Q.  We have an employee who will have completed 10 years’ employment with the company at the end of next month. He started as a casual employee for the first 12 months and was terminated by the company on the understanding he would be re-employed as a full-time employee. This was to have a clean start to the accrual of paid leave and other employment conditions which do not usually apply to casual employment. 
 
The employee had a two-week break before starting as a full-time employee. The employee has indicated they will request two months' long service leave at the end of the year. 
 
Our question is – does the first 12 months as a casual employee count towards total service as there was a break in their employment with the company, or does the employee have to complete 10 years’ service as a full-time employee to qualify for long service leave? The employee is employed in New South Wales. 
  

A. Under the Long Service Leave Act 1955 [NSW] service as a casual employee counts towards total service when determining an employee’s entitlement to long service leave, subject to certain qualifications. The New South Wales Act was amended some years ago to provide for continuity of service of an employee who is terminated by an employer and re-engaged within two months. 
 
The Act (s4(11)(a)) states that service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment. 
 
This means a casual employee’s previous service counts towards accrual of long service leave where the employment is terminated by the employer, provided the employee is re-engaged within two months. The period between termination and re-employment would not count as service. If the employee resigned at any stage, continuity of service is broken. 
  
In this case, the period of casual employment would count as service as the employee was not terminated by the employer when the employee converted to full-time employment or, if the employee was terminated they were re-employed within two months of the termination.  
   
In Federated Clerks’ Union of Australia & AWA Wagering Systems Pty Ltd  [1999] NSWIRComm 67, the tribunal was of the view that it is the responsibility of the employer to ensure a casual employee has the information to make an informed decision as to whether he/she will take leave which has the consequence of breaking continuity of service.  
Other jurisdictions 
  
Generally long service leave legislation provides an entitlement to long service leave to all employees, including casual employees. State and territory legislation usually refers to the circumstance when an employee is terminated by the employer and re-engaged within a specified period of time (commonly two or three months). 
 
This provision is meant to cover the general nature of casual employment, i.e, termination and re-engagement in successive periods of employment with the same employer. The following is a summary of the period in which a break in service is deems previous service as continuous: 
  
Long Service Leave Act 1976 [ACT] – two months 
Long Service Leave [NT] – two months 
Industrial Relations Act 1999 [Qld] – three months 
Long Service Leave Act 1987 [SA] – two months 
Long Service Leave Act 1976 [Tas] – three months 
Long Service Leave Act 1992 [Vic] – three months 
Long Service Leave Act 1958 [WA] – two months 
  
The bottom line: State and territory long service leave legislation usually provides that a casual employee is entitled to long service leave, subject to meeting the definition of ‘continuous service’ under the relevant legislation.