Local Government (Long Service Leave) Regulations 2024

The regulations rely on a small number of recurring legal and payroll concepts. Understanding these is essential to applying the scheme.

Reckonable service

• Defined as a continuous period of employment with one or more employers (regulation 7(1)), measured using the detailed inclusions and exclusions in regulations 8 and 9. The regulations expressly allow that service under training contracts, multiple contracts, or simultaneous other employment does not defeat reckonable service (regulation 7(2)(a)-(c)).

Accrual period and entitlement

• The accrual period is the period of reckonable service in respect of which an entitlement to long service leave arises (regulation 4). The headline accrual rate is 13 weeks per 10 years (regulation 11). The accrual period is the unit used in averaging hours, calculating payments on termination, and apportioning liability between employers (regs 6, 20, 21, 23).

Ordinary pay and ascertainable hours

• Ordinary pay is defined functionally: ordinary weekly pay equals the normal weekly number of hours multiplied by the ordinary time rate for that week (regulation 6(2)). For employees with varied hours, the “normal weekly number of hours” is an average calculated over either the accrual period (if it falls wholly after commencement day), the 12 months immediately before the period of long service leave (if entirely before commencement day), or the higher of the two where the accrual period straddles commencement day (regulation 6(3)). The concept of “ascertainable hours worked” is used to permit averaging where records are incomplete (regulation 6(1)). Note that remuneration includes casual loading but excludes shift premiums, overtime, penalty rates and allowances for the purposes of the definition of ordinary pay (regulation 6(1) definition of remuneration).

By agreement and industrial instruments

• Where these regulations provide for a matter “by agreement”, that can be determined by an industrial instrument, a contract of employment, or a written agreement between employer and employee (regulation 5). The regulation is stated to operate subject to section 114 of the Industrial Relations Act 1979 (note to regulation 5), signalling interaction with the IR statutory framework.

Continuity mechanics

• Regulation 8 lists specific periods that are to be included in continuous service (paid leave including paid parental leave; limited unpaid leave; unpaid family and domestic violence leave; public holidays; employer-requested absences; absences because of response to hazards giving rise to a state of emergency; absences connected with refusal to carry out unsafe work; certain workers compensation accruals; casual/seasonal employee absences where there is a reasonable expectation of returning; periods following a termination to avoid obligations; reinstatement after unfair dismissal; and certain military leave). Regulation 9 details periods that do not count towards reckonable service but do not break continuity if followed immediately by re‑employment, with specific maxima and conditions.

Taking and payment rules

• Timing and notice: leave must be taken at the earliest practicable date after entitlement arises, subject to agreement and notice rules (regulation 12(1)-(3)). An employee can split leave by agreement (12(2)). One day is added for each public holiday occurring during leave if the employee would otherwise have been entitled to that holiday (12(4)).
• Employer obligations: the employer employing the employee at the time the period of long service leave starts is the payor (regulation 14(1)) and must make periodical payments on ordinary pay dates unless paid in full beforehand by agreement (14(2)-(3)). Any increases in ordinary pay that become payable during a leave period must be paid not later than the next ordinary pay date after the end of the leave (14(4)).
• Rate of pay: generally ordinary pay for each week of leave (regulation 15). Half‑pay and double‑pay options require written agreement and adjust the leave count accordingly (regulations 16-17).

Substitution and cashing out

• Cashing out of accrued entitlements while employed requires a written employee request, written employer agreement, and an adequate payment at least equal to the regulation 15 rate that would have applied (regulation 19). An employee cannot cash out leave that has not yet accrued (19(3)).
• On termination, remaining entitlements are converted to a payment equal to the aggregate amount that would have been payable if the employee had taken the remaining leave immediately before termination (regulation 20).
• For employees with at least 7 years’ reckonable service who have incomplete accrual periods at termination (except for serious and wilful misconduct), a pro rata payment is payable under a 1.3 weeks per year formula specified in regulation 21(3) (the regulation describes the calculation in terms of application of regulation 15).

Inter‑employer cost sharing and records

• The employer at the time the benefit is taken bears the cost but may recover contributions from prior employers in accordance with a formula based on variables L, S, P and TS (regulation 23). The text in the copy provided sets out the variables but the printed formula line is not present in the provided document, therefore users must consult the official published instrument for the exact arithmetic formulation. Employers must keep defined employment records and make them available on request to the employee, an authorised representative, another employer and an industrial inspector, and must retain them for at least 10 years (regulation 24). The new employer may request the former employer's details in an approved form and may rely on those details without further investigation (regulation 25).

Reinstatement and Commission involvement

• Where a dismissal is later determined by the WA Industrial Relations Commission to be harsh, oppressive or unfair and reinstatement is ordered, specific rules apply to reckonable service (regulation 8(1)(m)) and to repayment and recalculation where a statutory payment was made on termination (regulation 21(4)-(6)). The Commission is the statutorily named tribunal in those situations (definition in regulation 4).

Transitional and administrative

• The instrument repeals the earlier Local Government (Long Service Leave) Regulations and preserves previously accrued benefits for employees who had accrued entitlements before commencement day (regulations 27-28). The Departmental CEO has a defined role in approving forms for record sharing (regulation 25(5)-(6)) and a CEO of an employer may perform employer functions under the regulations subject to directions from the employer (regulation 26).

These core concepts together determine entitlement, timing, payment and inter‑employer liabilities, and they drive payroll, HR and record‑keeping practices. The regulations require written processes at multiple points and create statutory mechanics for recovery and substitution on termination or death.

Primary persons affected

• Employees defined under regulation 4: persons employed by a local government under section 5.36 of the Local Government Act 1995 or employed by WALGA. The regulation 4 definition limits the coverage to those two classes; it does not, on its face, apply to non‑local government employers (regulation 4, definition of employee).

• Employers defined under regulation 4: local governments and WALGA in relation to their employees. Where an employee has employment with multiple employers across an accrual period, the regulations specify which employer bears immediate cost and how contributions are recovered (regulation 23).

Payroll and HR officers

• Employers’ payroll and HR units must implement the ordinary pay calculation rules in regulation 6, prepare for averaging where hours vary, apply rules for periodical payment and pre‑payment (regulation 14), and process recovery deductions where advance leave is taken but accrual is incomplete (regulation 13(3)). They must also maintain and produce the required records and approved forms under regulations 24 and 25.

Industrial parties and tribunals

• Industrial instruments and agreements are expressly incorporated into the “by agreement” mechanism (regulation 5). The Western Australian Industrial Relations Commission has a role where dismissals are subsequently deemed harsh, oppressive or unfair, with consequences for reckonable service and repayment rights (regulations 8(1)(m) and 21(4)-(6)). Industrial inspectors (as defined in the Industrial Relations Act 1979) have statutory access to employment records under regulation 24(2)(d).

Former employers

• Employers who previously employed a person within an accrual period can be required to contribute to the cost of a long service benefit in accordance with regulation 23 and must comply with record‑sharing requests from a subsequent employer in approved form (regulation 25(2)-(3)).

Executors and personal representatives

• If employment terminates because of death, the personal representative of the deceased employee may request payment in respect of entitlements or expectations of long service leave under regulations 20-22 (regulation 22).

Chief Executive Officers and departmental administration

• The Departmental CEO may approve the forms used for record sharing (regulation 25(5)-(6)). An employer’s CEO may exercise the employer’s functions under the regulations for other employees subject to employer directions (regulation 26).

People who are affected indirectly

• Contractors and non‑employees are not covered by these regulations unless they are employed under the specified employment relationships (regulation 4). Casual and seasonal employees are specifically addressed for continuity purposes (regulation 8(1)(k)), which may extend coverage to some casuals where a reasonable expectation of return exists.

Situations that materially affect who benefits or pays

• Transfers of business where a transferor is not an employer to an employer are covered; transferred employees are treated as if the transferor were an employer for the purposes of reckonable service continuity (regulation 10). Where an employee’s accrual period spans employment with multiple employers, the employer at the time leave is taken bears the cost initially, but has a statutory right to recover contributions from prior employers (regulation 23). This places practical obligations on both receiving and former employers to cooperate on records and cost apportionment (regulations 24-25).

Limitations and exclusions

• The specified coverage is to local government employers and WALGA only; the regulations do not purport to rewrite long service leave entitlements for other sectors. The “by agreement” construct is expressly subject to the Industrial Relations Act 1979 s 114 (note to regulation 5), which constrains contractually-negotiated outcomes by reference to the wider IR framework.

Timing for stakeholders

• Employers must be compliant from the commencement dates: initial publication provisions (regs 1-2) and the substantive commencement date (1 September 2024), with a later amendment effective 3 November 2024 (compilation table). Employers with employees who had accrued benefits under the earlier regulations must preserve those accrued benefits under the saving provision (regulation 28).

In short, the regulations primarily affect local governments and WALGA as employers, their local government employees, payroll and HR functions, and any prior employers whose employees’ reckonable service contributes to accrual periods. They also engage the WA Industrial Relations Commission and departmental administrative functions via form approval.

The regulations allocate a mixture of mandatory duties on employers, optional rights for employees, and mutual agreement-based options. Below are the principal duties and rights, with references.

Employer duties

• Pay for long service leave: the employer in whose employment an employee is when the leave starts must pay the employee at the rate determined under regulation 15, and make payments periodical on usual pay dates unless paid in full beforehand by agreement (regulation 14(1)-(3)). If pay increases after the start of leave, the employer must pay the increased amount by the next ordinary pay date after the leave ends (regulation 14(4)).

• Observe ordinary pay calculation rules: compute ordinary pay as defined in regulation 6 and apply the averaging rules for varied hours (regulation 6(2)-(4)).

• Allow timely taking of leave: where an employee is entitled, the employer must allow leave to be taken at the earliest practicable date, and must accept the employee’s choice to split leave where agreed (regulation 12(1)-(2)). Employers also must comply with specified notice periods: 2 weeks’ written notice from the employee or 2 months’ written notice from the employer for a leave start date not earlier than 12 months after entitlement (regulation 12(3)(b)).

• Maintain and disclose records: keep the specified employee records for at least 10 years after termination (regulation 24(1) and (3)), and provide records on written request to the employee, an authorised representative, another employer or an industrial inspector (regulation 24(2)).

• Recover and make contributions: if the accrual period spans multiple employers, the employer bearing the cost can recover contributions from other employers as determined under regulation 23(3)-(4). Where an employee takes advance leave and terminates before completing the accrual period, the employer may recover the excess paid for advance leave by deduction from termination payments (regulation 13(3)) and must distribute recovered amounts to contributing employers (13(4)).

Employee rights

• Statutory entitlement: employees complete reckonable service and become entitled to 13 weeks per 10 years (regulation 11).

• Choice and notice: employees have rights to request timing of leave, to split leave by agreement, to request cashing out of accrued leave while employed, to take advance leave after 7 years by agreement, and to take leave at half pay or double pay by written agreement (regulations 12-13, 16-19).

• Protection on termination: employees who terminate after at least 7 years’ service (other than where terminated for serious and wilful misconduct) have a statutory pro rata payment in substitution for expectation of long service leave (regulation 21(2)-(3)). Employees who die have their personal representative entitled to receive payments on request under regulation 22.

• Access to records: employees can inspect their employment records on written request, and authorise others to do so (regulation 24(2)(a)-(b)). New employers may request former employer records and may rely on the supplied details in calculating entitlements (regulation 25(2)-(4)).

Agreement-based options

• Cashing out: an employee may request to cash out accrued leave while employed, but only by written request and with written employer agreement and an adequate payment at least equal to the rate under regulation 15 (regulation 19).

• Advance leave: employees with at least 7 years’ reckonable service may take advance leave by agreement, with specific accrual consequences and recovery mechanisms if employment terminates early (regulation 13).

• Half and double pay options: permitted by written agreement with corresponding adjustments to the amount of leave treated as taken (regulations 16-17).

Enforcement and procedural rights

• Industrial inspectors can inspect employment records under regulation 24(2)(d).

• The Commission’s determinations on unfair dismissals trigger specific reckonable service and repayment consequences (regulations 8(1)(m) and 21(4)-(6)).

Administrative duties and rights

• Employers must use approved forms for record-sharing requests and responses where the Departmental CEO has approved forms (regulation 25(5)-(6)), and the Department must publish the approved form on its website (25(6)(d)).

• CEO delegation: the employer’s CEO may exercise employer functions under these regulations in relation to employees other than the CEO, subject to employer directions (regulation 26).

Key limitations on rights

• Cashing out is limited to accrued entitlements (regulation 19(3)). Advance leave affects future accrual until the original accrual period is completed (regulation 13(2)). Payment in substitution on termination for incomplete accrual periods only applies once the employee has completed at least 7 years’ reckonable service and is not terminated for serious and wilful misconduct (regulation 21(2)).

In short, the regulations impose clear payroll and record-keeping obligations on employers, grant specified statutory entitlements to employees, and enable a set of agreement-based choices, while setting out mechanisms for inter‑employer cost recovery and tribunal‑triggered adjustments in the event of unfair dismissal.

The regulations themselves do not create express criminal offences or specify monetary fines for non‑compliance within the text provided. Instead, enforcement operates through administrative and civil mechanisms embedded in the scheme.

Administrative and civil enforcement mechanisms present in the instrument

• Record access and inspection: the regulations grant inspection rights to industrial inspectors (regulation 24(2)(d)). Industrial inspectors, under the Industrial Relations Act 1979, have investigatory functions that can lead to compliance actions; the regulations provide the statutory right of access to the prescribed records.

• Deductions and recovery mechanics: the regulations create self‑help enforcement in the form of employer deductions and recoveries. Employers may deduct from termination payments the amount necessary to recover excess payments made for advance leave where the accrual period is incomplete (regulation 13(3)). Employers who bear the cost of a benefit may recover contributions from other employers under the statutory formula (regulation 23(3)-(4)). These are contractual/statutory counter‑claims rather than penal sanctions.

• Commission orders with operative consequences: where the WA Industrial Relations Commission determines a dismissal was harsh, oppressive or unfair and orders reinstatement, the regulations provide for specific remedial consequences: a period may be included in reckonable service (regulation 8(1)(m)) and, where a statutory payment was made at termination, the employee may repay that amount and have entitlements recalculated as if the payment had not been made (regulation 21(4)-(6)). The Commission’s orders therefore have retrospective operational effect on entitlements and payments.

• Employment law remedies: while not specified in the regulations, failures to comply with statutory entitlement obligations may give rise to obligations enforceable under the broader industrial relations framework (for example, claims under industrial instruments or for breach of statutory entitlements), and the regulations’ note that regulation 5 has effect subject to Industrial Relations Act 1979 s 114 points to wider statutory mechanisms that can affect enforceability. The regulations also specifically permit reliance on former employer records by a new employer (regulation 25(4)), which reduces factual disputes on entitlement calculation when records are properly shared.

What the regulations do not do, in this instrument

• No express penalties: the regulations do not themselves prescribe fines, penalties or criminal offences for non‑compliance with the payment, record‑keeping and disclosure duties. It is therefore necessary to look to the Local Government Act, Industrial Relations Act, or other statutory frameworks for penal enforcement if required. The regulations do create restitution and deduction mechanisms for employers (13, 23).

Practical enforcement risks and mechanisms

• Recovery by deduction creates an immediate cash‑flow enforcement tool for employers, but it must be exercised consistent with the regulation’s limits (13(3), 13(4)). Employers who recover amounts must also pay recovered shares to contributing employers (13(4)).

• The Commission’s involvement in unfair dismissal determinations can undo payments made at termination and triggers the repayment and recalculation mechanics in regulation 21(5)-(6). This creates a contingent enforcement and remedy pathway which can alter employer liabilities after the fact.

• Record-keeping and record access are the primary compliance levers: employers who fail to keep or produce records expose themselves to disputes that will be decided on the available evidence and to inspection by industrial inspectors (regulation 24).

Summary

• Enforcement under these regulations is primarily through civil and administrative routes: statutory deductions/recoveries, record inspection and production obligations, and the Commission’s remedial powers in unfair dismissal cases. The regulations do not themselves create standalone penalty provisions; where criminal or monetary penalties are to be applied, those will come from other parts of the statutory framework or industrial instruments referenced in the regulations.

The regulations are intentionally interwoven with other workplace statutes and instruments; the text cross‑references and relies on other laws to determine scope, process and effect.

Express statutory cross‑references within the regulations

• Local Government Act 1995: these regulations are made for the purposes of section 5.48 of the Act (regulation 3). The Act defines the broader long service benefit power; the regulations specify the operative details.

• Industrial Relations Act 1979 (WA): the definition of Commission refers to the Western Australian Industrial Relations Commission continued by the Industrial Relations Act 1979 section 8 (regulation 4). The note to regulation 5 expressly states regulation 5 has effect subject to Industrial Relations Act 1979 section 114, which will govern the interaction between regulation-based “by agreement” provisions and the wider IR statutory architecture.

• Fair Work Act 2009 (Cth) and transitional Commonwealth instruments: the definition of industrial instrument includes awards and agreements made under the Fair Work Act and instruments given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (regulation 4). This recognises federal industrial instruments as potential sources of “by agreement” determinations.

• Minimum Conditions of Employment Act 1993 (WA): the definition of unpaid family and domestic violence leave cited in regulation 8(1)(b) is taken from that Act, and the regulations rely on it to determine reckonable service inclusion.

• Paid Parental Leave Act 2010 (Cth): payments under that Act are expressly included as paid leave that counts towards reckonable service (regulation 8(1)(a)).

• Workers Compensation and Injury Management Act 2023 (WA): regulation 8(1)(j) includes periods for which, under that Act section 61(2)(d), the employee is to accrue entitlements to long service leave, giving workers compensation-related absences reckonable status to the extent provided in the workers compensation statute.

• Emergency Management Act 2005 (WA): regulation 8(1)(f) includes absences arising out of or in connection with the employer's response to a hazard giving rise to a state of emergency declaration as reckonable service; the regulation cites the Emergency Management Act 2005 section 3 definition.

• Vocational Education and Training Act 1996 (WA): training contracts registered under that Act are specifically noted as not defeating reckonable service (regulation 7(2)(a)).

• Defence Act 1903 (Cth): regulation 8(1)(n) treats service in the naval, military or air forces of the Commonwealth other than as a member of the Permanent Forces as a reckonable interruption, provided the employee returns to work as soon as practicable.

• Long Service Leave Act 1958 (WA): the regulation on transferred employees (regulation 10) borrows definitions (“transfer of business” and “transferring employee”) from the Long Service Leave Act 1958 sections 7E and 7F and treats the transferor as an employer for reckonable service rules.

Operational interactions and constraints

• By agreement subject to industrial law: where the regulations permit matters to be determined “by agreement” (regulation 5), that route can be exercised by industrial instruments or contracts; however, it remains subject to the Industrial Relations Act 1979 s 114, and the definition of industrial instrument imports award/enterprise agreement settings under state and federal law (regulation 4). Practitioners must therefore ensure that enterprise agreements, awards, or Fair Work instruments are considered when negotiating or enforcing written agreements under these regulations.

• Commission determinations: the Commission’s unfair dismissal determinations under the Industrial Relations Act or relevant industrial instruments can alter reckonable service and payment obligations under these regulations (regulations 8(1)(m), 21(4)-(6)). That means orders made by the Commission can carry targeted retrospective effect as to reckonable service and payments for long service leave.

• Records and evidence: the new employer may rely on former employer records provided under regulation 25(4) “without further investigation” when calculating entitlements, which affects disputes about service when a worker moves between employers. However, other statutory obligations (for instance privacy law, confidentiality or taxation reporting) remain engaged outside the regulations.

• Workers’ compensation and special leave: where state workers’ compensation rules provide for accrual of long service leave in specified circumstances, the regulations adopt that accrual as reckonable service (regulation 8(1)(j)). Similarly, paid parental leave under Commonwealth law counts as paid leave for reckonable service (regulation 8(1)(a)).

• Repeal and saving: the regulations repeal the previous Local Government (Long Service Leave) Regulations (regulation 27) but preserve accrued benefits by saving accrued entitlements so they can be taken as if accrued under the new regulations (regulation 28).

Matters requiring caution because of statutory interaction

• The note to regulation 5 makes explicit that not all “by agreement” outcomes can be exercised free of the wider IR Act. Practitioners must check relevant awards, enterprise agreements and the IR Act to determine whether a proposed agreement would be inconsistent or subject to a statutory prohibition.

• Calculation of ordinary pay excludes certain items (shift premiums, overtime, penalties or allowances) while including casual loading (regulation 6). This interacts with payroll classification under awards and agreements and with taxation/timesheet records, so employers must reconcile industrial instrument definitions with the regulation 6 definitions.

• The missing printed formula line in regulation 23(4) as reproduced in the provided copy means the exact arithmetic for contribution recovery must be confirmed against the official published instrument: the regulation sets out the variables (C, L, S, P, TS) but the formula line itself is not present in the provided text.

In summary, these regulations operate within a mesh of state and federal industrial statutes and instruments, and their application frequently depends on or is constrained by those other legal instruments, as the regulations themselves acknowledge.

The instrument contains its own commencement and compilation information, and one explicit amendment is recorded in the compilation table. The crucial dates and changes in the provided document are:

• Principal instrument: Local Government (Long Service Leave) Regulations 2024, SL 2024/51, published 17 April 2024. Regulations 1 and 2 (citation and commencement) commenced on the day of publication (17 April 2024) and the remainder of the regulations commenced 1 September 2024, per regulation 2 and the compilation table.

• Subsequent amendment: Local Government Regulations Amendment Regulations (No. 2) 2024, Part 2, SL 2024/221, published 30 October 2024. The compilation table indicates this amendment commenced 3 November 2024 (see r 2(b) of the amending instrument). Regulation 8 contains an amendment flag: “[Regulation 8 amended: SL 2024/221 r. 4.]” which confirms that the amendment instrument modified regulation 8. The compilation table entry corresponds to that change.

• Repeal of prior regulations: regulation 27 expressly repeals the prior Local Government (Long Service Leave) Regulations. The saving provision in regulation 28 preserves accrued benefits arising under the repealed instrument.

Documented drafting features and transitional mechanisms

• Regulation 28 operates as the primary transitional mechanism: employees who immediately before commencement day were entitled to an accrued benefit under the repealed regulations retain that accrued benefit and may take it as if it accrued under the current regulations (regulation 28(1)-(2)). Practitioners handling transfers or ongoing accrual should apply the saving provision when reconciling pre‑commencement entitlements.

• The amendment to regulation 8 in SL 2024/221 r.4: the provided text shows regulation 8 as amended; the bracketed amendment note appears immediately after subregulation (2). The compilation table shows the amending instrument’s publication and commencement dates. Users should consult the amending instrument for the precise changes made to regulation 8, but the provided regulation 8 text already incorporates the amendment, as indicated.

Limitations of the printed compilation

• The compilation table lists the instruments and commencement dates that form part of the official legislative history included in the printed compilation. If an authorised consolidated version is required for legal work, practitioners should refer to the WA legislation website consolidation and note any subsequent amending instruments beyond those listed in the compilation table.

Practical implication of the amendment history

• Employers and payroll officers must be aware that the substantive rules took effect on 1 September 2024 and that regulation 8 was amended effective 3 November 2024; this affects how reckonable service continuity and specific subcomponents of regulation 8 apply to periods spanning those dates. Where employee service spans the earlier regulations and the 2024 regulations, the saving provision governs accrued benefits.

In short, the 2024 regulations are the operative instrument as of 1 September 2024 (with earlier publication of r 1-2), with a discrete amendment on 3 November 2024 affecting regulation 8; accrued entitlements under the repealed instrument are saved.

The text of the instrument as provided contains no cited cases, reported litigation, or tribunal decisions. It names the Western Australian Industrial Relations Commission as the relevant tribunal (definition in regulation 4) and prescribes consequences where the Commission determines a dismissal to be harsh, oppressive or unfair (regulation 8(1)(m) and regulation 21(4)-(6)), but the regulations do not cite any prior judicial or tribunal determinations nor record a litigation history.

What the absence of litigation references means here

• The regulations are prescriptive and administrative; they do not themselves recount litigation or authority. Where disputes arise, the WA Industrial Relations Commission or other industrial tribunals and courts applying the referenced statutes would be the forums to determine contested issues such as unfair dismissal, interpretation of reckonable service in edge cases, or enforcement of record-sharing and recovery provisions. The regulations signal those pathways but do not report prior outcomes.

Potential litigation touchpoints

• Interpretation of “ascertainable hours” and the averaging rules in regulation 6(1)-(4) could be contested where records are incomplete and leave calculations materially affect payments.

• Application of the continuity inclusions and exclusions in regulations 8 and 9 could be the subject of disputes where employers claim breaks in service and employees claim continuity for the purposes of accrual.

• The exercise of recovery and deduction powers under regulation 13(3) and contribution claims under regulation 23 may lead to disputes between employers, particularly where the exact formula or its application (including any missing or ambiguous text in a published copy) is contested.

• Commission determinations of unfair dismissal that trigger rules in regulation 8(1)(m) and 21(4)-(6) will generate litigation involving recalculation of entitlements and the operation of repayment windows.

Recommendation for practitioners seeking precedent

• Because the instrument itself does not include litigation history, practitioners should search the WA Industrial Relations Commission and court databases for decisions interpreting these regulations and the predecessor regulations where relevant. They should also check whether any relevant decisions under the Long Service Leave Act 1958 or related state and federal industrial instruments have been applied by tribunals to local government long service leave contexts.

In sum, the regulations create several predictable dispute areas but contain no internal litigation history. Dispute resolution will occur through the normal industrial and court channels referenced in the regulations.

The regulations are detailed but contain several points that create practical traps for employers, employees and advisers. These are issues where a straightforward reading can be misleading or where administrative failure creates downstream liabilities.

1. Averaging ordinary hours when records are incomplete or accruals straddle commencement day (regulation 6)

• Ordinary pay depends on the “normal weekly number of hours” (regulation 6(2)). For varied hours, the instrument prescribes different averaging bases depending on whether the accrual period falls before or after commencement day, or straddles it (6(3)). Where complete and accurate records are not available, “ascertainable hours” are to be used and extrapolated (6(1)). Employers must keep accurate time records; otherwise the employer may be required to extrapolate and that may produce an adverse result for budgeting and payment accuracy.

2. Missing formula text in the provided compilation for contribution recovery (regulation 23(4))

• The provided copy lists the variables used to determine an employer’s recoverable contribution (C, L, S, P, TS) but lacks the printed arithmetic formula line. Do not assume the formula; consult the official consolidated legislation on the WA legislation website for the precise calculation. Practically, this gap means employers cannot safely compute recoveries based solely on the provided copy.

3. Advance leave recovery mechanics (regulation 13)

• If an employee takes advance leave after 7 years but leaves before completing the accrual period, the employer may deduct the excess from termination payments (13(3)). Employers must ensure written agreements and maintain accurate records of amounts advanced and what would have been payable under regulation 21 to avoid disputes. The employer must also pay a proportionate share of any recovered amount to other contributing employers (13(4)), which requires coordination.

4. Cashing out limited to accrued entitlements (regulation 19)

• Cashing out requires an employee request, employer agreement and an “adequate” payment at least equal to the regulation 15 rate. Employees cannot cash out unaccrued entitlement (19(3)). Employers must verify accrual before agreeing to cash out; failing to do so risks unlawful deductions or disputes.

5. Half‑pay and double‑pay options adjust both pay and leave balance (regulations 16-17)

• Written agreement that leave is taken at half pay reduces the rate per week but halves the leave consumption; double pay doubles the pay per week and doubles the period taken into account for remaining leave calculations. Payroll systems must correctly adjust both pay and remaining leave entitlements.

6. Continuity rules may include employer-requested absences and emergency response absences (regulation 8(1)(h) and (f))

• Absences at the direction of the employer and absences related to employer responses to hazards giving rise to a state of emergency are expressly reckonable. Employers may face unexpected accrual liability where they direct absences (e.g. stood‑down work) or where an employee participates in emergency response work.

7. Casual and seasonal employee protections (regulation 8(1)(k))

• For casual or seasonal employees, specified absences can still count where there is a regular and systematic pattern and a reasonable expectation of returning to work. This can extend entitlement to some casuals; employers should not assume casual status alone excludes accrual.

8. Reliance on former employer records without further investigation (regulation 25(4))

• A new employer may rely on details provided by a former employer “without further investigation” for calculating entitlements. That simplifies on‑boarding but exposes the new employer to risk if the former employer supplied incorrect information; however, the regulation permits reliance, which may limit subsequent challenge on the factual basis of the calculation.

9. Reinstatement and repayment timing (regulation 21(5)-(6))

• Where an employee who received a statutory payment on termination is reinstated following a Commission determination, the employee has a 3‑month window to repay the statutory payment. If repayment occurs, entitlements must be recalculated as if the payment had not been made. Employers and payroll must track these timelines closely.

10. No express penalty provisions in the regulations

• Because the instrument does not list penalties, enforcement may arise through other statutes or industrial instruments. Employers cannot assume that lack of explicit fines means no exposure; failure to pay entitlements or produce records can lead to industrial claims and Commission proceedings.

11. Departmental forms and publication obligations (regulation 25(6))

• The Departmental CEO must approve the forms used for record‑sharing, and the approved form must be published on the Department’s website. Employers must use the approved form; using an unapproved form risks non-compliance with the procedural requirements.

12. Employer at the time leave starts bears cost (regulation 14(1) and 23(3)(a))

• The employer in whose employment the employee is at the time leave starts must pay the benefit but can recover from other employers using the contribution mechanism. Employers acquiring staff should be prepared to meet immediate cash costs and then invoice prior employers, rather than expecting prior employers to pay up front.

In practice, these “gotchas” create administrative and evidential responsibilities: solid record‑keeping, properly executed written agreements at each discretionary decision point, careful calculation rules and attention to approved forms and Commission timelines.

This section sets out practical compliance steps for employers, payroll/HR officers, and employees migrating between employers. Each step points to the relevant regulation(s).

1. Establish clear documented policies and templates

• Create standard written agreement templates for: timing of leave (regulation 12(3)(a)), advance leave agreements (regulation 13(1)), cashing out requests and employer consents (regulation 19(1)), half and double pay agreements (regulations 16-17), and any pre‑payment agreements (regulation 14(3)). Ensure templates record the accrual period, number of weeks, rate of payment, and the employee’s written consent.

2. Update payroll systems to implement ordinary pay rules

• Configure payroll to calculate ordinary pay as defined: ordinary weekly hours times ordinary time rate (regulation 6(2)). Implement averaging logic for varied hours per regulation 6(3) and the ascertainable hours extrapolation rule (6(1)). Exclude shift premiums, overtime, penalty rates and allowances from the ordinary pay base, but include casual loading where applicable (6(1) definition of remuneration).

3. Maintain and retain robust employment records

• Keep records for each employee including the items listed in regulation 24(1) (name; usual position and ordinary time rate excluding allowances; hours worked each week; employment start and end dates; details of service with other employers; absences; entitlement to long service leave; details of any long service benefit granted; details of any payment recovered on termination). Retain these records for at least 10 years after termination (regulation 24(3)). Establish secure, retrievable storage and processes to respond to written requests.

4. Implement processes to respond to record requests and use approved forms

• Where an employee moves employers, have systems to request former employer details in the approved form under regulation 25(2). Ensure the Departmental CEO’s approved forms are used (25(5)-(6)) and published on the Department’s website. Train HR to comply with the obligation to provide the former employer information and to rely on provided details when computing entitlements (25(3)-(4)).

5. Manage advance leave and recovery risk

• For employees taking advance leave (eligible after 7 years, regulation 13(1)), document the agreement in writing and record the related accrual period. If the employee’s employment terminates before the accrual period completes, compute the recoverable amount as the excess of what was paid for the advance leave over the amount payable under regulation 21, and implement deduction from termination pay in accordance with regulation 13(3). Prepare to distribute recovered amounts to contributing employers under 13(4).

6. Apply termination payment calculations precisely

• On termination where there is a remaining long service leave entitlement, compute the payment under regulation 20(2): convert remaining leave entitlement to the payment that would have been payable under regulation 15 if the leave had been taken immediately prior to termination. For incomplete accrual periods where the employee has at least 7 years’ reckonable service and is not terminated for serious and wilful misconduct, calculate the pro rata 1.3 weeks per year entitlement and apply regulation 15 for the payment (regulation 21(3)).

7. Handle cashing out properly

• Implement a formal process for employees to make a written request to cash out accrued leave, and for employers to give written consent (regulation 19(1)(a)-(b)). Verify accrual before cashing out because regulation 19(3) prohibits cashing out unaccrued leave. Ensure payment is at least equal to the regulation 15 rate (regulation 19(2)).

8. Train managers on notice and other leave timing obligations

• Ensure line managers understand notice and timing rules: employees must take leave at the earliest practicable date (regulation 12(1)); leave can be split by agreement (12(2)); a leave start date not earlier than 12 months after entitlement needs either 2 weeks’ written notice from the employee or 2 months’ written notice from the employer (12(3)). For leave spanning public holidays, add 1 day of leave for each public holiday that the employee would have been entitled to under their conditions of employment (12(4)).

9. Prepare for inter‑employer contributions and transfers of business

• Where an accrual period covers service with multiple employers, be ready to use regulation 23 for cost sharing. Ensure HR systems can produce the inputs for the contribution variables (L, S, P, TS). Because the provided copy omitted the printed formula line for subregulation 23(4), consult the official legislation to implement the precise arithmetic. Where a transfer of business applies, treat the transferor as an employer for the reckonable service mechanics (regulation 10).

10. Comply with the restricted employment during leave rule

• Inform employees that they must not, except with written agreement, undertake other paid employment in substitution for their position while on long service leave (regulation 18). Put procedures in place to obtain written permission or to record breaches.

11. Monitor unfair dismissal and Commission consequences

• If a dismissal is the subject of a Commission determination that it was harsh, oppressive or unfair, implement the consequences in regulations 8(1)(m) and 21(4)-(6): reckonable service can be treated as continuous and the employee has a 3‑month window to repay statutory payments received on termination if reinstated; if repayment occurs, recompute entitlements as if the payment had not been made.

12. Coordinate with payroll agents and professional advisers

• Given the interaction with federal awards and agreements (regulation 4 definition of industrial instrument and regulation 5), consult award terms and enterprise agreements before finalising written agreements that amend leave timing or payment. Where necessary, obtain legal or payroll professional advice to align regulation‑based calculations with award and tax reporting.

13. Document delegation to CEO and administrative roles

• Where the CEO of an employer is to exercise employer functions under regulation 26, document the employer’s direction authorising the CEO, and ensure the council retains responsibility for CEO entitlements under the Local Government Act s 2.7(1)(b) (note to regulation 26).

14. Use the saving provision correctly

• For employees with accrued benefits under the repealed regulations immediately before commencement day, recognise that those accrued benefits are retained and may be taken as if accrued under the current regulations (regulation 28). Ensure transition calculations reflect both pre‑commencement accruals and the new rules where relevant.

15. Maintain an audit trail and dispute protocol

• Record decisions on leave timing, cashing out, advance leave, half/double pay elections, and inter‑employer contribution calculations. Set up a dispute resolution workflow that references the Industrial Relations Act and available Commission remedies.

Adopting these steps will align an employer’s payroll, HR and record‑keeping practices with the statutory mechanics in the regulations and reduce the risk of disputes. Always confirm calculations against the official consolidated legislation on the WA legislation website before finalising payments or recoveries.