Casual employment and long service leave

You may be entitled to long service leave as a casual employee in Victoria. Long service leave generally will differ for each employee depending on which state they work in.

Employees should always check their relevant modern award, enterprise agreement or contract of employment as this may affect entitlements.

Under section 6 of the Long Service Leave Act 2018 (Vic) (the Act), an employee is entitled to 1/60th of their total period of continuous employment with their employer after 7 years of continuous employment with one employer.

For example, if an employee had 15 years of continuous employment with their employer, they would be entitled to 13 weeks’ pay as long service leave. If that same employee’s employment ends after 15 years, and no long service leave has been taken, the employee is entitled to be paid those 13 weeks immediately.

Importantly, these provisions also apply to casual employees. “Employee” is defined in s 3 of the Act as a person employed by an employer to do any work for hire or reward, including casual employees. The Act ensures that casual employees who engage in continuous work are entitled to long service leave after 7 years.

It is important to note, particularly for casual employees, that the period of service of 7 years must be “continuous employment”.

Employment is considered “continuous” under section 12 for casual employees even if:

(a) the casual employee takes a period of paid or unpaid parental leave up to 104 weeks; or

(b) the casual employee is absent for more than 12 weeks provided that the employer and employee agreed to the absence, the absence is due to the terms of the engagement of the casual employee, the absence is caused by seasonal factors or the employee has been employed on a regular and systematic basis with a reasonable expectation of being re-engaged by the employer.

The above circumstances are not exhaustive and sections 12 and 13 of the Act set out other circumstances were employment will be considered continuous.

Importantly, a stand-down direction, whether a JobKeeper enabled direction or direction under section 524 of the Fair Work Act 2009 (Cth), does not break the period of continuous service.

What 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?

Section 6 of the Act establishes that the 7 years of continuous employment must be with “one employer”.

There are circumstances where that employee may have been employed by more than one employer in the strict legal sense. Helpfully, section 11 of the Act sets out several situations where an employee is said to have been employed by “one employer”.

Of importance to casual employees, section 11 provides that an employee is taken to be employed by one employer even if:

1. an employee is employed by an employer (corporation) and a related body corporate (as defined in the Corporations Act 2001 (Cth)) of the employer (corporation) during the relevant period
2. an employee is employed by an employer (corporation) and another corporation if the directors of that other corporation are substantially the same, or the other corporation is under substantially the same management, as the employer (corporation)
3. if the employer’s business ownership transfers and the employee continues in their employment; or
4. if assets of the employer’s business transfer to another employer and the employee continues to perform work for the new employer to whom those assets were transferred, where the employee continues to perform duties with the new employer in connection with those assets that were used to carry on the business of the previous employer.

There are intricacies concerning the meaning of one employer, so it is critically important that you seek legal advice to your specific circumstances to understand your entitlement to long service leave as a casual employee.