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A true casual employee is one whose employment is ad hoc and irregular, where the employee has no reasonable expectation of continuing employment. By contrast, a permanent employee is one whose employment is regular and systematic. This means that the employee has a reasonable expectation of continuing employment. Although your casual employees do not receive paid annual leave or sick leave the way your permanent employees do, they may still be able to get long service leave. This article sets out whether casual employees are entitled to long service leave and the obligations this would impose upon your business.

What is Long Service Leave?

Long service leave rewards employees if they have been working in a company for at least ten years, or seven years in the ACT and Victoria. This entitles them to take paid time off work, acknowledging their loyalty to the business. 

Long service leave is different from other types of leave because the federal government does not legislate it. Rather, each state and territory has its own long service leave legislation. This means that each state or territory has different requirements as to:

  • whether a casual employee is entitled to long service leave;
  • when a casual (or other) employee is entitled to long service leave;
  • the amount of this entitlement;
  • whether employees can access long service leave before ten years of service (or before seven years in the ACT and Victoria); and
  • when the employee has broken their service.

Can Casual Employees Access Long Service Leave In My State or Territority?

We will now consider the states of New South Wales, Queensland, Victoria, the Australian Capital Territory, South Australia and Western Australia to see whether casual employees can get long service leave in these jurisdictions. The plus side is that all of the following states account for casuals. However, you should consider whether any exclusions apply to each specific employee when you are determining who gets long service leave.

New South Wales

Under the Long Service Leave Act 1955 (NSW), employees are entitled to long service leave based on their length of service. ‘Service’ is defined as continuous service regardless of whether the service is on a permanent, casual, part-time or another basis. Therefore, casuals can take long service leave.

Queensland

Similar to NSW, under the Industrial Relations Act 2016 (Qld) employees can get long service leave depending on their length of continuous service. The law specifically provides that an employee’s service is continuous even though:

  • the employee is a casual employee;
  • any of the employment is not full-time employment; or
  • the employee has engaged in other employment during that period.

Importantly, you should carefully consider each individual case because the list above is not exhaustive.

Therefore, casuals can access long service leave. Further, the law includes specific provisions for the calculation of long service leave for casuals.

Victoria

In the Long Service Leave Act 2018 (Vic), employees (defined to include casual employees) can get long service leave if they have been working under continuous employment for seven years. The definition of continuous employment also contemplates casual employees, meaning that they can get long service leave.

Australian Capital Territory

Similarly to Victoria, the definition of employees in the Long Service Leave Act 1976 (ACT) includes casual employees. The law provides that employees are entitled to long service leave if they have completed seven years of service.

South Australia

The Long Service Leave Act 1987 (SA) creates a long service leave entitlement for employees who have ten or more years of service. Although the definition of service makes no specific reference to casuals, it is broad enough to include casual employment. 

Further, the exclusions do not specifically apply to casual employment. Therefore, casual employees are entitled to long service leave in South Australia.

Western Australia

An employee is entitled to long service leave if they have completed ten years of continuous employment. Unlike other states, the Long Service Leave Act 1958 (WA) does not make reference to casual employees in its definition of continuous service. 

However, continuous service is defined broadly and its exclusions do not expressly prevent casuals from accessing long service leave. The law also makes reference to casuals when detailing how you should calculate the long service leave entitlements. On that basis, casual employees in WA are entitled to long service leave.

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True Casual Employees

If you have employed casual employees for a long period of time, you should also consider whether they are true casuals or actually permanent employees. This is especially relevant if you have employed them for a lengthy period which may entitle them to long service leave.

The distinction between casual and permanent employees is a complex one.

In order to determine this, you will take into account factors such as whether:

  • you pay them hourly rates or a salary;

  • they have worked for you for more than 12 months;
  • they work consistent or inconsistent hours;
  • you assign them work according to a roster system;
  • you expect ongoing work availability from them; and
  • you do not have to pay them leave.

This is not an exhaustive list and the courts may also take other factors into account.

Importantly, someone who you employ for a long period of time is more likely to have an: 

  • ongoing expectation of work; and 
  • advance commitment to the period of work.

Engaging an employee as a casual when they are in fact better classified as a permanent employee may create an underpayment liability for you. This is because you are not paying permanent entitlements to the casual employee.

Key Takeaways

Therefore, casual employees can get long service leave in:

  • NSW;
  • Queensland;
  • Victoria;
  • ACT;
  • WA; and
  • SA.

However, each state and territory has specific exclusions, which may apply to a particular employee. This means that you should assess an employee’s entitlement to long service leave on a case-by-case basis. You should also look at the nature of the relationship to ensure that you have correctly classified the employee as a casual rather than a permanent employee. If you do not, this may create an underpayment liability. If you have any questions about whether a particular employee can get long service leave or whether an employee is permanent or a casual, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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