LONG SERVICE LEAVE ACT 2018 (NO. 12 OF 2018) - SECT 11 Meaning of one employer

LONG SERVICE LEAVE ACT 2018 (NO. 12 OF 2018) - SECT 11

    (1)     This section sets out several situations in which an employee is taken, for the purposes of this Act, to have been employed by one employer despite having been employed during the relevant period by more than one employer in a strict legal sense.

    (2)     If an employee is employed by a corporation, the employee is taken to have been employed by the corporation during any period that the employee was employed by—

        (a)     a related body corporate of the corporation (within the meaning of the Corporations Act); or

        (b)     another corporation and—

              (i)     the directors of that other corporation and the employee's present employer were substantially the same; or

              (ii)     that other corporation and the employee's present employer were under substantially the same management.

    (3)     If the ownership of a business employing an employee changes but the employment of the employee continues—

        (a)     the employee is taken to have started employment with the new owner on the date on which the employee started employment at that business; and

        (b)     the new owner must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued before the change of ownership.

    (4)     Subsection (3) applies regardless of whether the change of ownership of the business occurred before or after the commencement of this Act.

    (5)     If an employee is dismissed from employment by the owner of a business and is re-employed within 12 weeks after the day of the dismissal by a new owner of the same business to perform work for the new owner which is the same (or substantially the same) as the work the employee performed for the former owner, the employee is taken—

        (a)     to have finished employment with the former owner on the day before the ownership of the business changed; and

        (b)     to have started employment with the new owner on the day the ownership of the business changed; and

        (c)     to have been employed by the new owner from the day on which the employee first started employment at that business.

    (6)     If an employee performs duties in connection with any assets used in the carrying on of a business owned by the employee's employer and those assets are transferred to another employer who continues the employment of the employee—

        (a)     the employee is taken to have started employment with the new owner on the day on which the employee started employment at that business; and

        (b)     the new owner must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued before the transfer.

    (7)     Subsection (8) applies if—

        (a)     an employee performs duties in connection with any assets used in the carrying on of an employer's business; and

        (b)     the employee is dismissed by that employer; and

        (c)     those assets are transferred to another employer; and

        (d)     within 12 weeks after the day of the dismissal, the other employer employs the employee to perform duties in relation to those assets or other assets of a similar kind.

    (8)     An employee referred to in subsection (7) is taken—

        (a)     to have finished employment with the employee's former employer on the day before the assets were transferred; and

        (b)     to have started employment with the new employer on the day the assets were transferred; and

        (c)     to have been employed by the new employer from the day on which the employee first started employment at that business.

    (9)     Subsection (10) applies if—

        (a)     an employee performs work in the course of employment with the employee's employer (the first-mentioned employer ); and

        (b)     the first-mentioned employer enters into a contract with another person (the  second-mentioned employer ) for the performance of work that is the same (or substantially the same) as the work performed for the first-mentioned employer; and

        (c)     as a consequence of that contract, the employee ceases employment with the first-mentioned employer and commences employment with the second-mentioned employer.

    (10)     An employee referred to in subsection (9) is taken to have started employment with the second-mentioned employer on the day on which the employee started employment with the first-mentioned employer.

    (11)     The second-mentioned employer referred to in subsection (9) must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued while the employee was employed by the first-mentioned employer.

    (12)     In this section—

assets includes tangible and intangible assets;

business includes a trade, process and occupation and any part of a trade, process or occupation and also includes any part of a business;

transfer includes a transmission, conveyance, assignment or succession, whether by agreement or by operation of law.