Each State and Territory has legislation providing for long service leave, although the amount of leave and the qualification for leave, either the taking of it or the payment in lieu on termination, differs between the jurisdictions.

The National Employment Standards (NES) have been drafted to preserve existing long service leave entitlements derived from various State jurisdictions, Awards and Agreements.

Some of the relevant entitlements under State and Territory legislation are summarised below.

New South Wales

Relevant Legislation: Long Service Leave Act 1955.

Entitlement to take long service leave: 8.67 weeks entitlement after 10 years continuous service.

Pro-rata entitlements on termination: After 5 years’ continuous service – only if terminated by employer for reasons excluding serious misconduct; or if resigning due to injury, ill health or domestic pressing necessity.

Additional Notes:

  • Covers casual and permanent employees;
  • Continuous service excludes unpaid leave;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months or 5 years (whichever is greater).

Victoria

Relevant Legislation: Long Service Leave Act 2018.

Entitlement to take long service leave: After completing a minimum of 7 years continuous employment with one employer an employee is entitled to an amount of long service leave equal to 1/60th of the period of employment (approx. 6.1 weeks after 7 years).

Pro-rata entitlements on termination: Entitlements will only be paid if employment ends after 7 years of continuous employment. The employee is entitled to be paid out long service leave at the same rate as above regardless of the reason for termination.

Additional Notes:

  • Covers casual, seasonal and permanent employees;
  • Long service leave can be taken in periods of not less than one day at a time;
  • Continuous employment will be broken where an employee’s employment ends (but there is an exception where the employee is subsequently re-employed within 12 weeks of that date, and in this instance continuous employment is not broken);
  • Continuous employment will also generally be broken where a casual employee takes paid or unpaid parental leave exceeding 2 years;
  • Long service leave accrues during any period of paid absence;
  • Long service leave accrues during unpaid leave of up to 52 weeks, but only accrues during unpaid leave exceeding 52 weeks in certain circumstances;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months or 5 years or the entire period of employment (whichever is greater).

Queensland

Relevant Legislation: Industrial Relations Act 2016.

Entitlement to take long service leave: 8.67 weeks entitlement after 10 years continuous service.

Pro-rata entitlements on termination: After 7 years’ continuous service – only if terminated by employer for reasons excluding serious misconduct; or if resigning due to injury, ill health or domestic pressing necessity.

Additional Notes:

  • Cashing out of leave is allowed;
  • Covers casual and permanent employees;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months only.

Western Australia

Relevant Legislation: Long Service Leave 1958.

Entitlement to take long service leave: 8.67 weeks entitlement after 10 years continuous service.

Pro-rata entitlements on termination: After 7 years’ continuous service – termination on any grounds excluding serious misconduct.

Additional Notes:

  • Cashing out of leave is only allowed for non-Award employees;
  • Covers casual and permanent employees;
  • Entitlement paid at the employee’s usual hours per week.

South Australia

Relevant Legislation: Long Service Leave Act 1987.

Entitlement to take long service leave: 13 weeks entitlement after 10 years continuous service.

Pro-rata entitlements on termination: After 7 years’ continuous service – termination on any grounds excluding serious misconduct. Pro-rata entitlement is paid at 1.3 weeks for each completed year of service.

Additional Notes:

  • Cashing out of leave is allowed;
  • Covers casual and permanent employees;
  • Entitlement paid at average weekly hours over the last 3 years multiplied by the current hourly wage.

Tasmania

Relevant Legislation: Long Service Leave Act 1976.

Entitlement to take long service leave: 8.67 weeks entitlement after 10 years continuous service. Thereafter, an additional 4.34 weeks entitlement after each subsequent 5 years of continuous service.

Pro-rata entitlements on termination: After 7 years’ continuous service – only if terminated by employer for reasons excluding serious misconduct; or if resigning due to injury, ill health or domestic pressing necessity.

Additional Notes:

  • Cashing out of leave is allowed;
  • Covers casual and permanent employees who work at least 12 hours in each consecutive 4 week period;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months only.

Northern Territory

Relevant Legislation: Long Service Leave Act 1981.

Entitlement to take long service leave: 13 weeks entitlement after 10 years continuous service.

Pro-rata entitlements on termination: After 7 years’ continuous service – only if terminated by employer for reasons excluding serious misconduct; or if resigning due to injury, ill health or domestic pressing necessity. After 10 years’ continuous service – termination on any grounds, however in cases of serious misconduct, entitlement paid on each completed 10 years only.

Additional Notes:

  • Covers casual and permanent employees;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months only.

Australian Capital Territory

Relevant Legislation: Long Service Leave Act 1976.

Entitlement to take long service leave: After 7 years continuous service – 1/5th of a month of leave for each year of service. Entitlement can be taken annually.

Pro-rata entitlements on termination: After 5 years’ continuous service – only if terminated by employer for reasons excluding serious misconduct; or if resigning due to injury, ill health or domestic pressing necessity.

Additional Notes:

  • Covers casual and permanent employees;
  • Entitlement paid at ordinary weekly wage averaged over the last 12 months only, however if employee has converted from full-time to part-time or casual, then entitlement is paid at average hours worked per week over the last 5 years.

Cross Border Provisions

Should an employee work across multiple States and Territories throughout their continuous service with one employer, the entitlement to long service leave is derived from the statute operating in the State or Territory that the employee is working within at that particular point in time that they wish to use their entitlement to long service leave.

About Employment Innovations

Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.

Disclaimer

The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

Click Here To Get Access to Free Fair Work Advice & Help