Details  Created: 06 May 2020

The Industrial Magistrate has ordered that an aged care company pay a worker long service leave entitlements under s 8 Long Service Leave Act 1958 (WA) (LSL Act) after finding that the worker was a casual employee continuously employed for more than 10 years with the same employer.

Section 8 LSL Act provides for an employee entitlement to long service leave of 8 2/3 weeks on ordinary pay in respect of continuous employment of 10 years with one and the same employer.

The Claimant, an industrial inspector, contended that the worker fulfilled the requirements under s 8 LSL Act.

The company questioned whether the worker was an employee of the company or an independent contractor and whether the worker had been continuously employed for more than 10 years as required by the LSL Act.

Flynn IM found, after examining the worker’s contract of employment, relationship with the company and her work schedule, that the worker was a casual employee of the company and not an independent contractor. Flynn IM found that she was not an employee of any client of the company where she worked on a varying placements.

Flynn IM also found, after examining and applying s 6 LSL Act to the facts, that the worker was in continuous employment with the company for more than ten years.

The respondent had argued that, by reason of the nature of casual employment, any period of ‘continuous employment’ by the worker was terminated on a ‘ground other than slackness of trade’ at the end of each client placement. However, Flynn IM found that so long as the worker was available for employment, as required by her contract, she was in continuous employment. He also found that all her non-working periods, including holidays, were each an ‘authorised absence’ under s 6 LSL Act, and that these periods did not disrupt the continuous nature of her employment.

Flynn IM then determined the ‘ordinary pay’ of the worker in light of the definition of that phrase under s 4 LSL Act and then found that she worked, on average, 28.4 hours a week.

The decision can be read here.