Casual employees may be entitled to long service leave, depending on the state or territory they were employed in. The nature of casual work means that casual employees generally work irregularly without a large expectation of continuing employment. Whilst casual employees do not receive paid leave or sick leave, they may be entitled to long service.
Defining Long Service Leave
Long service leave is a reward whereby employees are entitled to take paid time off work when they have worked for the same company for an extended period of time. Generally employees must be employed for at least 10 years, or seven years if they are employed in Victoria or ACT. Long service leave rewards employees for their loyalty to the business.
Long service leave laws are regulated by the legislation of each state or territory rather than federal government legislation. Due to different legislation concerning long service leave, each state or territory will have different requirements concerning:
- Whether employees are entitled to long service leave prior to ten years of service (or before seven years in ACT and Victoria)
- What constitutes broken service by employees
- Whether a casual employee is entitled to long service leave
- When can an employee take long service leave; and
- For what period are employees entitled to take their paid time off work
Casual employees
If a casual employee has been employed for an extended period of time, it must be determined whether they are true casuals or permanent employees. This is an important consideration as their length of service may entitle them to long service leave. Generally, an employee who is employed for a long period of time is likely to have an ongoing expectation of work and an advance commitment to the period of work.
Classing an employee as a casual when they are better suited as a permanent employee can create an underpayment liability for the company because they would not be paying permanent entitlements to the casual employee.
Are casual employees entitled to long service leave?
Whether casuals are entitled to long service leave is determined by the state or territory in which they are employed. All states within Australia account for casual employees however it is important to the specifics and any exclusions.
New South Wales
The Long Service Leave Act 1955 (NSW) states that employees are entitled to long service leave depending on their length of service. ‘Service’ is considered as continuous service regardless of whether the service is provided on a permanent, casual or part-time basis. Therefore, casuals in NSW are entitled to take long service leave depending on their length of service.
Victoria
Under the Long Service Act 2018 (VIC) employees, including casual employees, are entitled to long service leave if they have had continuous employment for at least 7 years. The definition of continuous employment accounts for casual employees. Therefore, casual employees in Victoria are entitled to long service leave.
Queensland
The Industrial Relations Act 2016 (Qld) outlines that employees are entitled to long service leave based on their length of continuous service. This legislation states that continuous service also applies to employees who are engaged in casual employment or employees who have worked at other workplaces during their employment tenure. This means that casuals in Queensland are entitled to long service leave.
South Australia
Under the Long Service Act 1987 (SA), employees who have given at least 10 years of service are entitled to long service leave. Whilst this law does not specifically mention whether casuals are included, it is broad enough to include casual employees. Therefore, casual employees are entitled to long service leave.
Australian Capital Territory
The Long Service Leave Act 1976 (ACT) states that employees are entitled to long service leave if they have completed at least seven years of service. Based on this, casuals are entitled to long service leave in ACT.
Western Australia
The Long Service Act 1958 (WA) does not specifically reference casual employees, however, the act entitles employees to long service leave if they have completed ten years of continuous employment. Continuous employment is broadly defined and does not prohibit casuals from being entitled to long service leave. The act does make reference to casuals in its explanation of how long service leave entitlements should be calculated. Therefore, casual employees are entitled to long service leave in Western Australia.
What to take away from this article?
Casual employees are entitled to long service leave in the majority of Australian states and territories as discussed above. However, there are specific exclusions depending on the legislation. These exclusions mean that an employee’s entitlement to long service leave should be assessed on a case by-case-basis. It is also important to consider the nature of the employment relationship.
If you need assistance with regards to whether a casual employee is entitled to long service leave, get in touch with our employment lawyers via the contact form or by calling 1300 337 997.
Dean is a paralegal with OpenLegal. Dean works on a range of commercial law matters including contract reviews, startup fundraising, and legal issues concerned with early stage startups.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
