Legislation Changes to My Leave

EXCERPT:

Legislation Changes – Construction Industry Portable Paid Loing Service Leave Act 1985 (the Act).

The above Act has been amended by the Western Australian Parliament in August 2025 to provide for:

• Coverage of construction workers who work while on vessels.

• Allow early access to entitlements for workers due to total and permanent incapacity, terminal illness or deceased workers.

• Accrual of days of service for workers that are stood down or on workers compensation..

1.    Construction Work While on Vessels

The amendment addresses circumstances where workers performing construction work while on vessels have been excluded from accessing portable long service leave under the Act.

The new provisions apply to construction work carried out while on any vessel on water in an offshore area as defined in section 3(3) the Industrial Relations Act 1979 (WA), and vessels situated in inland waterways, such as rivers, lakes, estuaries, and similar bodies of water.

The amendments do not provide for eligibility under the Act for:

• Maritime workers (seafarers).

• Workers engaged to operate a vessel or in managing cargo or passengers.

• Workers performing shipbuilding or maintenance to self-propelled vessels themselves.

• Workers performing work while on vessels that are on land.

• Workers on vessels outside Western Australian waters that may travel internationally.

• Foreign workers on vessels, that have no substantial connection to Western Australia.

However maintenance, repairs and construction work to fixtures fitted to selt-propelled vessels used for undertaking construction activity (e.g. cranes, cable laying equipment etc.) and used in non-navigational purposes (e.g. resource extraction and processing plant), is eligible.

There is no change for non-self-propelled vessels (e.g. barges or vessels affixed to the ground), which have always been eligible under the Act.

This amendment will commence from the date of proclamation, which is yet to be determined. A proposed proclamation date in the coming months is intended to provide employers affected by the amendment adequate time to prepare for the changes, complete the required registration processes, and comply with quarterly employee service reporting obligations.

The amendment will apply retrospectively for workers affected by the 2016 WAIRC decision (Ben Thompson v The Construction Industry Long Service Leave Payments Board (2016) WAIRC 00054) where days of service were removed from a worker’s MyLeave record.  The amendment provides that the service of a worker on a ship or vessel prior to the amendment does not count toward a break in service that may have caused a worker to be deregistered. The amendment has the effect of re-establishing a worker’s continuous service to the construction industry but does not allow for retrospective credit of days of service, or an obligation on employers to pay contributions.

2.   Early Access to entitlements for total and permanent incapacity, terminal illness, or death

The amendment enables proportional payment of accrued long service leave benefits prior to a worker reaching the minimum service period of seven years, in the following circumstances:

• Total and Permanent Incapacity (TPI)

  Where a worker is permanently unable to work in the construction industry.

• Terminal Illness (TI)

  Where a worker has been diagnosed with an illness that is likely to result in death within 12 months from the date of application for payment.

• Deceased Workers

Access to proportional payment is subject to a qualifying period of at least 55 days of service being accrued. In addition, medical evidence is required to support total and permanent incapacity and terminal illness claims, and in the case of a deceased worker evidence of the eligibility of a personal representative to make a claim.

This provision, which allows early access to long service leave entitlements for workers who are totally and permanently incapacitated, terminally ill, or deceased, commenced from 29 August 2025 (the day after Royal Assent). It will not apply retrospectively, as it introduces enhanced benefits that were not previously available.

3.    Workers Stood Down or on Workers Compensation

The amendment provides that days of service will accrue toward a worker’s long service leave entitlement during periods when the worker is ‘stood down’ or ‘on workers compensation’.

The amendment relating to workers being stood down will apply retrospectively from 1 April 2020, ensuring that workers stood down from that date onward will have their days of service counted toward long service leave entitlements. This aligns with the period of widespread stand downs during the COVID-19 pandemic.

The amendment relating to workers compensation will also apply retrospectively, correcting a historical inconsistency in the legislation. It aligns service accrual with employer contribution obligations, ensuring fair and consistent treatment of affected workers.

Guidance material is available on the MyLeave website at www.myleave.wa.gov.au.