12Continuity of service

12 Continuity of service

(1) Where a person is, or has been, absent, without the approval of his or her employer, from his or her employment in a qualifying service, otherwise than for a continuous period of more than 12 months, the continuity of the employment of the person in that service shall be deemed not to be, or to have been, broken by that absence, but the person shall be deemed, for the purposes of this Act, not to be, or to have been, employed in that service during the period of the absence. (2) For the purposes of this Act, a person shall be deemed not to break, or to have broken, the continuity of his or her employment in a qualifying service by reason of his or her being or having been: (a) on leave of absence with pay or part pay; or (b) on leave of absence without pay; and, subject to subsections (3) and (4), the person shall be deemed, for the purposes of this Act, to have been employed in that service during the period of the absence. (3) Subject to subsection (4), where a person is or has been absent from his or her employment on leave of absence without pay (not being leave of absence on account of illness or in respect of a period of specified defence service referred to in subsection (10)) and the period during which he or she is or was so absent would, but for this subsection, be included in his or her period of service, the period during which he or she is or was absent on that leave does not form part of his or her period of service for the purposes of this Act: (a) unless a chief executive officer, or the person who granted the leave, determined (otherwise than under this Act), either at the time of the grant or at a later time, that the period of absence be included in the person’s period of service for the purpose of the granting of long service leave; or (b) unless the approving authority determines under this Act that the period during which he or she is or was so absent be included in his or her period of service for the purposes of this Act. (4) Where a person is or has been absent from his or her employment in Government Service on leave granted for the purpose of enabling him or her to occupy an executive office as provided in subsection (11): (a) the period of the absence shall be reckoned as part of his or her period of service for the purpose of determining whether a provision of this Act that applies only to and in relation to employees whose periods of service are at least 1 year or 10 years, as the case may be, applies to and in relation to him or her; and (b) the person shall be deemed not to have been employed in that service during the period of absence for any other purpose. (5) Where a continuous period of employment of a person in a qualifying service has commenced after, but not more than 12 months after, the expiration of a continuous period of previous employment of the person in a qualifying service, those periods of employment shall, for the purposes of this Act, be deemed to be continuous with one another. (6) For the purposes of subsection (5), where a person, having ceased to be employed in a qualifying service, has undertaken a course of full‑time training: (a) under a scheme established by the Commonwealth for the training of persons who have served in the Defence Force; or (b) under a prescribed training scheme; before resuming employment in a qualifying service, the resumption of his or her employment in a qualifying service shall be deemed to have occurred not more than 12 months after he or she ceased to be so employed if the period between his or her ceasing to be so employed and the resumption of that employment, less the period of his or her course of full‑time training under that scheme, does not exceed 12 months. (7) Where a continuous period of employment of a person in a service, being Government Service or a service referred to in paragraph 11(2)(c), (d), (e) or (f), has commenced after, but not immediately after, the expiration of a continuous period of previous employment of the person in such a service, those periods of employment shall, for the purposes of this Act, be deemed to be continuous with one another if the approving authority is satisfied that: (a) the termination of his or her employment at the expiration of that period of previous employment was due to ill‑health; and (b) the commencement of that first‑mentioned period of employment occurred not more than 12 months after his or her health became so restored as to enable him or her to perform duties of a kind that were suitable to be performed by him or her having regard to the duties performed by him or her immediately before the expiration of that period of previous employment. (8) Where: (a) a continuous period of employment of a person in a service, being a service referred to in paragraph 11(2)(a) or (b), has commenced after, but not immediately after, the expiration of a continuous period of previous employment of the person in a service, being Government Service or a service referred to in paragraph 11(2)(c), (d), (e) or (f); or (b) a continuous period of employment of a person in a qualifying service has commenced after, but not immediately after, the expiration of a continuous period of previous employment of the person in a service referred to in paragraph 11(2)(a) or (b); those periods of employment referred to in paragraph (a) or (b) of this subsection, whichever is applicable, shall, for the purposes of this Act, be deemed to be continuous with one another if the approving authority is satisfied that: (c) the termination of his or her employment at the expiration of that period of previous employment was due to ill‑health; (d) the person was, due to his or her ill‑health, unemployed for a period immediately following the expiration of that period of previous employment; and (e) the commencement of the period of employment first‑ mentioned in paragraph (a) or (b), whichever is applicable, occurred not more than 12 months after the expiration of the period of unemployment referred to in paragraph (d). (9) A person shall not be deemed, for the purposes of this Act, to have been employed in a qualifying service during a period that would, but for subsection (5), (6), (7) or (8), have broken the continuity of his or her service. (10) For the purposes of subsection (3), a person shall be taken to have been absent in respect of a period of specified defence service if he or she was, during that period, serving: (a) on continuous full‑time service in the Reserves (within the meaning of the Defence Act 1903); or (b) in a part of the Reserves for such a period as was fixed by or in accordance with regulations in force under the Defence Act 1903 as in force at the relevant time; or (c) on national service. (11) For the purposes of subsection (4), an employee shall be taken to occupy an executive office if and only if: (a) the employee is an officer or employee, within the meaning of the Fair Work (Registered Organisations) Act 2009, of an organisation within the meaning of that Act; or (b) he or she occupies an office that is a prescribed office for the purposes of this subsection; and he or she is required to devote the whole of his or her time to the duties of the office.