39AEntitlement to long service leave

#### 39A Entitlement to long service leave General rule (1) If an eligible employee completes a period of qualifying service that is, or periods of qualifying service that add up to, at least 8 years, the employee is entitled to long service leave under this Part in respect of that period, or those periods, of qualifying service. Meaning of qualifying service (2) A period of qualifying service by an employee is a period during which the employee is an eligible employee of one or more employers, but does not include any of the following: (a) a period of unauthorised absence; (b) a period of unpaid leave or unpaid authorised absence, other than: (i) a period of absence under Division 8 of Part 2‑2 of the Fair Work Act 2009 (which deals with community service leave); or (ii) a period of stand down under Part 3‑5 of the Fair Work Act 2009, under an enterprise agreement that applies (within the meaning of that Act) to the employee, or under the employee’s contract of employment; or (iii) a period during which the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation or under an industrial instrument; or (iv) a period of leave or absence of a kind prescribed by the regulations for the purposes of this paragraph; (c) if the employee ceases to be an eligible employee for a continuous period (a break period) of 8 years or more—any period before the break period during which the employee was an eligible employee; (d) any period during which a waiver agreement is in effect between the employee and an employer; (e) any other period of a kind prescribed by the regulations for the purposes of this paragraph. (3) For the purposes of subsection (2), if a casual employee is an eligible employee at any time during a week, the employee is taken to have been an eligible employee for the whole week. (3A) If: (a) subsection (3) applies in relation to a casual employee for a week (the initial week); and (b) apart from this subsection, subsection (3) does not apply in relation to that employee for the next week (the relevant week) after the initial week; and (c) the relevant week is not otherwise a period of qualifying service for that employee; and (d) subsection (3) applies in relation to that employee for the next week after the relevant week; then, for the purposes of subsection (2), that employee is taken to have been an eligible employee for the whole of the relevant week in the capacity of a casual employee. > Note: The effect of this subsection is that the relevant week will be a period of qualifying service for that employee. (3B) If: (a) subsection (3) applies in relation to a casual employee for a week beginning in a quarter; and (b) apart from this subsection, there are one or more later weeks beginning in that quarter that are not a period of qualifying service for that employee; then, for the purposes of subsection (2), rules made under subsection (3C) may set out the circumstances in which that employee is taken to have been an eligible employee for the whole of one or more of those later weeks in the capacity of a casual employee. > Note: The effect of this subsection is that, if any rules are made, the one or more of those later weeks will be periods of qualifying service for that employee. (3C) The Minister may, by legislative instrument, make rules for the purposes of subsection (3B). Effect of break period once entitled to long service leave (4) If: (a) an employee ceases to be an eligible employee for a continuous period of 8 years or more; and (b) at the time of so ceasing, the employee is entitled to long service leave under subsection (1) in respect of a period, or periods, of qualifying service (the employee’s previous qualifying service); and (c) the employee becomes an eligible employee again; paragraph (2)(c) does not apply in respect of the employee’s previous qualifying service.