Long Service Leave Act 2018

This section sets out several situations in which an employee is taken, for the purposes of this Act, to be continuously employed.

An employee's employment is taken to be continuous despite an absence from work caused by the employee taking—

annual leave; or

long service leave; or

paid or unpaid parental leave (other than in the case of a casual or seasonal employee); or

in the case of a casual or seasonal employee, paid or unpaid parental leave that is not longer than 104 weeks; or

carer's leave; or

leave on account of illness or injury; or

any other form of leave not referred to in this subsection that is provided for under the relevant employment agreement.

A casual or seasonal employee's employment is taken to be continuous despite an absence from work that is longer than 12 weeks, starting at the end of a particular instance of employment and ending at the start of another particular instance of employment if—

the casual or seasonal employee and the employer so agree before the start of the absence; or

the absence is due to the terms of engagement of the casual or seasonal employee; or

the absence is caused by seasonal factors; or

the employee has been employed by the employer on a regular and systematic basis and the employee has a reasonable expectation of being re-engaged by the employer.

An employee's employment is taken to be continuous despite an absence from work caused by the employer terminating or interrupting the employment with the intention of avoiding an obligation in relation to long service leave.

An employee's employment is taken to be continuous despite an absence arising solely from the transfer of assets from one employer to another, if the employee usually performs duties which are connected with those assets.

An employee's employment is taken to be continuous despite an absence from work caused by the termination of the employee's employment—

at the initiative of the employer or the employee, if the employee is re‑employed by the employer within 12 weeks after the termination; or

because of the expiration of a specified term of an employment contract, if the employee is re‑employed by the employer within 12 weeks after the expiration; or

because the employee's apprenticeship to an employer is completed, if the employee is re‑employed by the employer within 52 weeks after the end of the apprenticeship.

An employee's employment is taken to be continuous despite the employer standing down the employee—

during industrial action if the employee cannot be usefully employed because of the industrial action; or

because of a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible if the employee cannot be usefully employed because of the breakdown; or

because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible if the employee cannot be usefully employed because of the stoppage.

An employee's employment is taken to be continuous despite any interruption arising directly or indirectly from an industrial dispute.

In this section—

the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

a ban, limitation or restriction on the performance of work by an employee or on the acceptance of, or offering for, work by an employee;

a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

an employer prevents an employee from performing work under the employee's contract of employment without terminating that contract.

Despite anything to the contrary in subsection (9), industrial action does not include the following—

action by employees that is authorised or agreed to by the employer of the employees;

action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

action by an employee if—

the action was based on a reasonable concern of the employee about an imminent risk to the employee's health or safety; and

the employee did not unreasonably fail to comply with a direction of the employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

The following periods of absence from work referred to in section 12 are taken to be periods of employment when calculating the length of an employee's period of continuous employment—

a period of paid leave;

if a period of unpaid leave is less than or is 52 weeks, that period;

if a period of unpaid leave is more than 52 weeks, the initial 52 weeks;

if a period of unpaid leave is more than 52 weeks, the entire period of unpaid leave if—

the period of absence is taken to be a period of employment in accordance with the relevant employment agreement; or

the employer and the employee agreed in writing before the leave was taken that the period is taken to be a period of employment; or

the leave is taken on account of illness or injury or is any other form of leave provided for under the relevant employment agreement;

a period of absence arising from—

an interruption to, or termination of, employment caused by the employer with the intention of avoiding an obligation in relation to long service leave; or

the transfer of assets from one employer to another if the employee usually performs duties which are connected with those assets.

If an employee enters into a contract of employment with an employer within 52 weeks after completing an apprenticeship with the employer, the period of apprenticeship is taken to be a period of employment when calculating the length of the employee's period of continuous employment.

a period of unpaid leave in excess of 52 weeks (other than the initial 52 weeks) unless—

the period of absence is taken to be a period of employment in accordance with the relevant employment agreement; or

the employer and the employee agreed in writing before the leave was taken that the period is taken to be a period of employment; or

the unpaid leave is taken on account of illness or injury or is any other form of leave provided for under the relevant employment agreement;

an absence following the ending of the employee's employment described in section 12(6)(a) or (b);

an absence caused by an employer standing down the employee described in section 12(7)(a), (b) or (c);

an interruption described in section 12(8).