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LONG SERVICE LEAVE ACT 2018 (NO. 12 OF 2018) - SECT 12 Meaning of continuous employment

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

Meaning of continuous employment

    (1)     This section sets out several situations in which an employee is taken, for the purposes of this Act, to be continuously employed even though in a strict legal sense it could be said that the employee's employment was interrupted.

    (2)     An employee's employment is taken to be continuous despite an absence from work caused by the employee taking—

        (a)     annual leave; or

        (b)     long service leave; or

        (c)     paid or unpaid parental leave (other than in the case of a casual or seasonal employee); or

        (d)     in the case of a casual or seasonal employee, paid or unpaid parental leave that is not longer than 104 weeks; or

        (e)     carer's leave; or

        (f)     leave on account of illness or injury; or

        (g)     any other form of leave not referred to in this subsection that is provided for under the relevant employment agreement.

    (3)     A casual or seasonal employee's employment is taken to be continuous despite an absence from work that is longer than 12 weeks, starting at the end of a particular instance of employment and ending at the start of another particular instance of employment if—

        (a)     the casual or seasonal employee and the employer so agree before the start of the absence; or

        (b)     the absence is due to the terms of engagement of the casual or seasonal employee; or

        (c)     the absence is caused by seasonal factors; or

        (d)     the employee has been employed by the employer on a regular and systematic basis and the employee has a reasonable expectation of being re-engaged by the employer.

    (4)     An employee's employment is taken to be continuous despite an absence from work caused by the employer terminating or interrupting the employment with the intention of avoiding an obligation in relation to long service leave.

    (5)     An employee's employment is taken to be continuous despite     an absence arising solely from the transfer of assets from one employer to another, if the employee usually performs duties which are connected with those assets.

    (6)     An employee's employment is taken to be continuous despite an absence from work caused by the termination of the employee's employment—

        (a)     at the initiative of the employer or the employee, if the employee is re-employed by the employer within 12 weeks after the termination; or

        (b)     because of the expiration of a specified term of an employment contract, if the employee is re-employed by the employer within 12 weeks after the expiration; or

        (c)     because the employee's apprenticeship to an employer is completed, if the employee is re-employed by the employer within 52 weeks after the end of the apprenticeship.

    (7)     An employee's employment is taken to be continuous despite the employer standing down the employee during industrial action if—

        (a)     the employee cannot be usefully employed because of the industrial action; and

        (b)     there is no employment agreement that applies to the employer and the employee providing for the employer to stand down the employee in such circumstances.

    (8)     An employee's employment is taken to be continuous despite the employer standing down the employee because of a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible if—

        (a)     the employee cannot be usefully employed because of the breakdown; and

        (b)     there is no employment agreement that applies to the employer and the employee providing for the employer to stand down the employee in such circumstances.

    (9)     An employee's employment is taken to be continuous despite the employer standing down the employee because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible if—

        (a)     the employee cannot be usefully employed because of the stoppage; and

        (b)     there is no employment agreement that applies to the employer and the employee providing for the employer to stand down the employee in such circumstances.

    (10)     In this section—

"industrial action" means any of the following kinds of action—

        (a)     the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

        (b)     a ban, limitation or restriction on the performance of work by an employee or on the acceptance of, or offering for, work by an employee;

        (c)     a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

        (d)     an employer prevents an employee from performing work under the employee's contract of employment without terminating that contract.

    (11)     Despite anything to the contrary in subsection (10), industrial action does not include the following—

        (a)     action by employees that is authorised or agreed to by the employer of the employees;

        (b)     action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

        (c)     action by an employee if—

              (i)     the action was based on a reasonable concern of the employee about an imminent risk to the employee's health or safety; and

              (ii)     the employee did not unreasonably fail to comply with a direction of the employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.