What is an excluded period?

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Introduction

See Fair Work Act 2009 s.22

An excluded period does not break an employee’s continuous service with their employer. However, it does not count towards the length of the employee's continuous service. Periods of casual employment may affect the length of an employee’s continuous service for the purpose of an application for an unfair dismissal remedy.

The following are periods that are excluded from the definition of 'service' and therefore for the purpose of calculating the minimum employment period:

any period of unauthorised absence, and
certain periods of unpaid leave or unpaid authorised absence (there are exceptions for community service leave, certain stand downs and prescribed leave or absences).

The following are examples of unauthorised absence:

periods of industrial action engaged in by employees, and
other absence from work contrary to the direction of the employer.

The following are examples of unpaid authorised absence:

unpaid parental leave, and
unpaid personal/carer's leave.

The above periods do not break service however they are not counted in the calculation of the minimum period of employment.

What is included in the minimum period of employment?

The following are examples of unpaid authorised absence for which the period of absence is counted as service:

community service leave (eg jury service), and
certain stand-downs.

The Fair Work Act includes provisions that the 'regulations may prescribe different periods' however the Fair Work Regulations do not currently do so.

Related information

Periods of service as a casual employee

Case examples

Excluded periods

Unpaid personal leave

Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors [2012] FWA 3817 (Jones C, 22 May 2012).

The employee had been employed for exactly 6 months. However it was found that a part of 1 days’ sick leave was without pay. With that period of leave deducted the employee had not met the minimum period of employment.

Unpaid personal leave – employee on Transport Accident Commission payments

Webster v Toni and Guy Port Melbourne Pty Ltd T/A Toni and Guy Port Melbourne [2010] FWA 4540 (Roe C, 18 June 2010).

The employee had been on authorised leave during his employment due to a motor accident injury. The employee did not receive any payment from his employer during this period but was in receipt of payments from the Transport Accident Commission.

It was held that this period was an excluded period because it was unpaid leave.

Income protection payments – paid by superannuation fund

L.M. v Standard & Poor's (Australia) Pty Ltd [2012] FWA 9634 (Roe C, 12 November 2012).

The employee was absent from work for about 5 weeks because of illness, and was paid income protection insurance payments by a private insurer through his superannuation fund. It was held that because the employer was under no legal obligation to provide income protection insurance, the employee was on unpaid leave. This was distinguished from workers’ compensation payments which arise from a legal obligation on the employer.

NOT excluded periods

Workers' compensation

Workpac Pty Ltd v Bambach [2012] FWAFB 3206 (Ross J, Sams DP, Booth C, 31 May 2012).

The employee was in receipt of workers’ compensation and accident pay during a period of leave. It was found that the payments, even though they were being made by insurers, were made on behalf of the employer pursuant to a legal obligation imposed directly on the employer. Therefore the absence was not an unpaid authorised absence and was not an excluded period.

Updated time

Last updated

16 March 2021

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