Is working overseas “continuous” for the purposes of the Long Service Leave Act?

Section 8(1) of the Long Service Leave Act 1958 (WA) (LSL Act) states:
An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of continuous employment with one and the same employer, or with a person who, being a transmittee, is deemed pursuant to section 6(4) to be one and the same employer.

The Full Bench of the Western Australian Industrial Relations Commission gave consideration to this matter in Baker Hughes Australia Pty Ltd v Venier.¹

The facts of the matter were that Mr Venier had been employed by Baker Hughes for the period November 2008 to July 2015.  This period alone was less than the seven years of service and Mr Venier did not qualify for a long service leave entitlement under the LSL Act.  However, Mr Venier had, in November 1988, commenced employment in the United Kingdom with an entity that was related to Baker Hughes.  Since that time, he had worked at various other overseas entities which were also related to Baker Hughes.

Mr Venier initially succeeded in the Industrial Magistrates Court on his claim for payment of long service leave entitlements.  That Court decided that “one and the same employer” includes “more than one” and that service with related entites should be considered “one and the same employer.”

The Full Bench, however, overturned the earlier decision by holding that service with related entities overseas is not included in the definition of continuous service under the LSL Act.  Significantly, the Full Bench found that:

• The word ‘employer’ in s 8(1) of the LSL Act should be interpreted as singular;
• The definition of ‘related body corporate’ in s 50 of the Corporations Act 2001 (Cth), is not applicable to the LSL Act;
• The words continuous employment with ‘one and the same employer’ are limiting words and mean continuous employment with a single employer; and
• To add words into the LSL Act which are too far reaching, creates new roles and obligations which would usurp the role of Parliament.

Lavan comment

This decision makes it clear that if an employee has worked in related body corporate overseas, the employee is not entitled to include that service in their calculation for long service leave entitlements.  The same position will apply to service interstate for a related body corporate.

This interpretation of the LSL Act will apply unless there is an express term in an employment contract which states that service with a related body corporate should be included.  Absent such an express term, it is up to an employer’s discretion as to whether to recognise, or not recognise, such unrelated service.

If you require assistance in determining an employee’s long service leave entitlements, please contact us.