28 Apr 2016
Service in related entities outside Australia counts towards WA long service leave entitlements
by Jessica Keogh, Ebony Creek
WA employers calculating an employee's long service leave entitlement must include all continuous service with related bodies corporate.
The Western Australia Industrial Magistrates Court has clarified what service with related entities will count as service for the purposes of calculating an employee's entitlement to long service leave under section 8(1) of the Long Service Leave Act 1958 (WA) (LSL Act) in Martin Venier v Baker Hughes Australia Pty Ltd  WAIRC 00210.
What is the case about?
Mr Martin Venier was employed by Baker Hughes Australia Pty Ltd or its related body corporates from 28 November 1988 to 16 July 2015. During his employment with Baker Hughes, Mr Venier worked for various divisions and related bodies corporate, with his last position being located in WA with Baker Hughes from 30 July 2008.
Mr Venier claimed that he was entitled to 23.01 weeks' of long service leave on the basis of 26.64 years' of continuous service with Baker Hughes and its related body corporates in accordance with section 8(1) of the LSL Act. Claiming that a related body corporate (as defined in section 50 of the Corporations Act 2001) falls within the meaning of 'one and the same employer' under section 8(1) of the LSL Act.
Baker Hughes argued that under the LSL Act Mr Venier could not consider his previous service with Baker Hughes entities prior to July 2008. It was Baker Hughes's position that Mr Venier failed to reach the seven-year continuous service threshold to invoke his right to long service leave and was therefore not entitled to long service leave.
What is continuous employment with one and the same employer?
The Magistrate looked at the history of the LSL Act and found that in previous legislation an employee's service with related entities was considered continuous service with “one and the same employer”. He accepted that Parliament had intended that service “with one and the same employer” to be the same as previous legislation. Denying long service leave to long-serving employees of related entities would be inconsistent with the historical application of the LSL Act and the purpose of the amending legislation.
On this basis, the Magistrate found that Mr Venier's service with a related body corporate (as defined in section 50 of the Corporations Act 2001) of Baker Hughes was continuous employment with one and the same employer.
What does this mean for employers in WA?
Employers need to be aware that in WA an employee's prior service with related bodies corporate, inside, and outside of WA, may count as service for the purpose of calculating an employee's long service leave entitlements. On this basis, employers will need to consider, when calculating an employee's long service leave entitlement, whether they are required to include all continuous service with related bodies corporate.
If you require any assistance determining an employee's long service leave entitlement please do not hesitate to contact us.
This decision is being appealed by Baker Hughes.