Pre-school Teachers and Assistants (Leave) Act 1984

Definitions and coverage

The Act’s central concepts are defined in s 3(1). Key definitional points that structure coverage and operation are:

• Award, Fair Work Commission and sick leave: the Act imports contemporary Commonwealth industrial instruments into its vocabulary. The definition of “award” lists enterprise agreements, modern awards, determinations and transitional instruments under the Fair Work Act 2009 (s 3(1) award). “Sick leave” is defined as paid leave for illness or injury under an award or the National Employment Standards under the Fair Work Act, but excludes periods for which the worker is entitled to compensation payments under an Act (s 3(1) sick leave).
• Who is a pre-school teacher and assistant: the Act defines “pre-school teacher” by reference to registration and prescribed qualifications (registered primary teacher; prescribed qualifications in pre-school or early childhood teaching; or as a play leader). “Pre-school assistant” is either someone employed to assist when children are in attendance or a prescribed person (s 3(1) pre-school teacher; pre-school assistant). The “prescribed” toggle is a regulation-making point that the Act leaves to the Governor in Council (s 3 definitions).
• Relevant workplaces: a kindergarten or play centre becomes a “relevant kindergarten” or “relevant play centre” by Governor in Council Order published in the Government Gazette; the Order may operate retrospectively or prospectively (s 3(2)-(5)).

Entitlement and portability mechanics

• Long service leave accrual calculation: s 4 governs how periods of employment in the declared sector are to be taken into account when computing entitlement to long service leave or pay in lieu. It directs that, in computing periods of employment, account shall be taken of periods calculated under either regulations made for the purposes of s 50 of the Local Government Act 2020 (resulting in an accrual equivalent of nine days per completed year for employees covered by those regulations), or under the Long Service Leave Act 2018 (resulting in six days per completed year) (s 4(1) and s 4(2)(a)-(b)). The provision therefore maps sector service to the accrual geometry of two different statutory regimes, depending on which applies to the employee.
• Exclusions from reckoning: s 4(3) excludes interruptions or absences of certain kinds (those listed in s 5(g)-(m)) from the periods to be taken into account and excludes any periods already subject to long service leave or pay in lieu (s 4(3)(a)-(b)). This limits double counting.
• Continuity of employment: s 5 lists specific absences and interruptions that do not break continuity of employment for the purposes of the Act. The list includes annual and long service leave (s 5(a)), illness and injury up to different thresholds depending on coverage (s 5(b)-(c)), industrial disputes (s 5(g)), re-employment within three months of dismissal (s 5(h)), standing down when no work is available (s 5(i)), pregnancy-related absences with different maximum durations for teachers and assistants (s 5(j)-(k)), and employer-approved absences (s 5(l)-(m)). Section 5(e) treats an interruption or ending of employment where the employer intended to avoid leave obligations as not breaking continuity.
• Sick leave portability: s 4A requires an employer to credit a pre-school worker with sick leave accrued during prior periods of employment at pre-school workplaces if the employment is continuous, subject to the exception that employers need not credit sick leave that the worker has already taken (s 4A(2)-(3)). The section applies to past and future periods (s 4A(4)) and preserves any award express contrary provision (s 4A(5)).

Regulation and executive discretion

• The Governor in Council has the power to declare relevant sites (s 3(2)-(3)) and to make regulations for any matter necessary to carry the Act into effect (s 6). That includes prescribing “prescribed” matters such as qualifications and persons referenced in the definitions.

Links to other instruments

• The Act expressly integrates with the Long Service Leave Act 2018 and the Local Government Act 2020 through s 4 references, and with Commonwealth industrial instruments through its import of the Fair Work Act definitions for “award” and the Fair Work Commission. These cross-references determine accrual rates and influence sick leave definitions.

Practical implications of the definitions and cross-references

• The differing accrual rates (nine days vs six days per year) create a mechanical difference in how service converts into long service leave entitlement depending on which regulatory coverage applies to the employee (s 4(2)). Employers must therefore determine which sub-regime governs their staff to compute entitlements correctly.
• The Governor in Council’s declaratory power and the “prescribed” hooks mean that the Act’s exact scope and the content of key definitional categories can change through delegated instruments and Gazette notices. Practitioners must therefore consult both the primary text and any relevant Orders and regulations.

The Act’s coverage is functional and place-based. It affects three principal groups: pre-school workers (teachers and assistants), employers operating declared kindergartens and play centres, and the executive and regulatory agencies that make Orders and regulations.

Pre-school workers

• Employees defined as pre-school teachers or pre-school assistants by s 3(1) are directly affected. A “pre-school teacher” includes registered primary teachers and persons with prescribed pre-school or early childhood qualifications or play leader qualifications; a “pre-school assistant” is anyone employed to assist a pre-school teacher while children are present or a prescribed person. The Act thereby targets workers with particular qualifications or roles rather than all employees at a given site.
• The Act affects both incumbent employees and those with prior service at other relevant pre-school workplaces. Section 4A expressly applies to periods of employment before or after the commencement of that section and requires crediting of previously accrued sick leave when employment is continuous (s 4A(4)). That creates portability for accrued sick leave across pre-school workplaces when continuity is established.

Employers

• Employers of declared kindergartens and play centres are obliged to compute long service leave entitlement in the manner set out in s 4 and to credit accrued sick leave for incoming employees where continuity exists (s 4A). These are liability, recordkeeping and payroll obligations.
• Employers in the local government coverage stream (employees covered by regulations made for s 50 of the Local Government Act 2020) must use the nine-days-per-year metric for the purposes of computing periods of employment under s 4(2)(a). Employers whose employees fall under the Long Service Leave Act 2018 use the six-days-per-year metric under s 4(2)(b). Employers therefore must determine which statutory overlay applies to individuals to compute entitlements correctly.
• Employers also face an expressive prohibition on contrived endings aimed at avoiding leave obligations: s 5(e) treats such tactics as not breaking continuity. That changes the legal calculus for employers seeking to reduce leave liabilities by dismissing and re-engaging staff in a contrived manner.

Decision-makers and regulators

• The Governor in Council decides which kindergartens and play centres are “relevant” under s 3(2)-(3) and may prescribe qualifications and persons referenced in the definitions. This concentrates coverage decisions in the executive administrative sphere.
• The Governor in Council also makes regulations under s 6 for any necessary matter to carry the Act into effect. Those regulations may define the scope of coverage and influence employers’ obligations and workers’ rights. Because the Act expects other instruments (Local Government Act 2020; Long Service Leave Act 2018; Fair Work Act 2009) to supply material inputs, agencies implementing those statutes and the Fair Work Commission’s instruments indirectly affect how this Act operates in practice.

Who bears costs and who gains

• The immediate cost of complying with the Act falls on employers in the declared sector because they must credit prior sick leave and compute long service leave using the specified rules, and must maintain records where continuity is relied upon. The Act does not create a central payment pool or transfer mechanism; it requires employers individually to carry liabilities and treat service as continuous for accrual purposes.
• The direct recipients of the portability and continuity rules are pre-school teachers and assistants who have accumulated service or sick leave in earlier pre-school workplaces. They gain the ability, in defined circumstances, to carry those entitlements between employers and to have interruptions and absences treated as not severing continuity.

Geographic and institutional scope

• The Act applies to declared kindergartens and play centres in Victoria. The scope of the declaration power allows the Governor in Council to vary the set of covered workplaces by Order in the Government Gazette and to apply declarations to past or future periods (s 3(5)). Practitioners must therefore check Gazettes and regulations to determine whether a particular workplace is “relevant” at a given time.
• The Act’s reliance on Commonwealth industrial instruments and state long-service leave and local government provisions means the practical coverage of workers will depend on interplay between state regulations, federal awards, and transitional instruments noted in the award definition (s 3(1) award).

Duties imposed by the Act

• Credit prior sick leave on transfer where employment is continuous: s 4A(2) requires an employer to credit a pre-school worker with sick leave accrued during prior employment at pre-school workplaces if both employments are continuous. The employer need not credit sick leave already taken by the worker (s 4A(3)). This duty applies to both past and future periods of employment (s 4A(4)).
• Count prior periods as service for long service leave accrual: s 4(1) directs that, in computing periods of employment for long service leave entitlements, account shall be taken of periods calculated under the Local Government Act 2020 regulations or under the Long Service Leave Act 2018 as specified in s 4(2). Employers must therefore apply those mechanics when calculating entitlement and pay in lieu.
• Treat employment as continuous in specified circumstances: s 5 sets out a non-exhaustive list of absences and interruptions that do not break continuity of employment for the purposes of this Act. Employers must therefore treat these absences as not terminating continuity when calculating entitlements, unless an award specifies otherwise in the case of sick leave portability per s 4A(5).

Rights and protections created or preserved

• Workers’ entitlement to have service credited: pre-school workers have a right, where the statutory conditions are satisfied, to have prior service accounted for in long service leave calculations (s 4) and to have accrued sick leave credited on continuous transfers (s 4A).
• Protection against employer avoidance tactics: s 5(e) deems an interruption or ending of employment that was made with the intention of avoiding long service or annual leave obligations to be continuous. That right is defensive: it prevents employers from defeating accruals by contrived terminations or interruptions.
• Preservation of award exceptions: s 4A(5) provides that awards can contain express contrary provision. That preserves the possibility of a bargaining or award-derived variation to the sick leave portability rule where the award expresses a contrary position.

Operational duties and recordkeeping

• Employers will need to identify whether a workplace is declared “relevant” (s 3(2)-(5)), determine whether employees are covered by Local Government Act 2020 regulations or the Long Service Leave Act 2018 (s 4(2)), and keep records of prior service, dates of absences, and reasons for any breaks. The Act requires recognition of continuity across a range of absences (s 5(a)-(m)), and the employer must apply these rules in practice to compute entitlements.

Delegated powers affecting duties

• The Governor in Council’s power to declare relevant workplaces and to make regulations (s 3(2)-(3); s 6) means duties and rights under the Act can be affected by executive instruments. That creates an administrative interface: duty-holders must follow both the Act and the relevant Orders or regulations that implement or interpret its definitions.

Limits and exclusions

• Sick leave does not include periods where the employee receives compensation payments under an Act (s 3(1) sick leave). That exclusion limits portability for periods covered by statutory compensation regimes.
• Periods already the subject of long service leave or pay in lieu are excluded from further reckoning to avoid double-dipping (s 4(3)(b)).
• Section 4(3)(a) refers readers to the categories of absences in s 5(g)-(m); those are specific exclusions for the purposes of what periods are to be taken into account.

Statutory silence on penalties

• The Act, as printed in this version, contains no express offence clauses, monetary penalties, civil enforcement provisions, or dedicated enforcement body. There are no penalty provisions attached to the substantive obligations in s 4, s 4A or s 5 within the Act text provided.

Implications of the absence

• Where a statute imposes obligations but contains no penalty, compliance and enforcement typically occur through existing employment law and industrial relations mechanisms. The Act links to other instruments (the Fair Work Act 2009, awards, Long Service Leave Act 2018, and Local Government Act 2020) and therefore the enforcement of obligations that intersect with those instruments may be pursued under the remedies and enforcement frameworks available under those instruments. The Act itself does not set out those remedies.
• Because the Act creates entitlements and duties that affect pay and leave, disputes about non-compliance will likely be dealt with in the industrial relations system, courts or tribunals competent to enforce employment entitlements under the Fair Work Act, relevant state long service leave legislation, or through private civil action where appropriate. The Act’s text does not specify jurisdictional or procedural channels; users must therefore map an enforcement pathway to other statutes and instruments.

Practical enforcement considerations for duty-holders

• Employers and advisers should assume that failure to comply with s 4 or s 4A will expose the employer to claims under the broader employment law framework rather than to a new penalty regime created by this Act. That means remedies could include wage recovery, orders for back payment of leave, or remedies under awards or enterprise agreements if those instruments are engaged.
• The absence of Act-specific penalties increases the importance of recordkeeping, internal audit, and the use of contracts and workplace policies to manage liabilities. Because the Governor in Council can make regulations under s 6, some specifics of compliance and potential regulatory sanctions may appear in subordinate instruments.

Role of awards and the Fair Work Act

• Section 3’s incorporation of the definitions of “award” and the Fair Work Commission, and s 3(1) sick leave’s explicit tie to awards and the National Employment Standards, mean that enforcement of sick leave and related claims may involve the industrial relations system under the Fair Work Act. The Act preserves award law by allowing awards to provide expressly contrary provisions in relation to portability of sick leave (s 4A(5)), which may affect the enforceable rule in a given employment relationship. Enforcement options provided by those instruments will remain the relevant pathways.

Regulation-making power as a possible enforcement channel

• Section 6 authorises regulations for “any matter or thing that by this Act is authorized or required or permitted to be prescribed or that is necessary to be prescribed for carrying this Act into effect.” The regulations, if and when made, could therefore provide compliance detail and potentially enforcement mechanisms. At present, the primary text contains no such regulations; practitioners must consult the consolidated regulations and Gazette Orders for the applicable regulatory framework.

Cross-references in the Act

• Fair Work Act 2009 and awards: the definitional material in s 3(1) imports the Fair Work Act 2009 language for “award” and defines “Fair Work Commission” to have the same meaning as under the Fair Work Act. The definition of “sick leave” is explicitly given by reference to leave under an award or the National Employment Standards (s 3(1)). That ties the operation of the Act to federal industrial law in two ways: by making the content of “sick leave” dependent on award/NES entitlements and by preserving the possibility of award-based exceptions for portability of sick leave (s 4A(5)).
• Long Service Leave Act 2018: s 4(1) directs that periods of employment must be taken into account where they are calculated under the Long Service Leave Act 2018. Section 4(2)(b) then gives the accrual analogue for those employees as six days per completed year. That means the Long Service Leave Act is an input into the computation required under this Act.
• Local Government Act 2020: s 4(1) and s 4(2)(a) make specific reference to regulations made for the purposes of s 50 of the Local Government Act 2020. For employees covered by those regulations, the Act sets an accrual analogue of nine days per completed year. Employers and lawyers must therefore map the employee to either local government regulations or the Long Service Leave Act 2018 to apply the correct accrual metric.

Potential areas of overlap and consequence

• Different accrual metrics produce different leave entitlements for employees performing equivalent work depending on which statutory overlay applies (s 4(2)). That layering may create administrative complexity, and potential disputes, about which regime governs a particular employee.
• The Act’s portability of sick leave interacts with award terms and the NES. Where an award contains an express contrary provision, the award will control (s 4A(5)). That preserves bargaining outcomes and award-based regulatory variations that might differ from the Act’s portability principle.
• The Act’s continuity rules interact with other statutory continuity constructs. For example, s 5(i) (standing down where no work is available) and s 5(g) (interruptions arising directly or indirectly from an industrial dispute) mirror concepts that appear in workplace relations frameworks more broadly, but the Act specifies how those absences operate for the special purpose of portability and accrual for pre-school workers.

Administrative instruments, declarations and their effects

• The Governor in Council’s power to declare relevant kindergartens and play centres (s 3(2)-(5)) and to prescribe matters by regulation (s 6) means that the practical boundary between who is covered by this Act and who is not can be altered by executive instruments. Those instruments will interact with local government instruments, state employment statutes and federal industrial instruments to determine the effective legal position.
• The regulatory and declaratory interface creates an implementation risk: a workplace may appear nominally to be a kindergarten or play centre but, unless the Governor in Council has declared it relevant (or unless the Order applies to the relevant period), the Act’s portability and continuity rules may not apply. Practitioners therefore must consult the Gazette and relevant regulations.

Avoidance and anti-avoidance interaction

• Section 5(e) deals with employer behaviour aimed at avoidance by deeming an interruption or ending of employment intended to avoid obligations as not breaking continuity. This is an anti-avoidance provision within the Act. It interacts with general common law and statutory doctrines on sham terminations and sham contracts that exist in employment law, but the Act’s text itself contains that specific statutory anti-avoidance rule for its purposes.

No express interaction with enforcement statutes

• The Act does not itself create enforcement or penalty provisions. Therefore, enforcement and remedies for breach will have to be sought through other statutes and instruments, notably through the industrial framework referenced by the Act (s 3(1) award; s 3(1) sick leave). That means the Act’s substantive entitlements exist within a web of enforceability that is supplied from outside the Act.

The Act has been amended multiple times. The endnotes include a detailed table of amendments. Chronology of key legislative changes, as contained in the Act’s endnotes:

• 13 November 1984: Assent and original enactment as the Pre-school Teachers and Assistants (Portability of Long Service Leave) Act 1984; commencement on 18 December 1985 (Endnotes 1).
• 1986: Pre-school Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986, inserted sick leave provisions and changed the short title (s 6(1) renamed the Act) and inserted s 4A (sick leave) and the definition of “sick leave” (Table of Amendments).
• 1989: Local Government (Consequential Provisions) Act 1989, No. 12/1989 amended s 4 and other sections with commencement staggered (s 4(1) and s 4(2)(a) changes related to local government regulations).
• 1992: Industrial Relations (Enterprise Bargaining) Act 1992, No. 47/1992, and Employee Relations Act 1992, No. 83/1992 made amendments that altered definitions and schedules, commencing in 1992-1993 (s 3(1) award insertions and other changes).
• 1994: Employee Relations (Amendment) Act 1994, No. 82/1994 made further substitutions and amendments to s 3(1).
• 1996: Commonwealth Powers (Industrial Relations) Act 1996, No. 59/1996 made consequential amendments following changes in federal-state industrial relations coverage, with effect from 1 January 1997 for certain items.
• 2009: Fair Work (Commonwealth Powers) Amendment Act 2009, No. 74/2009 updated the statutory language to reflect the Fair Work framework and inserted a definition relevant to Fair Work Australia/Commission material; commenced 1 January 2010 for relevant sections (s 18).
• 2018: Long Service Leave Act 2018, No. 12/2018 amended s 4 to reference the Long Service Leave Act 2018 (s 61(1)-(3)), altering accrual mechanics and commencement effective 1 November 2018 for those provisions.
• 2020: Local Government Act 2020, No. 9/2020 made consequential amendments with commencement tied to s 390(Sch. 1 item 78) on 6 April 2020; this updated the Local Government references in s 4(1) and s 4(2)(a).
• 2022: Regulatory Legislation Amendment (Reform) Act 2022, No. 13/2022 replaced and updated definitional material including the definition of Fair Work Commission and made other style and technical changes; s 75 commenced on 30 March 2022.

How to read these amendments in practice

• The Act as currently in force is a consolidated product reflecting those amendments. The key substantive changes over time were the addition of the sick leave portability provisions in 1986 (s 4A), the later alignment and cross-references with Commonwealth industrial law following federal reforms (1990s and 2009), and the re-mapping of long service computation to the Long Service Leave Act 2018 and Local Government Act 2020 in 2018 and 2020 respectively.
• Practitioners should consult the table of amendments in the endnotes for exact amendment items and commencement dates when tracing the historical operation of particular subsections. The endnotes provide the legislative instruments, assent dates, commencement dates and notes about which items relate to amendments of this Act.

The printed Act version and its endnotes do not include any reported litigation history, case annotations, or judicial decisions. The endnotes list amendments and explanatory details but do not cite any cases or tribunal decisions that interpret the Act.

What that means for practitioners

• There is no litigation history contained in the source material provided here. That absence in the text does not mean there are no reported decisions applying this Act in the courts or industrial tribunals; it simply reflects that this consolidated legislative text and its endnotes do not record cases.
• Lawyers and advisers should not rely on the Act alone to determine how courts or tribunals have treated issues such as:
  • whether a particular Governor in Council declaration constitutes a “relevant kindergarten” or “relevant play centre” in a disputed factual setting;
  • the degree of deference given to employers’ assessments of continuity;
  • the interplay between award terms and s 4A(5) where an award purports to provide contrary express provision; or
  • the application of s 5(e) to particular termination or re-engagement scenarios alleged to be avoidance of leave obligations.

Recommended next steps to discover litigation

• Search the Victorian courts and tribunal databases and national employment law reporting services for decisions that reference the Pre-school Teachers and Assistants (Leave) Act 1984.
• Check Fair Work Commission decisions and state industrial tribunals, as disputes about sick leave portability and long service leave accrual may appear in those forums because the Act cross-references awards and the Fair Work framework (s 3(1)).
• For matters involving local government employees, search judgments and determinations that deal with s 50 Local Government Act 2020 regulations and their interaction with s 4 of this Act.

Definitions rely on delegated instruments

• The Act uses “prescribed” and Governor in Council declarations to identify key elements of the coverage model (s 3 definitions; s 3(2)-(5)). That means the identity of some covered persons and the scope of “relevant” workplaces can only be confirmed by examining regulations and Gazette Orders. Do not assume coverage merely because a workplace looks like a kindergarten or play centre; check for the relevant Order or regulation.

Two different accrual measures

• Section 4(2) creates two accrual metrics: nine days per completed year for employees covered by regulations made under s 50 of the Local Government Act 2020; six days per completed year for employees to whom the Long Service Leave Act 2018 applies. The correct accrual depends on which statutory overlay governs the employee. Failure to identify the right overlay will produce incorrect entitlement calculations.

Sick leave portability is conditional on continuity, and awards can vary it

• Section 4A(2) requires employers to credit previously accrued sick leave only where the worker’s employment between the prior and current pre-school workplaces is continuous. Continuity is statutory and subject to the rules in s 5, but s 4A(5) preserves an award’s express contrary provision. Practitioners must therefore check the applicable award and enterprise agreement to see whether it expressly modifies the portability rule.

Continuity exceptions have different thresholds for teachers and assistants

• Section 5 treats pregnancy-related absences differently for pre-school teachers and pre-school assistants: up to 18 months for teachers (s 5(j)) and up to 12 months for assistants (s 5(k)). Illness/ injury thresholds also differ by coverage: for persons covered by Local Government regulations absences on account of illness or injury can be not more than 14 days in any year for continuity (s 5(b)), whereas s 5(c) provides a not more than 48 weeks threshold in any year more generally. These numeric thresholds are particular and must be applied accurately.

Anti-avoidance provision is narrow but operative

• Section 5(e) treats interruptions or endings done with the intention of avoiding leave obligations as not breaking continuity. That imposes a subjective factual enquiry about employer intention, which may be difficult to prove or disprove in practice. Employers should avoid restructuring or termination/re-hiring exercises intended to reduce leave liabilities because the Act anticipates such conduct and negates it for continuity purposes.

No penalties in the Act

• The Act contains no express penalties or enforcement procedures. That means remedies for non-compliance will be sought through the broader employment law system, including awards, the Fair Work framework, state long-service leave legislation, or through private claims. Do not expect a distinct penalty regime in this Act’s text.

Recordkeeping and proof burden

• The employer has to be prepared to demonstrate whether a worker’s employment was continuous, what sick leave was accrued and whether any prior periods were already subject to long service leave payments (s 4(3)(b); s 4A(3)). That requires careful personnel records, payroll data and documentation of approvals for absences. Absence of records will make defending non-compliance claims harder.

Retroactive declarations are authorised

• The Governor in Council can declare a kindergarten or play centre to have been a “relevant kindergarten” or “relevant play centre” and can apply the declaration to periods before the Order (s 3(5)). Retroactive declarations can create unexpected liabilities for employers who believed they were outside the regime for earlier periods. Always check Gazette Orders for retroactive language.

Interplay with compensation payments

• Sick leave by definition excludes leave for which compensation payments under an Act are payable (s 3(1) sick leave). Therefore, periods covered by workers’ compensation schemes may not count as sick leave for portability purposes.

Checklist for employers (practical, sourced steps)

1. Confirm whether your workplace has been declared a relevant kindergarten or play centre.
   • Check Government Gazette Orders under s 3(2)-(5) to establish whether the workplace is “relevant” and whether any Order applies retrospectively (s 3(5)).
2. Determine which accrual regime applies to each employee.
   • Identify whether employees are covered by regulations made for s 50 of the Local Government Act 2020 or fall under the Long Service Leave Act 2018. Apply the nine days/year accrual metric where the former applies (s 4(2)(a)), and six days/year where the latter applies (s 4(2)(b)).
3. Maintain complete records of employment periods, absences and approvals.
   • Keep employment histories that show continuous service dates, the nature and duration of absences, employer approvals for leave, dates of any dismissal and re-employment, and records of sick leave taken. These records are necessary to apply s 5’s continuity rules and to comply with s 4 and s 4A.
4. Apply continuity rules accurately.
   • Treat annual leave and long service leave as not breaking continuity (s 5(a)). Apply illness/injury thresholds: not more than 14 days in any year for persons covered by Local Government regulations (s 5(b)); not more than 48 weeks in any year for illness or injury in general (s 5(c)). Apply pregnancy-related thresholds: up to 18 months for pre-school teachers (s 5(j)), up to 12 months for pre-school assistants (s 5(k)).
5. Credit accrued sick leave on continuous transfers.
   • Where a worker transfers between pre-school workplaces and employment is continuous, credit the worker with the sick leave balance accrued at prior pre-school workplaces, except for sick leave already taken (s 4A(2)-(3)). This applies to past and future periods (s 4A(4)).
6. Check awards and enterprise agreements for express contrary provisions.
   • Examine the applicable award or enterprise agreement to determine whether there is an express contrary provision to s 4A(2) (s 4A(5)) or other relevant variations.
7. Avoid contrived terminations intended to avoid leave obligations.
   • Do not structure interruptions or endings of employment with the intention of avoiding long service or annual leave obligations. Section 5(e) treats such interruptions as continuous for the Act’s purposes.
8. Ensure payroll systems account for leave accruals correctly.
   • Configure payroll and HR systems to calculate long service leave accruals in accordance with s 4’s directions, ensuring that employees under different overlays get their correct accrual rates.
9. Prepare for claims and disputes through existing industrial mechanisms.
   • Because the Act contains no enforcement provisions, be ready to face claims in the industrial relations system or courts under the Fair Work Act, state long-service leave law or award/enterprise agreement processes. Maintain documentation that can prove compliance.
10. Monitor regulations and Gazette notices.
    • Because key elements depend on regulations and Governor in Council declarations (s 3; s 6), monitor the Government Gazette and the State’s consolidated regulations for any changes that expand or contract coverage or prescribe qualifications and persons.

Checklist for workers and their advisers

1. Establish whether the workplace was declared “relevant” at the relevant time.
   • Check Government Gazette Orders for s 3(2)-(5) declarations and their temporal scope.
2. Preserve evidence of past pre-school employment and sick leave balances.
   • Keep payslips, leave records and employer statements demonstrating accrued sick leave and periods of service to rely on s 4 and s 4A.
3. Understand the continuity tests.
   • Check whether any absences fall within s 5’s permitted categories to preserve continuity; note the specific thresholds for pregnancy and illness/injury (s 5).
4. Check applicable awards.
   • Examine whether the relevant award contains an express contrary provision to s 4A(2) (s 4A(5)). If so, the award wording will alter portability expectations.
5. If a dispute arises, identify the enforcement pathway.
   • Because this Act is silent on penalties, identify whether claims should be pursued through the Fair Work Commission, state tribunals, courts or via award-based dispute mechanisms.

Policy and operational points to incorporate into workplace documents

• Update contracts, staff handbooks and onboarding materials to reflect that prior pre-school service and sick leave balances may be credited where employment is continuous, and explain the evidence required from incoming employees.
• Add procedures for handling transfers between pre-school workplaces including mandatory documentation of previous sick leave balances, and internal protocols for assessing continuity under s 5.
• Train HR and payroll teams to apply the correct accrual metric depending on whether the employee is covered by local government regulations or the Long Service Leave Act 2018.
• Establish a dossier of Government Gazette Orders and regulations that affect coverage for quick reference during hiring and dispute resolution.

Final practical note

• Because the Act relies on other instruments for definitions, enforcement pathways and accrual mechanics (s 3; s 4), compliance is an exercise in statutory mapping: identify the applicable Governor in Council declarations, the relevant award or enterprise agreement, whether local government regulations apply, and how the Long Service Leave Act 2018 is engaged. Keep records that demonstrate continuity and prior leave balances. This Act changes the way service and sick leave portability are to be treated, but it does not create a separate, self-contained enforcement regime; successful compliance therefore depends on aligning payroll, HR processes and industrial instrument analysis.