Employees employed on a casual or seasonal basis in the WA private sector and in the WA State public sector are covered by the WA Long Service Leave Act 1958 unless under:
- an award;
- an industrial agreement;
- an agreement between the person and their employer; or
- a State, Territory or Commonwealth law,
they are entitled to, or eligible to become entitled to, long service leave that is at least equivalent to the long service leave entitlement under the Long Service Leave Act.
Many employees working on site in the construction industry are covered by the Construction Industry Portable Paid Long Service Leave Act 1985. The Long Service Leave Act does not apply to employees who are covered by the Construction Industry Portable Paid Long Service Leave Act 1985. MyLeave administers this scheme.
A casual or seasonal employee’s entitlement to long service leave depends on the length of their continuous employment with the same employer. A full entitlement to long service leave is 8.667 weeks leave when an employee completes 10 years of continuous employment. Employees may also have a pro-rata entitlement when employment ends.
When a casual employee takes long service leave, or is paid out long service leave when employment ends, their ordinary pay for long service leave purposes includes their casual loading.
Continuous employment
A casual or seasonal employee can have continuous employment despite working intermittently and/or with varying hours.
As a general principle, breaks between shifts or seasons where the employer does not provide the employee with work and which are part of the employee’s terms of employment do not mean:
- the employee has been absent from work; or
- the employee’s employment has been terminated at the end of the shift or season.
Such breaks between shifts or seasons that are part of the employee’s terms of employment therefore:
- do not break the employee’s continuity of employment; and
- counts towards the employee’s period of employment.
Examples
Niall is a casual employee who is engaged by Daniel to only work during school term time. As Daniel does not require Niall to perform work during the term breaks, this ‘absence’ is one that arises under the terms of Niall’s employment and Niall’s employment is considered continuous.
Freya employs Heidi for six months of the year to perform harvest related work. As Heidi’s harvest related work for Freya always recommences at the start of each harvest season, Heidi’s employment is considered continuous as the 6 month ‘absences’ each year are caused by seasonal factors.
A casual or seasonal employee can also have continuous employment with an employer despite the fact that:
- the employee is employed by the employer under two or more contracts of employment; or
- the employee is also employed by another person during the period of employment with the employer.
Whether a particular casual or seasonal employee has completed the required period of continuous employment will always depend upon the circumstances of their employment.
What counts towards continuous employment
Some absences do not count towards a period of continuous employment for a casual or seasonal employee. This means an employee’s length of continuous employment may not be the same as the total time they have worked for an employer.
The continuous employment provisions in the Long Service Leave Act changed in 2022. How absences are treated will depend on whether an employee’s long service leave entitlements fully accrue (i.e. fall due) on or after 20 June 2022, or before 20 June 2022.
Continuous employment - entitlements accrued on or after 20 June 2022
This information applies to casual and seasonal employees whose initial 10 year period of continuous employment or subsequent 5 year period was completed on or after 20 June 2022.
Under the Long Service Leave Act, a casual or seasonal employee has continuous employment with an employer despite an absence from work for any of the following reasons, irrespective of the duration:
- an absence under the terms of the employment;
- an absence caused by seasonal factors; and
- any other absence after which the employee has, due to the regular and systematic nature of the employment, a reasonable expectation of returning to work for the employer.
Any absence in any one of these categories counts towards a casual employee’s period of continuous employment.
Absences under an employee’s ‘terms of employment’ can include:
- statutory entitlements (such as personal leave and other minimum leave entitlements that apply to casuals);
- entitlements under an award or registered agreement; or
- entitlements set out in a contract of employment.
Breaks between shifts or seasons where an employer does not provide a casual employee with work count towards the employee’s period of continuous employment.
Example
Usman is regularly employed by Howard to work such shifts as determined by Howard. Usman asks Howard for two months off work to study for final exams and Howard agrees to this. As Usman is regularly and systematically employed by Howard and he has a reasonable expectation of returning to work for Howard after the absence, the two month absence will not break Usman’s continuity of employment and will count towards his period of continuous employment.
Continuous employment - entitlements accrued pre 20 June 2022
An employee may have a long service leave entitlement that fully accrued prior to 20 June 2022 - that is their initial 10 year period of continuous employment or subsequent 5 year period was completed prior to 20 June 2022.
In this case, the previous Long Service Leave Act provisions about absences that count towards the period of continuous employment continue to apply. These pre-20 June 2022 provisions are outlined on long service leave entitlements accrued before 20 June 2022.
There were no specific rules in place for determining casual and seasonal employees’ continuous employment prior to June 2022. As a general principle, breaks between shifts or seasons that are part of an employee’s terms of engagement count towards the employee’s period of continuous employment.
Normal weekly number of hours
Show moreA casual or seasonal employee’s normal weekly number of hours of work is the average weekly number of hours worked by the employee during their period of continuous employment. If the hours worked by the employee over their period of continuous employment are not known, their hours are averaged on the basis of the hours that are known.
Averaging the hours worked by a casual or seasonal employee takes into account periods when their employer did not provide them with work in accordance with their terms of employment.
Absences which are not counted when calculating the length of a casual or seasonal employee’s continuous employment (see What counts towards continuous employment above) are not included when averaging the employee’s hours.
Example 1
On 1 January 2013, Jennifer is employed to work casually at an amusement park. As the amusement park is only open for part of the year, Jennifer does not work every week of the year. For those weeks of the year that Jennifer is not required to work (because the park is closed) her weekly hours are recorded as ‘zero’.
During the first 10 years of employment, Jennifer does not have any absences that would be excluded from continuous employment. Jennifer therefore becomes entitled to 8 .667 weeks of long service leave on 1 January 2023, after completing 10 years of continuous employment. As Jennifer’s hours of duty have varied over the accrual period, her employer needs to calculate the average number of hours she has worked each week over the entire period.
Jennifer’s employer calculates that over the 10 year qualifying period (520 weeks), Jennifer has worked a total of 7,750 hours. Jennifer’s average weekly hours are therefore 14.90 (7,750 hours ÷ 520 weeks).
Jennifer is therefore entitled to 8.667 weeks of long service leave, paid at 14.90 hours per week.
Example 2
Zayne was employed to work casually in Brian’s café in March 2009. Zayne took 12 months of unpaid parental leave in 2016, but did not have any other absences that would be excluded from continuous employment based on the rules that applied at the time (See What counts towards continuous employment?' above). Zayne therefore became entitled to 8.667 weeks of long service leave in March 2020, after completing 10 years of continuous employment. As Zayne's long service leave entitlement fully accrued before 20 June 2022, the 12-month period of Zayne's parental leave does not count towards the length of Zayne’s continuous employment.
Taking long service leave
Show moreA casual or seasonal employee is entitled to take long service leave in the same manner as a full time or part time employee. For more information see taking long service leave.
During a period of paid leave, a casual or seasonal employee would not be able to be rostered or called into work.
A casual employees ordinary pay when they take long service leave includes their casual loading.
Casual state public sector employees
Show moreSome State Government awards and industrial agreements do not provide paid long service leave to casual public sector employees.
The Long Service Leave Conditions State Government Wages Employees General Order also does not provide paid long service leave to casual public sector wages employees.
Casual public sector employees who:
- are not entitled to paid long service leave under their award or industrial agreement, are entitled to long service leave under the Long Service Leave Act. This is regardless of the casual loading paid to such employees.
- are entitled to paid long service leave under their award or industrial agreement and that entitlement is at least equivalent to the entitlement to long service leave under the Long Service Leave Act, are not entitled to long service leave under the Long Service Leave Act.
