The union has many members who have worked for extended periods as regular casual employees in schools, and also a large number of long term casual employees in the ELICOS sector. Some members have exclusively worked on a casual basis, whereas others have combined periods of casual and permanent service.
Members often ask about long service leave entitlements for casual employees, or whether prior periods of casual service are taken into account when calculating the relevant period of service to qualify for Long Service Leave (LSL). The short answer is “yes”, service as a casual employee counts for LSL purposes, but the key question is whether relevant periods of service as a casual employee count toward the required period of “continuous service”.
Long Service Leave became a legislated entitlement for employees in NSW in 1955 (or 1976 in the case of the ACT), and generally speaking these Acts provide for the equivalent of two months of leave for 10 years of service, albeit in different ways. The ACT legislation appears to have always recognised that casual employees were entitled to LSL, and the NSW legislation was amended in 1985 to confirm this. Many enterprise agreements covering teachers and support staff in schools now provide for higher rates of accrual of LSL, but still refer to the relevant legislation for the method of identifying and calculating “continuous service”.
Questions about “continuous service” can be very complex, requiring an application of the provisions of the relevant Act, a careful analysis of the employee’s employment history, and may also require a consideration any relevant legal precedent. Complications arise from the general common law view that each separate casual engagement “stands alone”. Further complications arise in calculating periods of service and determining the applicable rates of pay. For these reasons members are encouraged to contact the union if they believe they may have entitlements arising from periods of casual service.
Some key points
• Members with casual service should bear the following key points in mind in considering whether they may have entitlements to Long Service Leave:
Generally, an employee becomes entitled to LSL entitlements after completing 10 years of continuous service in NSW, or seven years in the ACT;
• Under the legislation, an employee will be entitled to a proportionate amount of leave where an employee’s services are terminated by an employer (for reasons other than serious and wilful misconduct ) after five years of continuous service;
• Similarly, where an employee terminates their employment after five years of continuous service (and before they are otherwise entitled to LSL) for reasons including illness, incapacity, or other domestic or pressing necessity, the employee may be entitled to a proportionate amount of LSL. Any member (whether casual or not) considering terminating their employment for such reason is encouraged to contact the union for advice before doing so;
• Teachers and non teaching staff in non government schools covered by an enterprise agreement will often be entitled to LSL upon resignation after completing five years of service, whether or not one of the above reasons applies. However members are again encouraged to contact the union to confirm the provisions applicable to their circumstances.
Catholic LSL portability
Members employed in Catholic schools should also be aware that most enterprise agreements contain LSL portability provisions that may require another Catholic school employer to recognise periods of prior service for LSL purposes. These provisions generally require an exchange of documentation at the time of termination by the former employer and the time of engagement by the new employer. Where this occurs, members should check to ensure whether all eligible casual service has been properly recorded in the required documentation.
Why casual employees should apply for Parental Leave
Significant breaks in service will generally mean that the period of service has been broke such that an earlier period of service may not be regarded as having been continuous. For this reason it is important for casual employees to do everything possible to ensure that continuity of service is maintained.
Recently Catholic Education, Diocese of Parramatta (CEDP) denied a member recognition of a significant period of prior casual service because she took a break from teaching after giving birth to a child. CEDP refused to acknowledge the earlier period of casual service because it asserted that the time she took off work to look after her child broke the continuity of service. The way to avoid such an outcome is for casually employed members to apply for unpaid parental leave under the Fair Work Act where possible (sometimes an employee may not have the requisite 12 months of service). Unpaid parental leave does not count toward an employee’s total period of service, but it is essential to maintaining a total period of continuous service.
Other recent disputes
The union has also recently assisted casually employed members in schools securing the higher rates of LSL accrual that apply under the terms of applicable enterprise agreements. These recent disputes arise due to the complexity of the interaction between agreements and the relevant legislation. Having managed to secure beneficial outcomes for members, the union continues working toward making any necessary changes to agreements to further acknowledge casual employees and casual service for LSL purposes.
With the recent COVID-19 disruptions, the union has also been assisting many long term casually employed members in ELICOS to identify whether they hold LSL entitlements. Complications may arise as to whether or not employment has terminated in the case of members who have not yet completed the required period of continuous service (eg 10 years in NSW). Members who believe they have completed five years of continuous service may need to contact their union organiser if they become concerned that their employment has been terminated – a circumstance that is likely to occur if they cease receiving JobKeeper payments and they are not otherwise re-engaged by their employer.