LONG SERVICE LEAVE WESTERN

AS AT FEBRUARY 2015

This fact sheet provides a general overview of the laws governing long service leave entitlements in Western Australia, which is governed by the Long Service Leave Act 1958.

Who is entitled to long service leave? Full time, part time and casual employees are entitled to long service leave, based on the length of their continuous .

How much long service leave is an employee entitled to? 10 years employment An employee who has completed 10 years of continuous employment will be entitled to 8 2/3 weeks long service leave.

In respect of every five years continuous employment after that, an employee will be entitled to 4 1/3 weeks of long service leave.

Should the employment be terminated for any reason other than serious misconduct, an employee will be entitled to leave in respect of the number of years of continuous employment since their last entitlement. This will be a proportionate amount of leave on the basis of 8 2/3 weeks for every 10 years of service.

At least 7 years service An employee who has completed at least 7 years but less than 10 years continuous employment will be entitled to leave should their employment be terminated for reasons other than serious misconduct. This amount will be a proportional amount on the basis of 8 2/3 weeks for 10 years of continuous employment.

What constitutes continuous employment? The Act sets out specific circumstances in which an employee’s employment is deemed to be continuous, with the effect that their total service should be counted toward their long service leave entitlement. These circumstances include:  absence due to sickness or injury, but only to the extent of 15 working days in any year;  ;  long service leave;  public holidays;  termination due to an employer intending to avoid obligations under the Long Service Leave Act 1958 or any award or industrial agreement in respect of long service leave;  any period on defence force leave.

There are also circumstances that will not continuity of employment but the period of absence is not counted towards an employee’s length of service:  any absence (other than an absence listed above) that is authorised by the employer (e.g. );  any stand down in accordance with the provisions of an award, industrial agreement, order or determination;  any absence arising directly or indirectly from an industrial dispute if the employee returns to work in accordance with the terms of settlement of the dispute;  termination due to slackness of trade, provided the employee is re-employed not more than 6 months after the initial termination of employment;  termination of employment by the employer on any ground other than slackness in trade, provided the employee is re-employed within a period not more than 2 months from the date of termination;  any reasonable absence of the employee on legitimate union business in respect of which they have requested and been refused leave;  any absence from employment by reason not otherwise specified in the legislation unless the employer, during the absence or within 14 days of the termination of the absence, gives written notice to the employee that the continuity of employment has been broken by that absence, in which case the absence will be deemed to have broken the continuity of employment.

Payment for long service leave The employer must pay the employee for long service leave at their ordinary rate of pay. However, if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee at the higher rate.

Where an employee is paid based on results, their rate of pay will be an average of their weekly earnings over the 12 months prior to taking long service leave.

In regards to part-time and casual employees whose hours often vary from week to week, the appropriate rate of pay will be based on an average of hours worked during the period of employment.

When must payment be made? Payment is to be made at the usual time payment is made in the normal course of employment.

The employee can, however, request in writing to be paid before the period of leave commences, in which case the employer is to do so.

The employer and employee can agree to another method of payment.

How do public holidays affect a period of long service leave? Long service leave is exclusive of public holidays. Therefore, each public holiday falling within a period of long service leave will extend the length of the leave by one day.

When can an employee take long service leave? Provided agreement is reached between the employer and the employee, long service leave is to be taken as soon as is reasonably possible after it becomes due and may be taken in one continuous period or in separate periods of not less than one week.

An employee is free to take leave at any time which is convenient to them after it has been more than 12 months since they became entitled to the leave. An employer must not refuse to grant this long service leave, however, two weeks’ notice must be given by the employee.

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Can employees take long service leave before it has accrued? An employer may allow an employee to take long service leave before it has accrued. The employee will not be entitled to any additional leave until they have worked the required period of time to compensate for the long service leave that was taken before it had accrued.

Can employees cash out their long service leave? Employees can cash out their long service leave so long as the employee is given adequate benefit in lieu of the entitlement and the agreement is in writing.

Can an employee work for another employer during long service leave? No. An employee must not engage in paid employment that is in substitution for the employment from which they are on long service leave. Where this is found to be the case, the employee will forfeit their long service leave entitlement.

What happens to long service leave when purchasing a business? The Act provides that an employee’s service with an old employer will be taken to be a period of service with a new employer when the employee’s calling is transferred to the new employer.

This means that if you purchase a business and take on the employees who have previously worked for the vendor, you could be taking on an obligation to pay out these entitlements at some future time

For more information Phone: 1800 RETAIL (738 245) | Email: [email protected]

IMPORTANT INFORMATION

The information contained in this fact sheet is accurate at the time of distribution to you. Award conditions and industrial relations laws change regularly, however, and you should ensure that you maintain your copy of this fact sheet in an up to date form. Any revised fact sheets issued will be available at www.nra.net.au. The information contained in this fact sheet is not a substitute for independent professional advice. You should obtain any appropriate professional advice relevant to your particular circumstances.

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