Tasmanian Consolidated Acts

LONG SERVICE LEAVE ACT 1976 - SECT 5

      (1) For the purposes of this Act, employment (whether before or after the commencement of this Act) shall be deemed to be continuous notwithstanding –

(a) the taking of any annual leave or long service leave;

(b) any absence from work of the employee on a public holiday in accordance with the terms of his employment;

(c) any absence from work on account of illness or injury that has been certified as necessary by a medical practitioner;

(ca) the taking of any maternity leave by the employee in accordance with the terms of her employment;

(d) any interruption or ending of the employment by the employer, if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave;

(e) any interruption arising directly or indirectly from an industrial dispute, but only if the employee returns to work in accordance with the terms of settlement of the dispute;

(f) any absence from work, by leave of the employer, for the purpose of the employee attending a meeting of Skills Tasmania or of any committee established under the Vocational Education and Training Act 1994;

(g) the termination of the employment of an employee for any reason other than on account of slackness of trade, but only if he is re-employed by the same employer within 3 months after the date of that termination;

(h) the standing down for a period not exceeding 6 months of an employee on account of slackness of trade, or the termination of employment of an employee who returns to work within a period not exceeding 6 months after the termination of his employment on account of slackness of trade, but only if the return to work by the employee is made within 14 days after –

(i) receiving from the employer an offer of re-employment; or

(ii) the date on which the employer posts to the employee, by registered letter addressed to the employee at his last-known address, a notice to resume work;

(i) any absence from work of the employee for the purpose of –

(i) complying with a summons to appear as a juror;

(ii) appearing to give evidence before any court or body before which or person before whom persons may by law be required to appear to give evidence; or

(iii) complying with any requirement or exercising any right to appear before such a court, body, or person as is referred to in subparagraph (ii), whether as a party to any proceedings or as a witness or otherwise; or

(j) any other absence of the employee from work by leave of the employer.

      (2) In calculating the period of continuous employment of an employee, an interruption or absence of any of the kinds to which paragraphs (a), (b), (c), (d), (f), and (i) of subsection (1) relate shall be counted as part of the period of his employment, but an interruption or absence of any of the kinds to which paragraphs (ca), (e), (g), (h), and (j) of that subsection relate shall not be counted as part of the period of his employment.

      (3) Without limiting subsections (1) and (2), where an employee is regularly employed by an employer for not less than 32 hours in each consecutive period of 4 weeks, the employee shall be deemed for the purposes of this Act to be continuously employed by the employer, notwithstanding –

(a) that any of the employment is not full-time employment;

(b) that the employee was so employed under 2 or more contracts of employment separately entered into;

(c) that, apart from this subsection, the employee would be regarded as being engaged in casual employment; or

(d) that the employee engaged in other employment during that period.

      (4) Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as "the transmittor" ) to another employer (in this subsection referred to as "the transmittee" ) and a person who at the time of the transmission was an employee of the transmittor in that business becomes an employee of the transmittee –

(a) the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and

(b) the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of his employment, with the transmittor.

      (5) Where an employee transfers from employment with a corporation to employment with a corporation associated with that corporation –

(a) the continuity of his employment shall be deemed not to have been broken by reason only of his so transferring; and

(b) the period of his employment with the corporation to employment with which he so transfers shall be deemed to include the period of his employment, and any period deemed to be a period of employment, with the corporation from employment with which he so transfers.

      (6) For the purposes of subsection (5) a corporation shall be deemed to be associated with another corporation if those corporations are related to each other within the meaning of section 50 of the Corporations Act.

      (7) Without prejudice to the provisions of subsection (6), where –

(a) an employee is transferred from employment with one corporation to employment with another;

(b) the directors of each of those corporations are substantially the same or the corporations are under substantially the same management; and

(c) the employee believes on reasonable grounds that he has remained in employment with the same employer –

      (8) In this section the expressions "corporation" and "director" have respectively the same meanings as they have for the purposes of the Corporations Act.

      (9) Where the employment of an employee who is apprenticed to an employer has been continued by that employer upon or at any time within 3 months after the completion of the apprenticeship, the period of the apprenticeship shall be counted as part of the period of continuous employment of that employee with that employer.

      (10) A period of service by an employee as a member of the naval, military, or air forces (other than as a member of the permanent force) of the Commonwealth shall be deemed to be employment with the employer by whom the employee was last employed before he commenced to serve as a member thereof.

      (11) For the purposes of subsection (10), in the case of an employee whose last employment was temporary employment during a stand down period the expression "employer by whom the employee was last employed" means the employer who stood down the employee.