Casual and seasonal employees in the WA private sector and in the WA State public sector are covered by the Long Service Leave Act unless under:
- an award;
- an industrial agreement;
- an employer-employee agreement;
- an agreement between the person and their employer; or
- a State, Territory or Commonwealth statute,
they are entitled to, or eligible to become entitled to, long service leave that is at least equivalent to the long service leave entitlement under the Long Service Leave Act.
Many employees working on site in the construction industry are covered by the Construction Industry Portable Paid Long Service Leave Act 1985. The Long Service Leave Act does not apply to employees who are covered by the Construction Industry Portable Paid Long Service Leave Act 1985. MyLeave administers this scheme - visit www.myleave.wa.gov.au for information.
The majority of State Government awards and industrial agreements do not provide paid long service leave to casual public sector employees.
The Long Service Leave Conditions State Government Wages Employees General Order also does not provide paid long service leave to casual public sector wages employees.
Casual public sector employees who:
- are not entitled to paid long service leave under their award or industrial agreement, are entitled to long service leave under the Long Service Leave Act. This is regardless of the casual loading paid to such employees
- are entitled to paid long service leave under their award or industrial agreement and that entitlement is at least equivalent to the entitlement to long service leave under the Long Service Leave Act, are not entitled to long service leave under the Long Service Leave Act.
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 employment 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 employment therefore:
- do not break the employee’s continuity of employment
- can count towards the employee’s period of employment.
Niall is a casual employee who is engaged by Daniel to only work during school term time. As Daniel does not require Niall to perform work during the term breaks, this ‘absence’ is one that arises under the terms of Niall’s employment and Niall’s employment is considered continuous.
Freya employs Heidi for six months of the year to perform harvest related work. As Heidi’s harvest related work for Freya always recommences at the start of each harvest season, Heidi’s employment is considered continuous as the 6 month ‘absences’ each year are caused by seasonal factors.
A casual or seasonal employee can also have continuous employment despite other absences from work if the employee has, due to the regular and systematic nature of the employment, a reasonable expectation of returning to work for the employer after the absence.
Usman is regularly employed by Howard to work such shifts as determined by Howard. Usman asks Howard for two months off work to study for final exams and Howard agrees to this. As Usman is regularly and systematically employed by Howard and he has a reasonable expectation of returning to work for Howard after the absence, the two month absence will not break Usman’s continuity of employment. This does not, however, require Usman’s to regularly and systematically work the same shifts or days each week.
A casual or seasonal employee can also have continuous employment with an employer despite the fact that:
- the employee is employed by the employer under two or more contracts of employment; or
- the employee is also employed by another person during the period of employment with the employer.
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.
For more information on the effect of absences and interruptions on continuous employment, see the What is continuous employment? page
If a casual or seasonal employee’s normal weekly number of hours of work have varied during their period of employment, their normal weekly number of hours is the average weekly number of hours worked by the employee during their period of employment. If the hours worked by the employee over their period of employment are not known, their hours are averaged on the basis of the hours that are known.
Averaging the hours worked by a casual or seasonal employee takes into account periods when their employer did not provide them with work in accordance with their terms of employment.
However, absences which are not counted when calculating the length of an employee’s continuous employment (for example, a period of unpaid leave) are not included when averaging the employee’s hours.
On 1 January 2013, Jennifer is employed to work casually at an amusement park. As the amusement park is only open for part of the year, Jennifer does not work every week of the year. For those weeks of the year that Jennifer is not required to work (because the park is closed) her weekly hours are recorded as ‘zero’.
During the first 10 years of employment, Jennifer does not have any absences that would be excluded from continuous employment (e.g. a period of unpaid parental leave or leave without pay). Jennifer therefore becomes entitled to 8 2/3 weeks of long service leave on 1 January 2023, after completing 10 years of continuous employment. As Jennifer’s hours of duty have varied over the accrual period, her employer needs to calculate the average number of hours she has worked each week over the entire period.
Jennifer’s employer calculates that over the 10 year qualifying period (520 weeks), Jennifer has worked a total of 7,750 hours. Jennifer’s average weekly hours are therefore 14.90 (7,750 hours ÷ 520 weeks).
Jennifer is therefore entitled to 8 2/3 weeks of long service leave, paid at 14.90 hours per week.
Ezra took 12 months of unpaid parental leave during a period of continuous employment. This 12-month period does not count towards the length of Ezra’s continuous employment.
If Ezra’s hours require averaging over his period of employment, the averaging will not include this 12 month period during which Ezra was on unpaid leave and worked no hours.
Ordinary pay for a casual employee includes their casual loading.
A casual or seasonal employee is entitled to take long service leave in the same manner as a full time or part time employee. For more information see What are the rules about taking long service leave page.
During a period of paid leave, a casual or seasonal employee would not be able to be rostered or called into work.
A casual or seasonal employee’s entitlement to long service leave when their employment ceases due to resignation, dismissal, redundancy, or when the employee dies depends upon the length of their period of continuous employment and whether they were dismissed for serious misconduct. Visit the What is the entitlement when employment ceases page for more information.