Numerous entitlements and rights which employees have arise only after a certain period of ‘continuous service’. For example, employees become entitled to protection under Unfair Dismissal legislation after 6 or 12 months of continuous service with an employer, or entitled to long service leave after 7 or 10 years of continuous service (depending on State legislation). Recently, the case of Infosys Technologies Limited v State of Victoria  VSCA 219 (Infosys), provided clarity as to what counts as continuous service, where periods of employees’ service was performed outside of Australia.
Infosys concerned two engineers whom had been employed by Infosys Limited, an Indian company, each for longer than 7 years. Each engineer commenced employment with Infosys in India, however, were later placed throughout the globe, where at the time their employment terminated, they were within Australia. The engineers, while they had over 7 years of service with Infosys Limited in total, had only been within Australia for 2 years and 2 months and 2 years and 7 months respectively. The question for the court therefore became, did the engineers’ service outside of Australia count toward the calculation of ‘continuous service’ for the purpose of long service leave legislation?
Infosys notably analysed, and found plainly wrong, the decision in Cummins South Pacific Pty Ltd v Keenan  FCAFC 204 (Keenan). It had only recently been held in Keenan that an employee who had spent some 40% of his employment working overseas for his employer, was to have that 40% included in the calculation of his long service leave entitlement. That case looked at whether the employment, assessed globally, had a substantial connection to Victoria. It was held where the majority of the employment, and most recent years of such, had been performed in Victoria and for related companies of the employer overseas, then all of the employment was to be counted as continuous service for the purposes of calculating long service leave.
The Court in Infosys critiqued this approach as treating the employment as one indivisible whole. The Court took the approach of assessing whether each placement/secondment had a connection to Australia/Victoria. In doing this, the Court looked to statutory interpretation and what was required for a connection to exist, holding that employment need be performed ‘in and of’ Victoria in order for it to be considered continuous employment. Resulting, the engineers’ employment performed outside of Australia did not count toward calculating a period of continuous service, and as such, they were not entitled to a payment of long service leave.
Infosys provides an alternative view to Keenan as to how employment performed overseas will be viewed by the Courts. This decision provides that periods of employment, if performed overseas for related entities, may be severable from an employee’s service performed within Australia.
In assessing employee entitlements, it is always recommended that you seek appropriate advice. Should you require assistance with employee entitlements, or any employment matter, do not hesitate to contact Saines Legal.
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The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal).