Continuity of service and employment

The Industrial Relations Act 1999 (PDF, 1.9MB) contains specific provisions regarding breaks in service and the effect of such breaks on the accrual of entitlements under the Act or under an award or agreement. This is especially relevant for the accrual of all types of leave and calculation of notice of dismissal.

Generally (with a few specific exceptions), the period of the break in service does not count towards the accrual of entitlements. However, if the break in service fits into one of the categories prescribed by the Act, then the period of employment both before and after the break are added together and treated as a single period of service for the purpose of calculating entitlements.

As several of the breaks in continuity defined in the Act arise from termination of employment, the Act provides that entitlements can be claimed only once for the same period of service.

The Act provides that continuity of service is not broken:

if a current employee commences an apprenticeship or traineeship with their employer;
if an employer continues to employ, or re-employs within 3 months, a former apprentice or trainee after completion of their apprenticeship or traineeship;
if an employee's service is temporarily lent or let on hire to another employer;
by an absence on paid or unpaid leave approved by the employer (including leave because of illness or injury);
by an employer terminating an employee because of illness or injury, if:
- the employee is re-employed by the same employer, and
- the employee has not been employed between termination and re-employment;
by the employee being terminated either by the employer or employee, if the employee is re-employed by that same employer within 3 months;
if an employee is terminated or has their service interrupted by an employer to avoid employment obligations (e.g. to break service so that leave is not accrued);
if an employee is terminated or has their service interrupted by an employer
- as a direct or indirect result of an industrial dispute, or
- because of slackness of trade or business
where an employee is re-employed by the same employer where the employer previously terminated them or interrupted their service,
- as a direct or indirect result of an industrial dispute, or
- because of slackness of trade or business;

The Act also provides that:

service with a partnership and an employer who was, or becomes, a member of a partnership; and
service with a corporation and any of its subsidiaries

counts as a single period of continuous service with the same employer.

Generally, the only periods of absence from work which count as continuous service are periods of paid leave. It is considered that periods of absence on WorkCover also count as as continuous service to determine a leave entitlement.

In the above provisions the term "terminate" includes a stand-down.

Last updated: 01 November 2006

Rights & obligations

Continuity of service and employment