When does service as a casual count towards long service leave?

Author Paul Munro 10 Aug 2011
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An employee may work some time with an employer as a casual and the remainder as a permanent employee then seek a long service leave entitlement; so, how is the casual period regarded in relation to accrual of long service leave?

This question was recently sent to WorkplaceInfo.

The employment details of an employee employed in New South Wales shows a date of commencement of employment as 1 December 1997.

The employee has informed our HR department that she actually had a period of work with the company as a casual employee from 1 February 1996 to 31 October 1997, subsequently being re-employed as a full-time employee on 1 December 1997.

During this period of casual employment, she worked every week. An investigation of our employment records confirms this to be correct.

The employee will be resigning on 31 August this year and intends to retire from the workforce.

Her total service as a full-time employee is 14 years 9 months, however, total service, including her service as a casual employee, is over 16 years completed years.

Under New South Wales law, what is the correct entitlement to long service leave pay upon her resignation?

Under the NSW Long Service Leave Act 1955, service as a casual does count under the statute, however, the circumstances surrounding the termination on 31 October 1997 are crucial to determining total service.

In this case, the NSW Act provides that the previous service as a casual would count, provided the employee was terminated and re-engaged by the employer within two months.

This means the termination of the casual employment (31 October 1997) had to have been at the instigation of the employer.

If the employee resigned from her casual employment on 31 October 1997, then service would only count from the date the employee was employed as a full-time employee (1 December 1997).

The employee has an entitlement to long service leave on termination, regardless of the circumstances, because she has served more than 10 years of continuous service with the employer at the time of termination.

Provisions recognising periods of broken service under similar circumstances, including a period(s) of casual employment, are prescribed in other state and territory long service leave statutes.

Source: Paul Munro, IR Consultant.
 
Paul Munro
Paul has over 30 years’ experience providing advice to employers on workplace issues, with over 25 years as a workplace relations advisor with New South Wales Business Chamber. Paul has also been in a workplace advisory role with employer organisations in the timber industry and club industry. more from Paul
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