Casual employment and long service leave

You may be entitled to long service leave as a casual employee.

Under section 56 of the Long Service Leave Act 1992 (Vic), an employee is entitled to 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer. Alternatively, under section 58 of the Act, an employee is entitled to an amount of long service leave equal to 1/60th of the period of his or her continuous employment, if he or she has completed at least seven years but less than 15 years of continuous employment with one employer.

Importantly, these provisions apply to casual employees. “Employee” is defined in s 59(b) of the Act as a person employed by an employer to do any work for hire or reward, including casual employees. Further, the Australian Industrial Relations Commission has stated that casual employees may be entitled to long service leave in certain circumstances (National Tertiary Education Industry Union v La Trobe University [2009] AIRC 576 (24 June 2009), [57]).

The employment of a casual employee must also be continuous under sections 56 and 58 of the Act to entitle an employee to long service leave.

Employment is considered “continuous” under section 62A(1) if:

(a)  there is no more than an absence of 3 months between each instance of

employment in the period; or

(b)  there is more than an absence of 3 months between two particular instances of employment, but the length of the absence is due to the terms of the engagement of the employee by the employer.

According to section 62A(3), subsection (1) applies even if—

(a)  any of the employment is not full-time; or

(b)  the employee is employed by the employer under 2 or more employment

agreements; or

(c)     the employee has engaged in other employment during the period.

The Long Service Leave Act 1992 (Vic) ensures that casual employees who engage in continuous work are entitled to long service leave.

“Am I entitled to long service leave as a casual employee if I move from one division to another within the course of my casual employment, where it is not clear whether I had more than one employer?”

Under sections 56 and 58 of the Long Service Leave Act 1992 (Vic), an employee must work for “one employer” to be entitled to long service leave. Section 60 outlines the circumstances in which an employee is considered to be employed by “one employer.”

Section 60 does not provide explicitly for circumstances in which a permanent or casual employee transfers divisions. If an employee simply moves division within the same business, he or she is considered to have worked for the one employer.

In the event that the new division is actually part of a separate entity, section 60(2)(a) still provides that an employee is considered to have been employed by “one employer” regardless of whether he or she was subsequently employed by a related body corporate or corporation.

Further, according to section 60(2)(b) the employer is still regarded as being employed by “one employer” despite being employed by another corporation if:

(i)     the directors of that other corporation and the employee’s present employer

were substantially the same; or

(ii)    that other corporation and the employee’s present employer were under

substantially the same management.

If either of the above has been satisfied and the casual employee engaged in continuous work, he or she will still be considered to have worked for “one employer”, and thus may be entitled to long service leave.

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