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 may in some circumstances also be continuous despite a change in the ownership of a business and the associated change of employer.

When an employee resigns, they break their continuous employment and when employment ends, are entitled to be paid out any pro rata or accrued long service leave (see the What is the entitlement when employment ceases? page). If an employee is later re-employed by that same employer, their previous employment will not count towards long service leave accrual and their long service leave accrual will begin from the date of re-employment.

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 period of continuous employment will not be broken by the following absences from work, whether paid or unpaid, and of any duration:

  • Annual leave
  • Personal leave, sick leave, or carer's leave
  • Long service leave
  • Parental leave
  • Compassionate leave
  • Bereavement leave
  • Family and domestic violence leave
  • Public holidays
  • Any other form of leave provided as part of the employee's employment.

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, provided the employee resumes employment with the employer as soon as practicable after the absence.

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 or annual 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; or
  • the employee is terminated by a previous owner of a business and then employed by the new owner of the business in circumstances where transfer of business provisions apply.

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.

Other types of absences

Absences other than those types specified above will not break an employee’s period of continuous employment unless the employer gives written notice to the employee during or within 14 days after the absence that their continuity of employment has been broken by the absence.

Absences or interruptions that count towards the length of an employee’s period of continuous employment 

The absences that do count towards the length of an employee’s period of continuous employment are:

  • periods of annual leave
  • periods of long service leave
  • periods of paid carer's leave
  • periods of leave for illness or injury for which the employee has received payment
  • periods of parental leave for which the employee has received payment (whether from the employer or the Commonwealth Government under its parental leave pay scheme)
  • periods of paid compassionate leave
  • periods of paid bereavement leave
  • periods of paid family and domestic violence leave (for example paid family and domestic violence leave provided under an agreement or employment contract)
  • any other form of leave provided as part of the employee’s employment, including leave authorised by their employer or provided in legislation or in an award, agreement or contract of employment, for which the employee has received payment
  • 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 or annual 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 transfer or transmission of the business.

Absences or interruptions that do not count towards the length of an employee’s period of continuous employment 

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

  • periods of leave for which the employee has not received payment. For example, a period of unpaid carer’s 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. Please note the situation may be different if a stand down was based on a JobKeeper enabling stand down direction. For information about the effect of JobKeeper enabling stand down directions on long service leave entitlements, see the JobKeeper enabling stand down directions and long service leave entitlements page
  • any period during a transfer or transmission of business where the employment of an employee of the old employer has terminated and the employee has not yet been employed by the new employer
  • 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
  • other types of absences authorised by the employer which are not listed above as counting as part of an employee’s period of continuous employment.

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.

JobKeeper enabling stand down directions and long service leave entitlements

For information about the effect of JobKeeper enabling stand down directions on long service leave entitlements, see the JobKeeper enabling stand down directions and long service leave entitlements page.

Unpaid pandemic leave and long service leave entitlements

This section provides information relevant to employees who have taken pandemic leave for which they have NOT received any payment, whether from the employer or the State or Federal Government. If an employee was on unpaid pandemic leave and received a payment such as the WA Government’s COVID-19 Test Isolation Payment or the Federal Government’s Pandemic Leave Disaster Payment, the period for which the employee received payment counts towards the employee’s period of continuous employment.

State system employees

For employees in the state system, information about the effect of unpaid pandemic leave on long service leave entitlements is available on the Unpaid pandemic leave page.

National system employees

For employees in the national system who derive their long service leave entitlements from the Long Service Leave Act, any unpaid pandemic leave taken by the employee in accordance with the relevant provisions in a national modern award will not count towards the employee’s period of continuous employment for accruing long service leave, but will not break the employee’s continuous employment.

Casual and seasonal employees’ continuous employment 

The  Long service leave – casual and seasonal employees page provides information about continuous employment for casual and seasonal employees

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’. 

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.

Sometimes there might be a gap between an employee completing their apprenticeship with an employer and then being employed by that employer as a qualified employee. If an employee enters into a contract of employment with an employer within 52 weeks of completing an apprenticeship with that employer, the gap does not break the employee’s continuous employment.  However, any gap between the completion of the employee’s apprenticeship and the employment of the employee on a new contract of employment does not count towards the length of the employee’s period of continuous employment.

Example

Carlos completes a mechanical apprenticeship with a vehicle repair business.  When Carlos completes his apprenticeship he ceases working for the employer, as the business cannot afford to keep him on.  However, 6 months later, the business has recovered financially, and it hires Carlos as a qualified mechanic.

As Carlos has entered into a contract of employment with his employer within 52 weeks of completing an apprenticeship with it, the period of the apprenticeship is taken to be part of his continuous employment.  However, the 6 month period where he was not working for the vehicle repair business does not count when calculating the length of his period of continuous employment.

The WA long service leave calculator can provide an estimate of an employee’s long service leave entitlement when employment ceases as a result of resignation, dismissal, or redundancy. 

 

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