The Industrial Relations Amendment Act 2021 (WA) (IR Act) has now commenced operation, including a number of amendments to the Long Service Leave Act 1958 (WA) (LSL Act). The amendments seek to clarify certain long service leave (LSL) entitlements and provide a timely opportunity for employers with WA based employees to review LSL arrangements.
Casual and seasonal employees
One of the key features of the amendments is greater clarity in respect of the position on casual and seasonal employees and their entitlement to LSL. While it has long been considered that casual workers are entitled to LSL, the express reference to casual and seasonal workers under the new definition of ‘employee’ confirms that there is no gap arising from a lack of ‘continuous employment’.
Payment of long service leave
A number of payment issues for LSL have also been clarified. The new provisions confirm that the rate of pay for LSL is the average weekly rate of pay in the previous 365 days (excluding any periods of unpaid leave and stand down) and that payment in lieu of taking LSL cannot be provided before the entitlement to LSL accrues.
Enforcement and penalties
Associated amendments to the IR Act now enable a LSL entitlement to be enforced under the provisions of the IR Act and provide that contraventions of the LSL Act will attract penalties consistent with those that apply to contraventions of other minimum employment entitlements under the IR Act. Currently, the maximum penalties are $13,000 (or up to $130,000 in the case of a serious contravention) for individuals and $65,000 (or up to $650,000 in the case of a serious contravention) for bodies corporate.
Flexible long service leave arrangements
The amendments also permit employers and employees to negotiate flexible arrangements around LSL. Employees may now request to take a period of their LSL at half pay (e.g., 8 weeks’ pay over 16 weeks) or double pay (e.g., 8 weeks’ pay over 4 weeks). However, the employer has discretion whether to approve such a request.
Transfer of business provisions
Another notable change is the replacement of the “transmission of business provisions” with the “transfer of business” definition from the Fair Work Act 2009 (Cth). Prior to these amendments, the existence of two different tests in transfer of business situations was a potential source of confusion. The new provisions clarify the circumstances where an employee’s accrued LSL entitlements will transfer with their employment to a new employer and be considered ‘continuous employment’ in a transfer of business context.
Record keeping requirements
Lastly, the amendments expand the records which employers are required to keep in respect of LSL, including:
- the employer’s name and ABN (if any);
- the date of any transfer of business during the employment of the employee;
- the weekly hours worked by the employee; and
- details of any leave foregone under an agreement to cash out LSL, including the amount of leave cashed out, the benefit that was paid and the date this occurred.
Penalties apply to employers who do not keep such records or where the records are misleading or false.
It is important that employers and businesses with WA based employees familiarise themselves with the amendments to ensure they are LSL compliant.