Western Australian Consolidated Acts Western Australian Consolidated Acts (1) For the purposes
of this Act employment of an employee whether before or after the commencement
of this Act shall be deemed to include —
(a) any
period of absence from duty for —
(i)
annual leave;
(ii)
long service leave; or
(iii)
public holidays or half-holidays, or, where applicable to
the employment, bank holidays;
(b) any
period of absence from duty necessitated by sickness of or injury to the
employee but only to the extent of 15 working days in any year of his
employment;
(c) any
period following any termination of the employment by the employer if such
termination has been made merely with the intention of avoiding obligations
under this Act in respect of long service leave or obligations under any award
or industrial agreement in respect of annual leave; and
(d) any
period during which the employment of the employee was or is interrupted by
service —
(i)
as a member of the Naval, Military or Air Forces of the
Commonwealth of Australia other than as a member of the British Commonwealth
Occupation Forces in Japan and other than as a member of the Permanent Forces
of the Commonwealth of Australia except in the circumstances referred to in
section 31(2) of the Defence Act 1903 and except in Korea or Malaya
after 26 June 1950;
(ii)
as a member of the Civil Construction Corps established
under the National Security Act 1939-1946 2 ; or
(iii)
in any of the Armed Forces under the National Service
Act 1951 3 , or any Act passed in substitution for, or amendment
of, that Act,
but only if the
employee, as soon as reasonably practicable after the completion of any such
service, resumed or resumes employment with the employer by whom he was last
employed prior to the commencement of such service.
(2) For the purposes
of this Act, the employment of an employee whether before or after the
commencement of this Act shall be deemed to be continuous
notwithstanding —
(a) the
transmission of a business as referred to in subsection (4);
(b) any
interruption referred to in subsection (1) irrespective of the duration
thereof;
(c) any
absence of the employee from his employment if the absence is authorised by
his employer;
(d) any
standing-down of an employee in accordance with the provisions of an award,
industrial agreement, order or determination —
(i)
in force under the Industrial Relations Act 1979 ;
or
(ii)
in force under the Commonwealth Conciliation and
Arbitration Act 1904 4 , or any Act enacted by the Parliament of
the Commonwealth in amendment of, or substitution for, that Act;
(e) any
absence from duty arising directly or indirectly from an industrial dispute if
the employee returns to work in accordance with the terms of settlement of the
dispute;
(f) any
termination of the employment by the employer on any ground other than
slackness of trade if the employee is re-employed by the same employer within
a period not exceeding 2 months from the date of such termination;
(g) any
termination of the employment by the employer on the ground of slackness of
trade if the employee is re-employed by the same employer within a period not
exceeding 6 months from the date of such termination;
(h) any
reasonable absence of the employee on legitimate union business in respect of
which he has requested and been refused leave;
(i)
any absence of the employee from his employment after the
coming into operation of this Act by reason of any cause not specified in
subsection (1) or in this subsection unless the employer, during the
absence or within 14 days of the termination of the absence, gives
written notice to the employee that the continuity of his employment has been
broken by that absence, in which case the absence shall be deemed to have
broken the continuity of employment.
(3) Any period of
absence from, or interruption of employment referred to in
subsection (2)(c) to (i) inclusive shall not be counted as part of the
period of an employee’s employment.
(4)(i) Where a
business has, whether before or after the coming into operation hereof, been
transmitted from an employer (herein called the transmittor ) to another
employer (herein called the transmittee ) and an employee who at the time of
such transmission was an employee of the transmittor in that business becomes
an employee of the transmittee — the period of the continuous
employment which the employee has had with the transmittor (including any such
employment with any prior transmittor) shall be deemed to be employment of the
employee with the transmittee.
(ii)
In this subsection transmission includes transfer,
conveyance, assignment or succession, whether voluntary or by agreement or by
operation of law, and transmitted has a corresponding meaning.
[Section 6 amended by No. 97 of 1973
s. 5; No. 79 of 1995 s. 48.]