Long service leave - What is continuous employment?

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This page provides information on the provisions of the Long Service Leave Act 1958 (WA).  For more information see the main Long Service Leave page.

To be entitled to long service leave under the Long Service Leave Act, an employee’s employment with their employer must be continuous. The amount of their long service leave is determined by the employee’s period of continuous employment.

There are some paid and unpaid absences or interruptions to an employee’s employment that:

  • do not break an employee’s continuous employment; and
  • count towards the employee’s period of employment for the purposes of accruing long service leave.

Some other types of absences do not break an employee’s continuous employment, but do not count towards an employee’s period of employment for the purposes of accruing long service leave.

An employee’s employment is also continuous despite a transmission of the business and the associated change of employer.

Paid and unpaid absences or interruptions that do not break continuous employment 

An employee’s employment is continuous despite certain absences or interruptions.

Paid or unpaid leave

An employee’s continuous employment will not be broken by:

  • periods of annual leave, of any duration
  • periods of long service leave, of any duration
  • period of sick leave, including unpaid sick leave, of any duration
  • periods of other paid or unpaid leave of any duration that are authorised by their employer
  • public holidays.

Other authorised absences

If an employer authorises an employee’s absence for any reason, the absence will not break the employee’s continuous employment.

Service in the Defence Forces

An employee’s service with the Defence Forces, irrespective of the duration, will not break their continuous employment.

Termination of the employee by the employer

An employee’s continuous employment will not be broken if:

  • the employer terminates the employee and this was done with the intent of avoiding their long service leave obligations
  • the employer terminates the employee for any reason other than slackness of trade if the employee is re-employed by that employer within 2 months of the date of termination
  • the employer terminates the employee due to slackness of trade if the employee is re-employed by that employer within 6 months of the date of termination.

Stand down, industrial disputes and union business

An employee’s continuous employment will not be broken if:

  • they were stood down by their employer in accordance with an award, industrial agreement, order or determination
  • their absence arose directly or indirectly from an industrial dispute if they returned to work in accordance with the terms of settlement of the dispute
  • their absence was a reasonable absence on legitimate union business for which the employee has requested, but been refused, leave.

Absences or interruptions that count as part of an employee’s period of continuous employment 

The absences that do count as part of an employee’s period of continuous employment are:

  • 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, irrespective of the duration.

An employee’s period of employment with a previous owner of a business is counted as part of their period of employment with the new owner where there has been a transmission of the business.

Absences or interruptions that do not count as part of an employee’s period of employment 

The absences or interruptions that do not count as part of an employee’s period of continuous employment for long service leave are:

  • 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 when the employer terminates the employee for any reason other than slackness of trade and the employee’s re-employment by that employer within 2 months of the date of termination
  • any period between when the employer terminates the employee due to slackness of trade and the employee’s re-employment by that employer within 6 months of the date of termination
  • any period when the employee was stood down by their employer in accordance with an award, industrial agreement, order or determination
  • 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 do not count as part of an employee’s period of employment for long service leave, they will not break an employee’s continuity of employment.

Casual and seasonal employees’ continuous employment 

A casual or seasonal employee can have continuous employment despite working intermittently and/or with varying hours. 

As a general principle, breaks between shifts or seasons where the employer does not provide the employee with work and which are part of the employee’s terms of engagement do not mean:

  • the employee has been absent from work
  • the employee’s employment has been terminated at the end of the shift or season.

Such breaks between shifts or seasons that are part of the employee’s terms of engagement therefore:

  • do not break the employee’s continuity of employment
  • can count towards the employee’s period of employment.

However, whether a particular casual or seasonal employee has completed the required period of continuous employment will always depend upon the circumstances of their employment.

Fly in, fly out employees’ continuous employment 

Fly in, fly out (FIFO) employees may work rosters where they do not perform work in ‘off weeks’. The same general principle applies to FIFO employees as with casual and seasonal employees.

Breaks between ‘on weeks’ where the employer does not provide the employee with work and which are part of the employee’s terms of engagement (i.e. off weeks) do not mean:

  • the employee has been absent from work
  • the employee’s employment has been terminated at the end of an ‘on week’.

Consequently, breaks between ‘on weeks’ that are part of the employee’s terms of engagement (i.e. ‘off weeks’):

  • do not break the employee’s continuity of employment
  • can count towards the employee’s period of employment.

However, whether a particular FIFO employee has completed the required period of continuous employment will always depend upon the circumstances of their employment.

Apprentices’ continuous employment 

When an apprentice, including a trainee, completes an apprenticeship with an employer and the employer continues to employ the apprentice once they are qualified, the apprentice’s period of employment as an apprentice counts as part of their period of continuous employment with that employer.

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