10 years of continual work has gone by, some may feel the need for a break.

Following these feelings, a multitude of questions may be asked:

“What kind of break?” “Is it paid?” How long?” “What am I entitled to?”

These questions and more will be answered in the following outline on ‘Long Service Leave’ (LSL), including a breakdown by state and territory.

What is long service leave and what is its purpose?

This leave refers to pay granted at an interval of an employee’s working life, as an employee becomes entitled to such pay after a specified period of continuous service or employment with an employer. However, when employment terminates before an employee has worked the total number of years required for LSL entitlement, they are able to access part of their LSL. This payment is referred to as ‘pro-rata’’ LSL.

This entitlement ensures a reward for long service leave and provides long serving employees a short period of relief from employment and essentially enable them to restore their energies at intervals throughout their working life.

What governs long service leave?

As of 1 July 2009, majority of Australian workplaces were administered by a new system created by the Fair Work Act 2009, a system pertaining to the ‘National employment standards’ (NES). This system, which is an extension of the Long Service Leave Act 1955 (NSW), applies to all employees covered by the national workplace relations system, regardless of all the applicable industrial instrument or contract of employment.

What is the NES?

The NES is basically 10 minimum employment entitlements that have to be provided to all employees. The seventh entitlement pertains to long service leave, which outlines it as transitional entitlement for employees as outlined in an applicable pre-modernised award, pending the development of a uniform national long service leave standard.”

How will LSL operates under NES

Pre-Modernised award

Under the new system, an employee is entitled to long service leave in alignment with their pre-modernised award (pre 1 January 2010).

This alignment with the applicable award-derived LSL, refers to the terms of an award, that would have applied to the employee immediately before the commencement of the new system. If their pre-modernised award entitled them to LSL in their circumstance at that time, then they are entitled LSL.

However, an employee’s LSL entitlement derived from a pre-modernised award does not always apply. It does not apply where a collective agreement, an Australian Workplace Agreement (AWA) made after 26 March 2006, or an Individual Transitional Employment Agreement (ITEA) came into operation before the commencement of the NES, and applies to the employee or any of the following instruments that came into operation before the commencement of the NES:

  • Enterprise agreement – made after 1 July 2009 and approved by the Fair Work Commission;
  • Preserved state agreement – made before 26 March 2006;
  • Workplace determination – made by Fair work commission;
  • AWA – made before 26 March 2006; and
  • An old IR (Industrial relations) agreement – approved by the AIRC before 1996.

Nonetheless, Division 9 Subsection 113 (3) of the Fair Work Act states that if any of these instruments ceases to exist, then the employee will become entitled to LSL to the applicable pre-modernised award.

“Am I entitled to Long Service Leave?”

The requirements and terms of LSL for employees are outlined in LSL laws in each state or territory.

These laws set out:

  • How long an employee has to be working to have access to LSL (e.g after 10 years); and
  • The duration of the LSL given to the employee.

States and Territories

For a breakdown of individual States and Territories, access the following:

NSW

VIC

QLD

TAS

ACT

NT

WA

SA

Still unsure what you’re entitlements are? Contact a LawPath consultant on 1800LAWPATH to learn more about Long Service Leave.

James Miotto

James Miotto

James is a Paralegal, working in our content team, which aims to provide free legal guides to facilitate public access to legal resources. With a passion for commercial law, his research focuses on small businesses, and how they can navigate convoluted legal procedures.