In the recent decision of
Facts
In 2009 Ms Thankappan commenced employment with
Later, in 2016 and pursuant to a new contract,
Following both employee resignations in 2019, the Inspectorate, on behalf of
The
Key issues
-
Whether employees are entitled to long service leave based on employment that partially occurs outside of
- Whether the definition of "continuous employment" in s 6 of the Long Service Leave Act 2018 includes service provided to an Indian employer prior to an employee commencing employment in
Victoria . - employment performed in obedience to a direction emanating from
Victoria ; or - employment formed in
Victoria . - employment performed inside
Victoria ; - employment performed in obedience to a direction emanating from
Victoria ; and - employment formed in
Victoria . - The connection to
Victoria can extend to continuous employment, which includes secondments from Victorian employers to entities outside ofVictoria . - In NSW, if there is a substantial connection between service and the State at the time of either the completion, termination or cessation of that service, the entitlement to long service leave arises. A substantial connection between the "entirety" of service and the State is not required.
Purpose of the Long Service Leave Act
Section 6 of the Long Service Leave Act 2018 states:
"At any time after completing 7 years of continuous employment with one employer, an employee is entitled to an amount of long service leave on ordinary pay equal to 1/60th of the employee's total period of continuous employment less any period of long service leave taken during that period."
It was submitted that there was no special connection with
Contrastingly, The
The Court's reasoning
The Court did not agree with the State's construction of s 6 of the Long Service Leave Act 2018, instead finding that the critical focus of the Act was to confer an entitlement to long service leave, and affirm that "employment is indispensable and the entitlement is a reward for that service".
The Court had regard to the application of the Long Service Leave Act 1992 (Vic) in the judgment of the full court of the
In Keenan, the Court held that all 34 years were to be factored in when calculating the worker's long service leave entitlements.
The Court also held that two steps were critical in determining whether the continuous employment had a territorial connection to
In
It is clear that both
In
In order for there to be a sufficient connection, continuous employment must be employment "in and of
-
employment performed inside
Application within
The Long Service Leave Act 1955 (NSW) provides that a worker is entitled to long service leave once they have completed at least 10 years of service with the employer.
Unlike
Instead, the focus is on whether the service was substantially connected to NSW at the time that the relevant event (completion, termination or cessation of service) occurred. This means employers in NSW can be liable to pay long service leave without there being a substantial connection between the entirety of service and NSW.
In Timken, the Court found that long service leave benefits "accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed at that time had a substantial connection with the state".
Key Takeaways
-
Continuous employment for the purposes of s 6 of the Long Service Leave Act 2018 is to be accepted as including:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
Level
2000
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