The claimant, who worked as a Chef de Partie at Fiona Stanley Hospital (FSH) for just under 10 years, brought a claim to the Industrial Magistrates Court (Court) alleging a contravention of the Long Service Leave Act 1958 (WA) (LSL Act). The claimant claimed that at the end of her employment she was entitled to a payment for untaken long service leave in the amount of $14,171.45. The claimant also sought interest on judgment, an order for a pecuniary penalty, and costs.

Initially, the claimant was employed by Serco Australia Pty Ltd (Serco) for approximately seven years commencing in September 2014, then from August 2021 she was employed by the respondent, South Metropolitan Health Service as Agent for the State of Western Australia (SMHS) until she resigned in May 2024. Her role with FSH was the same under both employers, and both parties agreed that the WA Health System – HSUWA – PACTS Industrial Agreement 2022 (HSUWA Pacts Agreement 2022) applied to the claimant’s employment. 

The claimant argued that, as provided under the LSL Act, she was entitled to a pro-rata payment on termination of her employment in lieu of taking long service leave as she claimed she had performed at least 7 years of continuous service. From the claimant’s perspective, her employment with Serco and the SMHS was continuous service for the purposes of the LSL Act and its transmission of business provisions. 

The respondent denied this claim, asserting that, by operation of section 4A(4) of the LSL Act, the claimant is not entitled to long service leave under the LSL Act because the HSUWA Pacts Agreement 2022 provided for her long service leave entitlement. Under the HSUWA Pacts Agreement 2022, accrued and untaken long service leave is payable after 10 years of continuous service.  Further, the respondent held the position that even if the LSL Act applied when her employment ended, the claimant’s service to FSH did not meet the continuous service and transmission of business provisions of the LSL Act and her employment period with SMHS was less than 7 years.

The central issue the Industrial Magistrate had to determine was whether the LSL Act applied to the claimant, and specifically how section 4A(4) should be interpreted. Section 4A(4) of the LSL Act provides that the LSL Act does not apply to an employee who has a separate entitlement to take long service leave or be paid on termination that is at least equivalent to the entitlement under the LSL Act. The Industrial Magistrate had to compare the long service leave entitlement provided by the LSL Act against the entitlement provided under the HSUWA Pacts Agreement 2022 to evaluate if the agreement provided at least equivalent long service leave.

The parties held opposing views as to how the Court should approach this comparison of the two instruments and their respective entitlements. The claimant argued that section 4A(4) of the LSL Act compromises two composite parts to be compared, the entitlement to take long service leave and the entitlement to be paid on termination for long service accrued but not taken. The respondent argued that the LSL Act should not be interpreted to provide for two separate entitlements but rather one comprehensive benefit is defined by the LSL Act and that one benefit should be ‘globally’ evaluated against the benefit provided for under the HSUWA Pacts Agreement 2022.

The Industrial Magistrate examined and applied the principles of statutory construction and determined that section 4A(4) of the LSL Act does not require a comparison of the component parts making up a long service leave entitlement.  Ultimately, the Industrial Magistrate found that the HSUWA Pacts Agreement 2022 provides for an entitlement to long service leave that is overall more favourable than the entitlement under the LSL Act. As such, the LSL Act was found not to apply to the claimant and consequently the Industrial Magistrate dismissed the claim. The full reasons for decision can be read here.