An aged care employer in WA has been ordered by the WA Industrial Magistrate to pay a casual personal care worker long service leave for her employment with them as a casual from July 2001 and November 2014. The claim was brought to the WA Industrial Magistrate’s Court by an Industrial Inspector from the WA Department of Mines, Industry Regulation and Safety.

The employee was placed with clients for periods that varied between one day and five months. She worked for four or five days in most weeks during this period on a shift of between six and seven hours. She informed the employer in advance if she was not available for work. On two occasions, she informed the employer that she was not available for over two months. She was paid as and referred to as a casual employee.

The employer claimed that the ex-employee was not entitled to long service leave under the Long Service Leave Act 1958 (WA) (LSL Act) because there was a question of whether she had been an employee of the employer or an employee of each of the several clients she was placed with. The employer also claimed that she had not been continuously employed as required by the LSL Act as she had been a casual employee.

The Industrial Magistrate found that:

  • the ex-employee had been a casual employee of the employer and not the various clients as argued by the employer. This was supported by a contract of employment (even though not signed by the ex-employee) that the parties had accepted as being in place.
  • the ex-employee had been continuously employed from July 2001 to November 2014 even though she had had breaks in engagements of over 2 months and in total had 15 separate absences. The Magistrate stated that these were “authorised absences” in the continuing employment relationship.
  • the ordinary rate payable by accepting the averaging of hours worked over the entire employment in accordance with sections 4(1) and 4(2) of the LSL Act.

Take Aways for WA Members

  • Casual employees can be entitled to long service leave under the Long Service Leave Act 1958 (WA);
  • It is important to take into account any written contracts of employment when determining whether a person is an employee of a particular employer and what type of employment they have with the employer;
  • 2 month breaks between engagements for a casual employee do not necessarily break the employee’s continuous service with an employer under the Long Service Leave Act 1958 (WA).

Janine Callan, Department of Mines, Industry Regulation & Safety v Ubiquitous Holdings Pty Ltd (ACN: 072 254 301) – 2020 WAIRC 00250 06/05/2020