of the duration, if this was done by the employer with the intent of avoiding their long service leave obligations
- service with the Defence Forces Reserves.
As a general principle, breaks between shifts or seasons that are part of an employee’s terms of engagement count towards the employee’s period of continuous employment.
An employee’s period of employment with a previous owner of a business also counted as part of their period of employment with the new owner where there was a transmission of the business.
Absences that did not count towards continuous employment before 20 June 2022
Show moreFor periods of long service leave that were fully accrued prior to 20 June 2022, the following absences did not count as part of an employee’s period of continuous employment:
- periods of leave due to sickness or injury to the employee in excess of 15 working days per year of employment
- absences that are authorised by the employer (other than annual leave and long service leave) - for example, a period of parental leave or leave without pay
- any period between employment, where an employer terminates an employee for a reason other than slackness of trade but then re-employs them within 2 months of the termination
- any period between employment, where an employer terminates an employee due to slackness of trade but then re-employs them within 6 months of the date of termination
- any period when the employee was stood down by their employer in accordance with an award, agreement, order or determination. Please note the situation may be different if a stand down was based on a JobKeeper enabling stand down direction. See the JobKeeper scheme and long service leave for more information.
- any absence arising directly or indirectly from an industrial dispute, if the employee returned to work in accordance with the terms of settlement of the dispute
- any reasonable absence on legitimate union business for which the employee has requested, but been refused, leave.
Although these absences did not count as part of an employee’s period of employment for long service leave, they did not break an employee’s continuity of employment.
Example
Lewis commenced full time employment in July 2011, and then he sustained an injury playing football in 2017 and was absent from work on paid personal leave for seven weeks.
Of the seven weeks of personal leave, only the first 15 working days (three weeks) counted towards Lewis’ continuous employment for long service leave, and the remaining four weeks did not count towards continuous employment.
Lewis’s accrual date for long service leave was extended by the four week period that did not count, and he received his long service leave in August 2021.
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