Fair Work Act 2009

This section applies if:

an instrument (the first instrument) of one of the following kinds that came into operation before the commencement of this Part applies to an employee on or after the commencement of this Part:

an enterprise agreement;

a workplace agreement;

a workplace determination;

a preserved State agreement;

an AWA;

a pre‑reform certified agreement;

a pre‑reform AWA;

an old IR agreement;

a section 170MX award; and

the instrument states that the employee is not entitled to long service leave; and

the instrument ceases, for whatever reason, to apply to the employee; and

immediately after the first instrument ceases to apply, an enterprise agreement (the replacement agreement) starts to apply to the employee.

The replacement agreement may include terms to the effect that an employee’s service with the employer during a specified period (the excluded period) (being some or all of the period when the first instrument applied to the employee) does not count as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory.

If the replacement agreement includes terms as permitted by subsection (2), the excluded period does not count, and never again counts, as service for the purpose of determining whether the employee is qualified for long service leave, or the amount of long service leave to which the employee is entitled, under this Division or under a law of a State or Territory, unless a later agreement provides otherwise. This subsection has effect despite sections 27 and 29.

References in this section to a kind of instrument (other than an enterprise agreement) are references to a transitional instrument of that kind, as continued in existence by Schedule 3 to the Transitional Act.