INTERPRETATION OF THE

EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2023

AND

GOVERNMENT SERVICE (MISCELLANEOUS) GENERAL AGREEMENT 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00667

DELIVERED : WEDNESday, 9 August 2023

FILE NO. : APPL 6 OF 2023

Applicant

AND

Director-General, Department of Education

Respondent

CatchWords : Industrial Law (WA) - Interpretation of Agreement - s 46 - Education Assistants’ (Government) General Agreement 2023 - Government Services (Miscellaneous) General Agreement 2023 - Clauses providing long service leave for casual employees - Dispute about the way service should be recognised for the purpose of long service leave under the casual LSL clauses - What is ‘continuous service’? - Whether clauses are ambiguous - Ordinary meaning of continuous service - Whether service includes pre-registration service - Declaration issued

Legislation : Industrial Relations Act 1979 (WA)

Long Service Leave Act 1958 (WA) 

Result : Declaration issued

Representation:

Applicant : United Workers Union

Respondents : State Solicitor’s Office

Case(s) referred to in reasons:

Australian Boot Trade Employees’ Federation v The Commonwealth [1954] HCA 9; 90 CLR 24; [1954] ALR 321

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473

United Workers Union v Child and Adolescent Health Service & Ors [2023] WAIRC 00666

Reasons for Decision

1         The abbreviations used in these reasons are defined in the list at the end of the reasons.

2         This matter was determined on the papers together with United Workers Union v Child and Adolescent Health Service & Ors [2023] WAIRC 00666 concerning agreements in the Western Australian health system. These reasons should be read with the reasons in that matter.

3         As with the health system matter, UWU, as a party to relevant industrial agreements that cover the Western Australian education system brought this application under s 46 of the IR Act, seeking a declaration as to the correct interpretation of casual LSL clauses in:

(a) the Education Assistants Agreement; and

(b) the Government Services Agreement.

4         The Director-General, Department of Education, is the Employer party to the Education Assistants Agreement. Some 20 government agencies are the employer parties to the Government Services Agreement. All of the respondent employers were represented by the State Solicitor’s Office. I refer to them collectively as the Employers.

5         The parties agreed that the question for the Commission to decide in this matter is:

What is the true interpretation of the following clauses?

(a) Clause 13.5 of the Education Assistants' (Government) General Agreement 2023 (AG 20/2022).

(b) Clause 52.4 of the Government Services (Miscellaneous) General Agreement 2023 (AG 23/2022).

6         The core elements of the casual long service leave entitlements in each of the agreements are, very broadly, the same as those in the casual LSL clauses considered in the health system matter: an entitlement to take 13 weeks’ paid long service leave on the completion of 10 years continuous service and an additional 13 weeks paid long service leave for each subsequent period of completed continuous service.

7         Broadly, UWU and the Employers made the same submissions in relation to construction of the casual LSL clauses as the UWU and HSPs in health system matter respectively did. UWU says ‘continuous service’ has its common sense, plain English meaning. The Employers say ‘continuous service’ means only qualifying service since the registration of the industrial agreement which first contained a casual LSL clause.

8         However, there are some important differences in this matter compared with health system matter. They include:

(a) the text of the relevant casual LSL clauses;

(b) the casual LSL clauses’ location in the structure of the agreements; and

(c) the agreements’ interaction with other industrial instruments.

9         I must separately construe the casual LSL clauses in their particular context, applying the principles set out in the APPL 5 Reasons.

The Education Assistants Agreement

10      The Education Assistants Agreement covers education assistants in the Western Australian education system.

11      It was registered under s 41 of the IR Act.

12      It is arranged in 12 parts and 77 clauses. Relevantly, Part 1 is headed ‘Application of Agreement’, Part 2 ‘General Terms of Employment’ and Part 6 ‘Leave of Absence’.

13      The purpose of the Education Assistants Agreement is expressed as being to provide wage increases and core employment conditions together with applicable Awards. To that end, the agreement is expressed to be read in conjunction with the Teachers’ Aides’ Award and the Miscellaneous Government Conditions and Allowances Award: cl 5.3.

14      At the time of registration, it was estimated the agreement covered 11,859 education assistants: cl 5.2.

15      The registration of the Education Assistants Agreement had the effect of cancelling and replacing the 2021 Education Assistants Agreement: IR Act s 41(8).

16      Various terms and conditions of the Education Assistants Agreement are service related. For example, the requirement for employer notice of termination is scaled depending on the employee’s period of ‘continuous service’ from not more than 1 year to more than 5 years continuous service: cl 18.3.

17      Unsurprisingly, many of the leave provisions of the Education Assistants Agreement are also service related: ‘Personal Leave’ cl 43, ‘Maternity Leave’ cl 58, ‘Adoption Leave’ cl 59, and ‘Other Parent Leave’ cl 60, all refer to ‘continuous service’ as a condition for the relevant leave entitlement.

18      In Part 2 ‘General Terms of Employment’, cl 13 of the Education Assistants Agreement deals with casual employment, including long service leave for casual employees, at cl 13.5:

13. CASUAL EMPLOYMENT

13.1 A casual Employee means an Employee engaged on an hourly basis in a specified position for a period not exceeding four weeks in any school, centre or site.

13.2 Casual employees will receive a 25% loading in lieu of personal leave and any student vacation time.

13.3 …

13.4 …

13.5 A casual Employee shall become entitled to 13 weeks’ long service leave after a period of 10 years’ continuous service and each further period of seven years’ continuous service, in accordance with clause 54 of this General Agreement.

19      Clause 54 is headed ‘Long Service Leave Flexibilities’. It appears under Part 6 ‘Leave of Absence’. It does not purport to be the exclusive source of regulation of the entitlement to long service leave. Rather, it is to be read in conjunction with cl 12 ‘Long Service Leave’ of the Teachers’ Aides’ Award and the General Order.

20      Clause 54 is lengthy, but its text is important to the resolution of this matter. Rather than set out the text here, it is included in these reasons as an appendix.

21      Some particular points of note about cl 54 include:

(a) It is to be read in conjunction with cl 12 ‘Long Service Leave’ of the Teachers’ Aides’ Award and General Order: cl 54.1.

(b) The agreement prevails over the General Order where there is inconsistency: cl 54.2.

(c) It provides 13 weeks’ long service leave after 10 years continuous service and after each subsequent period of 7 years: cl 54.3.

(d) It expressly deals with how the entitlement must be determined for casual employees: cl 54.20(a). This clause includes deeming certain absences to count as service, and certain employment with other public sector employers to count as service.

(e) It expressly deals with periods of casual employment that will not count as service: cl 54.20(b).

(f) It expressly deems service of casual employees not to be broken in some circumstances: cl 54.20(c).

22      Clause 54 incorporates the provisions of cl 12 of the Teachers’ Aides’ Award and the General Order. It is therefore necessary to refer to those as well.

23      Clause 12 of the Teachers’ Aides’ Award provides:

12. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave to government wages employees generally shall apply to workers covered by this award. Provided that any day referred to in Clause 7. - Holidays of this award, on which the worker is relieved of the obligation to present herself for work shall be deemed to be ‘service’ for the purpose of those conditions.

24      ‘Continuous service’ is not a term that is defined, or indeed used, in the Teachers’ Aides’ Award.

25      The General Order is attached as an appendix to these reasons. Of particular note:

(a) Clause 1 refers to the treatment of qualifying service prior to 1 January 1986 and qualifying service after that date, for the purpose of the second period of long service leave.

(b) Clause 2(a) enlarges the meaning of ‘service’ by deeming various absences to be included as service.

(c) Clause 2(b) qualifies the meaning of ‘service’ by deeming certain situations not to be service, including, at clause 2(b)(iii), any period during which an employee has been paid as a casual.

(d) Clause 3 sets out situations where service is deemed not to be broken.

(e) Clause 6 provides that long service leave must be commenced within 6 months of becoming due and that where leave is taken in more than one portion, the final portion must be taken within 3 years of it becoming due.

(f) Clause 11 provides for payment of pro rata long service leave on termination of employment in six qualifying circumstances, some of which require a minimum period of ‘continuous service’.

26      Casual long service leave was provided for in the 2021 Education Assistants Agreement, which the Education Assistants Agreement replaced, in substantially the same terms as the Education Assistants Agreement.

27      It is uncontroversial that no industrial agreement prior to 2021 provided for long service leave for casual employees.

28      For completeness, the entitlement as contained in an industrial agreement commenced on 4 February 2021 when the 2021 Education Assistants Agreement was registered. That is because, until the 2021 Education Assistants Agreement, there was no inconsistency between the industrial agreement and the Teachers’ Aides’ Award and General Order in relation to casual employees, so that the exclusion of periods of casual employment in cl 2(b)(iii) of the General Order effectively excluded casual employees from the entitlement.

Is there ambiguity in cl 13.5?

29      In the APPL 5 Reasons, I considered whether there was ambiguity in casual LSL clauses in the Enrolled Nurses Agreement and the Hospital Support Workers Agreement. I concluded that the phrase ‘continuous service’ in the relevant clauses of those agreements was not ambiguous, but carried its ordinary meaning.

30      The core of the Employers’ case is that the words are ambiguous in light of the history of the agreements, and in particular the fact that until the introduction of a long service leave entitlement for casuals in industrial agreements, casuals were entitled to long service leave under the LSL Act. Its case is that because there was previously an entitlement, albeit less favourable, continuous service for the purpose of the agreement excluded continuous service during the period that the LSL Act governed long service leave entitlements.

31      The Employers’ case is that ‘continuous service’ means continuous service from the date of registration of the 2021 Education Assistants Agreement, that is, that it excludes service prior to the date of registration of the 2021 Education Assistants Agreement.

32      In the APPL 5 Reasons, I rejected this construction as being a construction that the words were incapable of bearing.

33      The same considerations apply in this case. I do not consider the phrase ‘continuous service’ in the Education Assistants Agreement is ambiguous. Nor are the words capable of having the meaning the Employers contend for.

34      UWU also relied on its submissions in the health system matter to contend that the words ‘continuous service’ in the Education Assistants Agreement also bear their ordinary common sense meaning. In the APPL 5 Reasons, I ultimately agreed with UWU’s contended for construction.

35      It does not automatically follow, that the same, ordinary meaning must be given to the words ‘continuous service’ in the Education Assistants Agreement.

36      As observed earlier, the casual LSL clause in the Education Assistants Agreement is different in both its text and its context. Most significantly, cl 13.5 provides that the entitlement to long service leave is ‘in accordance with’ cl 54. The words ‘in accordance with’ can mean either:

(a) in conformity with, in harmony with; or

(b) consistently with, or covered by, under;

see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473 per Tracey J at [81]-[84] and Australian Boot Trade Employees’ Federation v The Commonwealth [1954] HCA 9; 90 CLR 24; [1954] ALR 321 per Dixon CJ at [4].

37      Because cl 13.5 appears in Part 2 ‘General Terms of Employment’, whereas cl 54 appears under Part 6 ‘Leave of Absence’, the reference to long service leave being ‘in accordance with’ cl 54, means that long service leave is covered by, or provided under cl 54, not cl 13.5.

38      Clause 13.5 is just a flag that casual employees are entitled to long service leave, that is, that status as a casual employee does not exclude employees from the entitlement to long service leave.

39      Although the question referred concerns the meaning cl 13.5, the more pertinent question is the meaning of cl 54; that being the source of the long service leave entitlement.

40      Clause 54 expressly enlarges and qualifies what service counts as continuous service for the purpose of long service leave including in the case of casual employees.

41      The fact that cl 54 does so essentially leaves no room for the implication of any other qualifications that are not expressed. The conclusion that service does not mean service limited to an agreement registration date is all the more compelling.

42      Another obvious reason that the meaning of ‘continuous service’ cannot be the Employers’ contended for meaning is that it requires the one phrase to bear two different meanings in cl 54. The phrase cannot mean one thing for casual employees, and something else for non-casual employees. And there is no suggestion that service in cl 54 means service from the date of registration in relation to non-casual employees.

43      Clause 52.20 extends the meaning of ‘service’ to deem it includes periods of employment in the service of the Commonwealth or another State. This suggests the parties had contemplated service prior to registration of the agreement.

44      The Employers say that the deeming provisions in cl 54.20 which provide that some service is not counted as service supports the construction that service can only mean service from the date of registration. Their written submissions state:

86. In addition to those submissions, further textual support for the respondent’s construction is provided by the cl 54.20(b) which provides that “service” is deemed not to include service after the day on which the employee has become entitled to 26 weeks’ long service leave until the day on which they commence the taking of 13 weeks’ of that leave. If the term “service” in cl 13.5 was construed to mean service provided before and after registration, it is possible that immediately upon registration some casual employees will be entitled to 26 weeks’ long service leave and therefore their service will immediately be deemed not to be good service for the purposes of cl 13.5. This would arise through no fault of their own, but merely because it is unlikely to be practicable for casual employees to commence long service leave immediately on registration of the Agreement.

45      There are three reasons why this submission does not advance the Employers’ case.

46      First, the fact that the clause itself contemplates the possibility of an employee having an entitlement to take 26 weeks long service leave means that the parties intended continuous service to include pre‑registration service. If service does not mean pre‑registration service, then it would be impossible for an employee to have accrued an entitlement to 26 weeks long service leave under the Education Assistants Agreement, let alone the 2021 Education Assistants Agreement.

47      Second, there is no reason to consider this practical consequence is unintended. Even if an employee has accrued a long service leave entitlement of 26 weeks’, the entitlement to take the leave is not lost. While their service ceases to count towards the next accrued entitlement, they gain a greater period of long service leave than they would have had under the LSL Act. There is no reason to conclude this is not a commercially sensible trade‑off, or that it is contrary to the parties’ objective intention.

48      Third, as UWU points out, the practical consequence is not directly related to the meaning of ‘service’ anyway. Whatever ‘continuous service’ means, an entitlement to take 26 weeks’ long service leave will have the effect of stalling the start of the next period of service towards the next long service leave entitlement.

49      There is another difference between the Education Assistants Agreement and the health system agreements which has some significance. It is that the structure of the Education Assistants Agreement locates the source of casual long service leave entitlements within the same clause as the source of long service leave for non‑casual employees. This is indicative of an intention to align the entitlements of casual and non‑casual employees more closely.

50      Although there are differences between the Education Assistants Agreement and the health system agreements, they are not differences which advance the Employers’ contended for construction.

The Government Services Agreement

51      The Government Services Agreement was registered under s 41 of the IR Act.

52      The Government Services Agreement is divided into eight parts and 66 clauses. Relevantly, Part 1 is headed ‘Application of Agreement’, Part 2 is headed ‘Types of Employment’ and Part 4 is headed ‘Leave of Absence’.

53      The purpose of the Government Services Agreement is to provide wage increases and, in conjunction with nine relevant awards, core employment conditions.: cl 4.1.

54      The Government Services Agreement applies to all employees who are eligible to be members of the UWU and who are covered by the nine awards listed in cl 7.1: cl 5.3.

55      At the time of registration, it was estimated the Government Services Agreement covered 4,674 employees: cl 5.3.

56      The registration of the Government Services Agreement had the effect of cancelling and replacing the 2021 Government Services Agreement: cl 5.1; IR Act, s 41(8).

57      In Part 2 ‘Types of Employment’, cl 11.3 provides that a person may be appointed on a casual basis.

58      Clause 17 deals with casual employment specifically:

17. Casual Employment

17.1. A casual Employee shall mean an Employee engaged on an hourly basis for a period not exceeding four weeks in any workplace.

17.2. Casual Employees shall receive a casual loading of 25% in lieu of annual and personal leave and public holidays.

17.3. The employment of a casual Employee may be terminated at any time by the casual Employee or the Employer giving to the other, one hour's prior notice. In the event of the Employer or the casual Employee failing to give the required notice, one hour's wages shall be paid or forfeited.

17.4. This clause shall not apply to Employees covered by the Catering Employees and Tea Attendants (Government) Award 1982.

59      Various terms and conditions contained in the agreement are service related. For example, the requirement for employer notice of termination is scaled depending on the employee’s period of ‘continuous service’ from not more than 1 year to more than 5 years continuous service: cl 20.3.

60      Several leave provisions are also service related: ‘Maternity Leave’ cl 41, ‘Adoption Leave’ cl 42, ‘Other Parent Leave’ cl 43 and ‘Personal Leave’ cl 47, each refer to ‘continuous service’ as a condition for the relevant leave entitlement.

61      Annual leave is dealt with by the applicable awards, most of which also condition the entitlement on ‘continuous service’.

62      Clause 52 is titled ‘Long Service Leave’. It appears under Part 4 ‘Leave of Absence’. It does not purport to be the exclusive source of regulation of the entitlement to long service leave. Rather, it is to be read in conjunction with the long service leave provisions of the relevant award and the General Order.

63      Again, because the clause is lengthy, but important, it is set out in its entirety in an appendix to these reasons.

64      Notably:

(a) The agreement prevails over the General Order where there is inconsistency: cl 52.3.

(b) Clause 52.4 sets out casual employee entitlements in these terms:

A casual Employee shall become entitled to 13 weeks’ long service leave after a period of 10 years’ continuous service and each further period of seven years’ continuous service, in accordance with clause 52 of this Agreement.

(c) Clause 52.12 states part time and casual employees have the same entitlement as full time employees.

(d) Clause 52.20 is headed ‘Casual Employees application of long service leave and interaction with the General Order’. In this clause, ‘service’ is deemed to include various absences and employment with other employers: cl 52.20(a). Service is deemed not to include specified absences: cl 52.20(b), and certain circumstances are deemed not to break service: cl 52.20(c).

(e) The period from the day after an employee becomes entitled to 26 weeks’ long service leave to the day they commence taking 13 weeks of that leave is not counted as service: cl 52.20(b)(i).

65      The relevant long service leave provisions of each of the nine awards referenced by cl 52 are set out in an appendix to these reasons. All but one, refer, in turn, to the General Order, which is set out in an appendix to these reasons.

66      Relevant observations about the General Order are set out in paragraph [25] above.

67      Casual long service leave was provided for in the 2021 Government Services Agreement, which the Government Services Agreement replaced, in substantially the same terms as the Government Services Agreement.

68      It is uncontroversial that no earlier industrial agreement provided for long service leave for casual employees.

Is there ambiguity in cl 52.4?

69      My reasons concerning the Education Assistants Agreement apply equally to the Government Services Agreement and lead me to the same conclusion that there is no ambiguity in cl 52.4’s references to ‘continuous service’.

Conclusion: What is the true interpretation of the casual LSL clauses?

70      For the above reasons and those expressed in the APPL 5 Reasons, I propose making the following declarations:

(a) That the true interpretation of ‘continuous service’ in clause 13.5 of the Education Assistants’ (Government) General Agreement 2023 is continuous service under clause 54 of the Education Assistants’ (Government) General Agreement 2023.

(b) That the true interpretation of ‘continuous service’ in clause 52.4 of the Government Services (Miscellaneous) General Agreement 2023 is a period of unbroken service to the employer by an employee and the periods specified in clause 52.20(a) and qualified by clause 52.20(c) but does not include the periods specified in clause 52.20(b).

List of Abbreviations

Appendix 1

Clause 54 of the Education Assistants’ (Government) General Agreement 2023

54. LONG SERVICE LEAVE FLEXIBILITIES

54.1 This Clause is to be read in conjunction with Clause 12 – Long Service Leave of the Teachers’ Aides’ Award 1979 and the General Order.

54.2 Where provisions of the General Order are inconsistent with this General Agreement the provisions of this General Agreement prevail.

54.3 An Employee shall become entitled to 13 weeks’ long service leave after a period of 10 years’ continuous service and each further period of seven years’ continuous service, in accordance with clause 54 of this General Agreement.

54.4 A part-time Employee who qualifies for accrued long service leave or early access to pro-rata long service leave shall be paid that entitlement according to the variation to their hours worked over the applicable accrual period.

54.5 Employees may, by agreement with their Employer, clear any accrued entitlement to long service leave, or long service leave accessed pursuant to subclause 54.10, in minimum periods of one day.

54.6 Notwithstanding clause 6 of the General Order, an employee may retain up to five days of a long service leave credit to be available until their next entitlement of long service leave is accrued. At this time, if there is any credit remaining, it will be cashed out.

Long Service Leave on Half Pay

54.7 Subject to the Employer’s convenience, the Employer may approve an Employee’s application to take an accrued entitlement to long service leave on half pay.

Long Service Leave on Double Pay

54.8 Employees may by agreement with their Employer, access any portion of an accrued entitlement to long service leave on double pay for half the period accrued. In these circumstances the leave actually taken is 50 percent of the accrued entitlement accessed.

54.9 Where Employees proceed on long service leave on double pay in accordance with subclause 54.8, the entitlement accessed is excised for the purpose of continuous service in accordance with the General Order.

Early Access to Pro-Rata Long Service Leave

54.10 Casual Employees shall qualify for pro-rata payment in lieu of leave pursuant to Clause 11 of the General Order.

54.11 Subject to subclause 54.13, Employees within seven years of their preservation age under Western Australian Government superannuation arrangements may, by agreement with their Employer, choose early access to their long service leave at the rate of:

(a) 6.5 days per completed twelve-month period of continuous service for full time employees in their first period of long service leave accrual; or

(b) 9.28 days per completed twelve month periods of continuous service for full time employees in subsequent periods of long service leave accrual.

54.12 Part time Employees have the same entitlement as full time Employees.

(a) For part time Employees, their entitlement is calculated on a pro-rata basis according to any variations to their ordinary working hours during the accrual period.

(b) For casual Employees, their entitlement is calculated on a pro-rata basis according to the average hours worked during the accrual period.

54.13 Early access to pro-rata long service leave does not include access to long service leave to which the Employee has become entitled or accumulated prior to being within seven years of their preservation age.

54.14 Under this clause, pro-rata long service leave can only be taken as paid leave and there is no capacity for payment in lieu of leave.

54.15 Early access to pro-rata long service leave can be taken at half or double pay in accordance with subclauses 54.7, 54.8 and 54.9.

54.16 Where Employees access pro-rata long service leave early, any period of leave taken will be excised for the purpose of continuous service in accordance with the General Order.

Cash Out of Accrued Long Service Leave Entitlement

54.17 Employees may by agreement with their Employer, cash out any portion of an accrued entitlement to long service leave.

54.18 Casual Employees who agree to cash out accrued long service leave entitlement will receive that payment at the rate of pay applicable to the last engagement with the Employer, including the loading prescribed at clause 13.2.

54.19 Where an Employee cashes out any portion of an accrued entitlement to long service leave in accordance with subclause 54.16, the entitlement accessed is excised for the purpose of continuous service in accordance with the General Order.

Casual Employees application of long service leave and interaction with the General Order

54.20 A casual Employee’s entitlement to long service leave as provided at clause 54.3 of this General Agreement shall be determined in the following manner:

(a) For the purposes of this clause ‘service’ shall be deemed to include:

(i) absence of the casual Employee on approved unpaid carer’s leave and unpaid parental leave not exceeding 14 days;

(ii) absence of the casual Employee on workers’ compensation for any period not exceeding six months, or for such greater period as the Minister for Industrial Relations may allow;

(iii) absence of the casual Employee on family and domestic violence leave, bereavement leave and long service leave;

(iv) absence of a casual Employee on approved leave to attend Trade Union training courses or on approved leave to attend Trade Union business; and

(v) employment in the service of the Commonwealth or another State of Australia as provided in clause 16 of the General Order.

(b) The service of an employee shall be deemed NOT to include:

(i) service of an employee after the day on which they have become entitled to 26 weeks’ long service leave until the day on which they commence the taking of 13 weeks of that leave; and

(ii) any other absence of the Employee except such absences as are provided in service by virtue of subclause (a).

(c) Subject to subclause (a) and (b), the service of a casual Employee shall not be deemed to have been broken:

(i) by resignation if they resign from one Public Authority in this State and commences with another Public Authority in this State within one working week of the day on which this resignation became effective; or

(ii) if their employment is ended by the Employer for any other reason other than serious misconduct but only if the Employee resumes employment with the Government not later than six months from the day on which their employment has ended and payment pursuant to clause 11 of the General Order has not been made.

54.21 Any accrued long service leave entitlement is calculated on the average weekly hours worked by the Employee of the entire qualifying period.

54.22 A casual Employee shall be paid during long service leave the rate of pay applicable to the last engagement with the Employer, including the loading prescribed at clause 13.2.

54.23 Further to clauses 54.20 to 54.22, clauses 4 to 13, 15 and 16 of the General Order apply to the accrual and taking of long service leave by a casual Employee as if those clauses were part of this General Agreement.

Appendix 2

Clause 52 of the Government Services (Miscellaneous) General Agreement 2023

52. Long Service Leave

52.1. For the purposes of this clause:

(a) “Employee” includes full time, part time, permanent, fixed term contract and casual employees.

(b) “General Order’ means General Order No. 763 of 1982 Long Service Leave Conditions - State Government Wages Employees (66 W.A.I.G 319).

52.2. This clause is to be read in conjunction with the long service leave provisions of the relevant Award and the General Order.

52.3. Where the provisions of the General Order are inconsistent with this Agreement, the provisions of this Agreement will prevail.

52.4. A casual Employee shall become entitled to 13 weeks’ long service leave after a period of 10 years’ continuous service and each further period of seven years’ continuous service, in accordance with clause 52 of this Agreement.

52.5. Employees may, by agreement with their Employer, clear any accrued entitlement to long service leave including long service leave accessed pursuant to subclause 52.9, in minimum periods of one day.

52.6. Subclause 52.4 shall not apply to Employees covered by the Cultural Centre Award 1987 who will accrue long service leave in accordance with clause 14 of the Cultural Centre Award 1987.

Long Service Leave on Half Pay

52.7. Subject to the Employer’s convenience, the Employer may approve an Employee’s application to take an accrued entitlement to long service leave on half pay.

Long Service Leave on Double Pay

52.8. Employees may by agreement with their Employer, access any portion of an accrued entitlement to long service leave on double pay for half the period accrued. In these circumstances the leave actually taken is 50 percent of the accrued entitlement accessed.

52.9. Where Employees proceed on long service leave on double pay in accordance with subclause 52.8, the entitlement accessed is excised for the purpose of continuous service in accordance with the General Order.

Early Access to Pro Rata Long Service Leave

52.10. Casual Employees shall qualify for pro rata payment in lieu of leave pursuant to Clause 11 of the General Order.

52.11. Subject to subclause 52.13, Employees within seven years of their preservation age under Western Australian Government superannuation arrangements may, by agreement with their Employer, choose early access to their long service leave at the rate of:

(a) 6.5 days per completed twelve month period of continuous service for full time Employees in their first period of long service leave accrual; or

(b) 9.28 days per completed twelve month periods of continuous service for full time Employees in subsequent periods of long service leave accrual.

52.12. Part time and causal Employees have the same entitlement as full time Employees.

(a) For part time Employees their entitlement is calculated on a pro rata basis according to any variations to their ordinary working hours during the accrual period.

(b) For casual Employees, their entitlement is calculated on a pro rata basis according to the average hours worked during the accrual period.

52.13. Early access to pro rata long service leave does not include access to long service leave to which the Employee has become entitled, or accumulated prior to being within seven years of their preservation age.

52.14. Under this clause, long service leave can only be taken as paid leave and there is no capacity for payment in lieu of leave.

52.15. Early access to pro rata long service leave can be taken at half or double pay in accordance with subclauses 52.7, 52.8 and 52.9.

52.16. Where Employees access pro rata long service leave early, any period of leave taken will be excised for the purpose of continuous service in accordance with the General Order.

Cash Out of Accrued Long Service Leave Entitlement

52.17. Employees may by agreement with their Employer, cash out any portion of an accrued entitlement to long service leave, provided the Employee proceeds on a minimum of ten days annual leave in that anniversary year.

52.18. Where Employees cash out any portion of an accrued entitlement to long service leave in accordance with subclause 52.17, the entitlement accessed is excised for the purpose of continuous service in accordance with the General Order.

52.19. Casual Employees who agree to cash out accrued long service leave will receive that payment at the rate of pay applicable to the last engagement with the Employer, including the loading prescribed in subclause 17.2.

Casual Employees application of long service leave and interaction with the General Order

52.20. A casual Employee's entitlement to long service leave as provided at subclause 52.4 of this General Agreement shall be determined in the following manner:

(a) For the purposes of this clause “service” shall be deemed to include:

(i) absence of the casual Employee on approved unpaid carer's leave and unpaid parental leave not exceeding 14 days;

(ii) absence of the casual Employee on workers' compensation for any period not exceeding six months, or for such greater period as the Minister for Industrial Relations may allow;

(iii) absence of the casual Employee on family and domestic violence leave, bereavement leave and long service leave;

(iv) absence of a casual Employee on approved leave to attend Trade Union training courses or on approval leave to attend Trade Union business; and

(v) employment in the service of the Commonwealth or another State of Australia as provided in clause 16 of the General Order.

(b) The service of an employee shall be deemed NOT to include:

(i) service if an employee after the day on which they have become entitled to 26 weeks' long service leave until the day on which they commence the taking of 13 weeks of that leave; and

(ii) any other absence of the Employee except such absences as are provided in service by virtue of subclause (a).

(c) Subject to subclause (a) and (b), the service of a casual Employee shall not be deemed to have been broken:

(i) by resignation if they resign from one Public Authority in this State and commence with another Public Authority in this State within one working week of the day on which this resignation became effective; or

(ii) if their employment is ended by the Employer for any other reason other than serious misconduct but only if the Employee resumes employment with the Government not later than six months from the day on which their employment has ended and payment pursuant to clause 11 of the General Order has not been made.

52.21. Any accrued LSL entitlement is calculated on the average weekly hours worked by the employee of the entire qualifying period.

52.22. A casual Employee shall be paid during long service leave the rate of pay applicable to the last engagement with the Employer, including the loading prescribed at clause 17.2.

52.23. Further to clauses 52.20 to 52.22, clauses 4 to 13 and 16 of the General Order apply to the accrual and taking of long service leave by a casual Employee as if those clauses were part of this General Agreement.

Appendix 3

Referenced Awards’ Long Service Leave Clauses

Auxiliary Staff Residential Colleges (Government) Award 2021

11. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave due to full-time government wages employees generally shall apply to employees covered by this award. Provided that all time during term student vacation periods when the employee cannot be usefully employed shall count as service for the purposes of those conditions.

Catering Employees and Tea Attendants (Government) Award 1982

20. - LONG SERVICE LEAVE

The conditions governing the granting of Long Service Leave to government wages employees generally shall apply to employees covered by this award.

Children's Services (Government) Award 1989

14. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave to government wages employees generally shall apply to employees covered by this Award.

Cleaners and Caretakers (Government) Award 1975

6.5. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave to government wages employees generally shall apply to employees covered by this award.

Community Welfare Department Hostels Award 1983

11. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave due to full-time government wages employees generally shall apply to workers covered by this award. Provided that all time during term vacation periods when the worker cannot be usefully employed shall count as service for the purposes of those conditions.

Cultural Centre Award 1987

14. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave to government wages employees generally shall apply to employees covered by this award except that long service leave shall accrue at the rate of three months' leave for each seven year period of continuous service.

Gardeners (Government) 1986 Award

15. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave to Government wages employees generally shall apply to employees covered by this award.

Miscellaneous Government Conditions and Allowances Award 1992

This award contains no long service leave clause.

Recreation Camps (Department for Sport and Recreation) Award 1975

14. - LONG SERVICE LEAVE

(1) The conditions governing the granting of long service leave to Government wages employees generally shall apply to employees covered by this award.

(2) When an employee proceeds on long service leave, there shall be no accrual towards an accrued day off in accordance with the provisions of subclause (1) of Clause 6. - Hours of this award nor any credit accumulated for such periods of leave.

Appendix 4

General Order No. 763 of 1982

Long Service Leave Conditions - State Government Wages Employees (66 WAIG 319)

…

Long Service Leave Conditions.

State Government Wages Employees.

1. Subject to the conditions hereinafter prescribed all Government wages employees employed by a Public Authority shall become entitled to 13 weeks' long service leave:

(a) after a period of 10 years' continuous service; and

(b) after each further period of seven years' continuous service.

The long service leave prescribed in this clause may, by consent between the employer, the employee and the employee's union be taken in more than one portion provided that no portion shall be less than four consecutive weeks.

Provided further that these conditions shall have no application to employees who are subject to long service leave entitlements on an industry basis or wage employees who at the date of this order, or subsequent to this order, receive long service leave conditions which, when viewed as a whole, are more favourable than the conditions specified in this order.

Any qualifying service prior to 1 January 1986 for the second period of long service leave, shall be calculated on a 10 year qualifying period basis but all qualifying service after 1 January 1986 shall be calculated on a seven year qualifying period basis.

2. 

(a) For the purpose of these conditions "service" means service as an employee of a Public Authority and . shall be deemed to include:-

(i) absence of the employee on annual leave or public holidays;

(ii) absence of the employee on paid sick leave or on an approved rostered day off;

(iii) absence of the employee on approved sick leave without pay except that portion of a continuous absence which exceeds three months. Provided that prior to I July 1957 only two weeks in any year shall be allowed and provided that prior to I April 1974 and after 1 July 1957 only six weeks in any year shall be allowed;

(iv) absence of the employee on approved leave without pay, other than sick leave without pay but not exceeding two weeks in any qualifying period;

(v) absence of the employee on National Service or other military training, but only if the difference between the employees' military pay and his civilian pay is made up, or would, but for the fact that his military pay exceeds his civilian pay, be made up by his employer;

(vi) absence of the employee on workers' compensation for any period not exceeding six months, or for such greater period as the Minister for Industrial Relations may allow;

(vii) absence of the employee on long service leave which accrues on or after 1 April 1974;

(viii) absence of an employee on approved leave to attend Trade Union training courses or on approved leave to attend Trade Union business; and

(ix) employment in the service of the Commonwealth or another State of Australia as provided in Clause 16 hereof, when employment in the State Government commences on or after 1 April 1974.

(b) The Service of an employee shall be deemed NOT to include:-

(i) service of an employee after the day on which he has become entitled to 26 weeks' long service leave until the day on which he commences the taking of 13 weeks of that leave;

(ii) any period of service with an employer of less than 12 months . Provided where after 1 April 1974 an employee has service of a month or more but less than 12 months immediately prior to being transferred by one State Government employer to another; becoming redundant or qualifying for pro rata payment in lieu of leave pursuant to Clause 11, then such period of service shall count;

(iii) any period during which an employee has been paid as a casual;

(iv) any other absence of the employee except such absences as are included in service by virtue of subclause (a) hereof; and

(v) any service of an employee prior to 1 April 1974 where that employee was less than 18 years of age.

3. Subject to the provisions of Clause 2 of these conditions the service of an employee shall not be deemed to have been broken –

(a) by resignation, if he resigns from one Public Authority in this State and commences with another Public Authority in this State within one working week of the expiration of any period for which payment in lieu of annual leave and/or public holidays has been made by the employer from which he resigned, or, if no such payment has been made, within one working week of the day on which his resignation became. effective;

(b) if his employment is ended by his employer for any reason other than serious misconduct, but only if –

(i) the employee resumes employment with the Government not later than six months from the day on which his employment was ended; and

(ii) payment pursuant to Clause 11 of these conditions has not been made; or

(c) by any absence approved by the employer as leave whether with or without pay.

4. Application for leave without pay in respect of any absence must be made before the commencement of the absence unless the cause of the absence occurs after the employee has left the job, in which case the application must be made not later than 14 days after the day on which the employee resumes work.

5. Long service leave shall be taken at a time convenient to the employer but not less than 30 days' notice shall be given to each employee of the day on which his long, service leave is to commence, except in cases where the employee and the employer agree to a lesser period of notice, or in other exceptional circumstances.

6. Long service leave must be commenced within six months of becoming due unless written permission of the employer concerned is obtained for postponement, but where the postponement sought is for more than 12 months, the approval of the Minister for Industrial Relations must be obtained . Provided that where an employer and an employee have agreed that the leave period will be taken in more than one portion the final portion of leave must be taken within three years of its becoming due, unless the approval of the Minister for Industrial Relations has been obtained to extend the period.

7. Any public holiday occurring during an employee's absence on long service leave shall be deemed to be a portion of the long service leave and extra days in lieu thereof shall not be granted.

8. No employee is to undertake during long service leave, without the written approval of the Minister for Industrial Relations, any form of employment for hire or reward . Contravention of this clause may be followed by dismissal.

9. An employee who has become entitled to long service leave in accordance with Clause 1 of these conditions and whose employment is ended before that leave is taken shall be granted payment in lieu of that leave, unless he has been dismissed for an offence committed prior to the day on which he became entitled to that leave.

10. If an employee who has become entitled to Long Service Leave in accordance with Clause 1 of these conditions dies before taking that leave, payment in lieu of that leave shall be made to that employee's estate unless the employee leaves a spouse, children, parent or invalid brother or sister dependent on him. In which case such payment shall be made to such spouse or other dependant.

11. If the employment of an employee ends before he has completed the first or further qualifying periods in accordance with Clause 1 of these conditions, payment in lieu of long service leave proportionate to his length of service shall not be made unless the employee –

(a) has completed a total of at least three years' continuous service and his employment has been ended by his employer for reasons other than serious misconduct ; or

(b) is not less than 55 years of age and resigns, but only if the employee has completed a total of not less than 12 months' continuous service prior to the day from which the resignation has effect; or

(c) has completed a total of not less than 12 months'. continuous service and his employment' is ended by his employer on account of incapacity due to old age, ill health or the result of an accident; or

(d) has completed a total of not less than three years' continuous service and resigns or whose services are terminated because of her pregnancy after 1 April 1974 and who produces at the time of resignation or termination certification of such pregnancy and the expected date of birth from a legally qualified medical practitioner; or

(e) dies after having served continuously for not less than 12 months before his death and leaves a spouse, children, parent or invalid brother or sister dependent on him in which case the payment shall be made to such spouse or other dependant; or

(f) has completed a total of not less than three years' continuous service and resigns in order to enter an Invitro Fertilisation Programme provided she produces written confirmation from an appropriate medical authority of the dates of involvement in the programme.

12. 

(a) Notwithstanding the provisions of subclauses (a) and (c) of Clause 11, a worker whose position has become redundant and who refuses an offer by the employer of reasonable alternative employment or who refuses to accept a transfer in accordance with the terms of his employment, shall not be entitled to payment in lieu of long service leave proportionate to his length of service.

(b) Any dispute as to whether the alternative employment offered is reasonable shall be determined by the Long Service Leave Appeal Committee.

13. For the purpose of subclause (c) of Clause 11 a medical referee shall, if there is disagreement between the employee's doctor and the employer's doctor as to the employee's incapacity, be selected from an appropriate panel of doctors either by agreement between the employer and the employee or, failing agreement, by the Minister for Industrial Relations.

14. 

(a) Subject to the provisions of this clause an employee shall be paid during long service leave at his permanent classified rate of pay.

(b) Except where otherwise approved by the Minister for Industrial Relations the rate of pay of an employee shall be deemed to be the total wage applicable to the classification which, for the purpose of this clause is, or is deemed to be his permanent classification.

(c) If an employee has been employed in one or more positions each of which carries a higher rate than his permanent classified rate for a continuous period of 12 months ending not earlier than two weeks before the day on which he commences long service leave or is paid pro raja in lieu of leave in accordance with Clause 11 hereof, the rate which he has received for the greatest proportion of that 12 month period shall, for the purpose of this clause, be deemed to be his permanent classified rate.

(d) Where an employee engaged on construction work has had no permanent designation or rate of wage for the period of 12 months prior to the commencement of his leave, the rate of wage applicable to the work he performed for the greatest proportion of that 12 month period shall, for the purpose of this clause, be deemed to be his permanent classified rate.

(e) In the case of a pieceworker the permanent classified rate shall be deemed to be the ordinary time rate of pay payable to an employee engaged on the same type of work on a time basis and not on piecework.

(f) If any variation occurs in the rate of wage applicable to an employee during any period when he is on long service leave, the employee's pay while he is on leave shall be varied accordingly and, if the employee has been paid in full for the leave before its commencement payment shall be adjusted as soon as practicable after the employee resumes work.

(g) District . allowance shall not be paid during long service leave unless the family or dependants of the employee. remain in the district.

15. 

(a) A part-time employee shall be paid the proportion of the amount specified in Clause 14 hereof that his ordinary hours bear to the ordinary hours of a fulltime employee in the same classification.

(b) If the hours of a part-time employee have varied he shall be paid a rate based on the average number of hours worked over the full qualifying period.

(c) A full-time employee, who, during a qualifying period has been continuously employed on both full-time and part-time employment, may elect to take three months' long service leave at a rate determined by the proportion of service on a part-time basis to that on a full-time basis; or, to take a lesser period than three months calculated by converting the part-time service to equivalent full-time service; or to work such additional time as will effectively make up the part-time service into full-time service so that the employee qualifies for three months' long service leave at the full-time rate of pay.

(d) A part-time employee, who, during the qualifying period has been continuously employed on both parttime and full-time employment, shall be paid at a rate determined by the proportion of service on a part-time basis to that on a full-time basis.

(e) The provisions of this clause shall not apply with respect to any part-time service for which the employee has received additional remuneration to compensate for or in lieu of long service leave.

16. 

(a) Subject to subclause (c) of this clause where an employee was, immediately prior to being engaged, employed in the service of the Commonwealth or another State of Australia and that employment was continuous with this service under Clause 3 of these conditions that employee shall be entitled to long service leave determined in the following manner:

(i) Service with the previous employer shall be converted into service for the purpose of these conditions by calculating the proportion that the service with the previous employer bears to a full qualifying period in accordance with the provisions that applied in the previous employment and applying that proportion to a full qualifying period in accordance with the provisions of these conditions.

(ii) Service with the State necessary to complete a qualifying period for an entitlement of long service leave shall be calculated in accordance with the provisions of these conditions.

(iii) An employee shall not become entitled to long service leave or payment for long service leave unless he has completed three years' continuous service with the State.

(iv) Where an employee would but for the provisions of paragraph (iii) hereof have become entitled to long service leave before the expiration of three years' continuous service with the State, service subsequent to that date of entitlement shall count towards the next grant of long service leave.

(b) No employee shall be entitled to the benefit of this clause if service with the previous employer was terminated for reasons which would entitle that employer to dismiss the employee without notice.

(c) Nothing in these conditions confers on any employee previously employed by the Commonwealth or another State of Australia any entitlement to a complete period of long service leave that accrued prior to the date on which the employee was employed by the State.

(d) Any dispute as to the application of paragraph (i) of subclause (a) hereof or whether the employee was previously engaged in the service of the Commonwealth or another State of Australia shall be determined by the Long Service Leave Appeal Committee.

17. Where an employee, through personal ill health, is confined to his place : of residence. or a hospital for a continuous . period of 14 days or more during any: period of long service. leave taken after 1 April 1974 and such ' : confinement is certified to by a duly qualified medical practitioner, such period shall be considered sick leave and subject to the provisions of the relevant sick leave clause of the award or agreement governing the conditions of employment of the employee.

The period during long service leave for which paid sick leave has been approved shall be given as additional long service at a time convenient to the employer.

18. 

(a) There shall be a long service leave appeal committee consisting of the following honorary members:-

(i) Industrial Registrar - Western Australian Industrial Relations Commission (Chairman);

(ii) A representative of the Trades and Labor Council of WA (Member);

(iii) Director, Office of Industrial Relations (Member), or an officer nominated by the Director to act as his deputy.

(b) The function of the Committee shall be to hear appeals by any wages employee in respect of his long service leave entitlement or the rate to be paid during long service leave and to deal with any dispute arising out of the application of these conditions.

(c) An appellant may appear in person or may be represented by an accredited representative of the Union to which he belongs.

(d) Decisions of the Committee shall be final and binding on all parties thereto.