Western Australian Numbered Acts Western Australian Numbered Acts Delete sections 5
and 6 and insert:
4A. Employees with equivalent separate LSL
entitlements
(1) In this
section —
award, agreement or enactment means —
(a) an
award or industrial agreement; or
(b) an
agreement between an employer and employee (including an employer-employee
agreement); or
(c) an
enactment of the State, the Commonwealth, another State or a Territory;
entitlement , in relation to long service leave or
payment on termination instead of long service leave, includes an eligibility
to become entitled to the long service leave or payment on termination instead
of long service leave;
WA LSL means long service leave, or payment on
termination instead of long service leave, under Part III.
(2) For the purposes
of this section, a separate LSL entitlement is an entitlement to long service
leave, and a payment on termination instead of long service leave, under an
award, agreement or enactment.
(3) For the purposes
of this section, a payment (whether in the form of a loading, other additional
incremental payment or otherwise) instead of an entitlement under
subsection (2) is not a separate LSL entitlement .
(4) This Act does not
apply to an employee who has a separate LSL entitlement to take long service
leave and to be paid on termination instead of long service leave that is at
least equivalent to the entitlement to WA LSL to take long service leave and
to be paid on termination instead of long service leave.
(5)
Subsection (6) applies to an employee —
(a) who
becomes entitled to WA LSL in relation to employment with an employer; and
(b) who,
immediately before becoming entitled to WA LSL, had a separate LSL entitlement
in relation to employment with the employer.
(6) Any long service
leave taken by, or payment on termination instead of long service leave made
to, the employee under the separate LSL entitlement must be taken into account
in the calculation of the employee’s entitlement to WA LSL as if it
were taken, or paid on termination, as WA LSL.
5. Cashing out of accrued long service leave
(1) An employer and an
employee may agree that the employee may forgo the employee’s
entitlement, or part of the employee’s entitlement, to long service
leave under section 8(2)(a) or (b) if —
(a) the
employee is given an adequate benefit instead of the entitlement; and
(b) the
agreement is in writing, signed by the employer and employee.
(2) For the purposes
of subsection (1), a benefit is not adequate unless the employee is paid
at least the amount of ordinary pay the employee would have received had the
employee taken the long service leave or part of the leave.
(3) Nothing in this
section enables the employer and employee to reach the agreement before the
employee’s entitlement to long service leave has accrued.
(1) An
employee’s continuous employment with an employer includes an absence
from work by the employee comprising any of the following, whether paid or
unpaid and irrespective of the duration —
(a)
annual leave;
(b)
leave for illness or injury, or carer’s leave;
(c) long
service leave;
(d)
parental leave;
(e)
compassionate leave;
(f)
bereavement leave;
(g)
family and domestic violence leave;
(h)
public holidays;
(i)
any other form of leave provided as part of the
employee’s employment.
(2) An
employee’s continuous employment with an employer also includes any of
the following absences from work, whether paid or unpaid and irrespective of
the duration —
(a) a
period following the termination of the employee’s employment by the
employer if the termination has been made with the intention of
avoiding —
(i)
obligations under this Act in respect of long service
leave; or
(ii)
obligations in respect of annual leave under an award,
industrial agreement, employer-employee agreement, order of the Commission,
the MCE Act or any other enactment;
(b) if
the employee resumes employment with the employer as soon as practicable after
the absence — a period during which the employment is interrupted
by service as a member of the naval, military or air forces of the
Commonwealth other than as a member of the Permanent Forces of the
Commonwealth of Australia.
(3) An employee has
continuous employment with an employer despite an absence from work comprising
any of the following, whether paid or unpaid and irrespective of the
duration —
(a) an
absence other than that referred to in subsection (1) or (2) which
is authorised by the employer;
(b) a
standing-down of the employee in accordance with the provisions
of —
(i)
an award, agreement, order or determination in force
under the IR Act; or
(ii)
the Fair Work Act 2009 (Commonwealth) or an
enterprise agreement under that Act; or
(iii)
any other enactment;
(c) an
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;
(d) a
reasonable absence from work on legitimate union business in respect of which
the employee has requested and been refused leave;
(e) an
absence for a reason not specified in subsection (1) or (2) or in
this subsection unless the employer gives, during or within 14 days after
the absence, written notice to the employee that the continuity of the
employment has been broken by the absence.
(4) An employee has
continuous employment with an employer despite a termination of the employment
by the employer —
(a) on
any ground other than slackness of trade — if the employee is
re-employed by the employer within a period not exceeding 2 months from
the date of the termination;
(b) on
the ground of slackness of trade — if the employee is re-employed
by the employer within a period not exceeding 6 months from the date of
the termination.
(5) A casual or
seasonal employee has continuous employment with an employer despite an
absence from work comprising any of the following, irrespective of the
duration —
(a) an
absence under the terms of the employment;
(b) an
absence caused by seasonal factors;
(c) 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.
(6) In addition, a
casual or seasonal employee has continuous employment with an employer despite
the fact that the employee —
(a) is
employed by the employer under 2 or more contracts of employment; or
(b) is
also employed by another person during the period of employment with the
employer.
(7) 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 part of the employee’s continuous
employment with the employer.
6A. Calculating length of continuous employment
(1) When calculating
the length of continuous employment for the purposes of this Act, a period is
counted if it is any of the following —
(a)
leave referred to in section 6(1) for which the employee has received
payment;
(b) an
absence referred to in section 6(2);
(c) an
absence referred to in section 6(5).
(2) When calculating
the length of continuous employment for the purposes of this Act, a period is
not counted if it is any of the following —
(a)
leave referred to in section 6(1) for which the employee has not received
payment;
(b) an
absence referred to in section 6(3);
(c) a
period between a termination and re-employment referred to in
section 6(4);
(d) in
respect of an employee to whom section 6(7) applies, any period
between —
(i)
the completion of the employee’s apprenticeship;
and
(ii)
the employment of the employee by the employer;
(e) a
period during the transfer of business as defined in section 7D
where —
(i)
the employment of an employee of the old employer as
defined in section 7D has terminated; and
(ii)
the employee has not yet been employed by the new
employer as defined in section 7D.