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Category: Entitlements

  • Largest ever Court Imposed Fine for Breaching 457 Visa Sponsorship Obligations

    Five weeks after ordering Darwin-based Choong Enterprises to pay the largest-ever court-imposed fine for breaching 457 visa sponsorship obligations, the Federal Court has directed the Company to backpay 7 of the Filipino workers involved, totalling more than $100,000.

    Justice Mansfield found in April 2015 that Choong Enterprises Pty Ltd (which operates a number of fast food restaurants and cafés) had underpaid the workers who were 457 visa holders, only $12 an hour between 2009 and 2012.

    The Company failed to pay entitlements such as loadings, sick leave and superannuation contributions and failed to comply with record-keeping obligations, produced false pay records and had recovered the costs of migration agent fees from 4 of the visa holders.

    Justice Mansfield in April ordered the Company to pay $175,400 in pecuniary penalties and ordered its sole director and shareholder, Ronald Choong, to pay $800, finding he had aided and abetted the Company’s actions.

    However, his Honour refused to impose a penalty on the director’s wife (who was not a company officer), finding that while she was aware “more broadly” of the Company’s failure to comply with its sponsorship obligations, she “was not doing so in a considered and consistent way“.

    The government subsequently sought $125,956 in total reimbursements for 7 of the affected employees (all from the Phillippines) under the Migration Regulations 1994.

    The judge rejected the Company’s application for periodic payments, noting that while Choong Enterprises’ trading assets had been reduced to operating a fish and chip shop in Nightcliff, it had sold most of its business to D & C Gourmet Pty Ltd, whose director shared an address with Ronald Choong.  He noted the “stark” difference in restitution payable under the Migration Act to the exploited employees, depending on whether it was calculated using the base rate prescribed for the purposes of section 140(1) of that Act, or the relevant award.

    His Honour said, “Without going into the detail of each of the 7 sponsored employees involved, as the PAYG tax adjustment in each case is different, the total claimed by way of reimbursement of regulation 2.79 fixes the entitlement, the total reimbursement sought by the Minister is $125,956 compared to $52,480 if the Award is the appropriate starting point.”

    After Justice Mansfield made the initial ruling in April, Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash, in a statement said it was the department’s first Federal Court civil penalty application and the largest civil penalty any court had imposed for a breach of sponsor obligations.

    Senator Cash said, “The stiff penalty this company has received should send a warning to other sponsors: if you fail to meet your requirements, my Department may impose administrative sanctions, issue an infringement notice, execute an enforceable undertaking, or apply to the federal court for a civil penalty order” .

    [Minister for Immigration and Border Protection v Choong Enterprises Pty Ltd (No 2) [2015] FCA 553 (4June 2015)]

    Taskforce Cadena

    Senator Cash in a statement issued Friday 5 June 2015, welcomed the Federal Court result and said to expect further investigations with the commencement of Taskforce Cadena from 1 July.

    Senator Cash said, “The Coalition Government understands that at times businesses need to access foreign labour for positions that cannot be filled locally, however we are committed to ensuring integrity is maintained across our migration programmes through rigorous enforcement of the rule of law“.

    The task force (headed by the Department of Immigration and Border Protection and the Fair Work Ombudsman) will work with the Australian Federal Police, Australian Securities and Investment Commission, the Australian Tax Office, and various state and territory agencies to investigate instances of worker exploitation and visa fraud.

    Senator Cash said, “The Department of Immigration and Border Protection and the Fair Work Ombudsman are active in ongoing compliance campaigns to ensure that temporary visa holders are being paid in accordance with Australian pay and conditions. This taskforce will greatly complement those existing efforts.”

  • Changes to Penalty Rates – more than 100 hearing days

    The employer bid to change penalty rates is shaping as a massive case in the Fair Work Commission that will run until late next year, with almost 200 witnesses to be called over Changes Penalty Rates

    The Fair Work Commission’s President, Justice Iain Ross, outlined the scale of the case, and set out the timetable for hearings by a specially-constituted full bench under its four-yearly review of modern awards.

    Justice Ross said that common evidence on all awards in all industry sectors would be heard first, starting on about 20 July 2015.

    Hearings on penalty rates in 4 hospitality awards –

    • Amusement, Events and Recreation Award,
    • Hospitality Industry (General) Award,
    • Registered and Licensed Clubs Award, and
    • Restaurant Industry Award

    will start in late August.

    The tribunal will then, in late September, turn to 5 retail awards –

    • Dry Cleaning and Laundry Industry Award,
    • Fast Food Industry Award,
    • General Retail Industry Award,
    • Hair and Beauty Industry Award, and
    • Pharmacy Industry Award.

    Justice Ross said that common evidence would be relevant to claims in all awards and industry sectors, and will generally be provided by an expert and might include government reports, statistics or social commentary.

    He said award or industry-specific evidence will be presented during the hospitality and retail group stages,”Generally, no provision will be made for written evidence in reply and the parties are to rely on oral argument to test any evidence put.  However, an expert witness may be permitted to submit short written responses to any claims that subsequently challenge their evidence.”

    Employers seeking to amend the penalty rates in the hospitality and retail awards have to file joint draft variation determinations by 13 February 2015.

  • Recent decisions of Federal Court Circuit re underpayment claims from employees – liability of the directors

    The following two cases are recent decisions of the Federal Court Circuit in relation to underpayment claims from employees.  You may find these interesting, especially with respect to the liability of the directors.

    Scotto -v– Scala Bros Pty Ltd & Anor [2014] FCCA 2374 (17 October 2014)

    The Federal Circuit Court has found that a sole director of a delicatessen and cafe accessorily liable in an underpayment case spanning a period of more than 30 years and over 4 eras of industrial law.

    The assistant, Mr. Scotto, employed by Scala Bros at its combined delicatessen and café at Sydney’s Flemington Markets from 1981 until 2010, successfully argued that, throughout this period, he was not paid the required minimum wages, allowances or overtime and that the company failed to make superannuation contributions on his behalf or provide him with payslips.

    He also argued before Justice Cameron that Scala Bros failed to pay his accrued annual and long service leave when his employment ended.

    His Honour said that while some of the employee’s claims could not be pursued due to time limitations within some legislation (limiting to some claims to 6 years), he was able to determine that Scala Bros had breached the Fair Work Act, Workplace Relations Act and the Industrial Relations Act 1991 (NSW) (however, Mr. Scotto did not press any claims under the NSW Industrial Relations Act).

    His Honour also accepted the employee’s argument that Scala Bros’ sole director knowingly contravened the federal statutes after becoming the delicatessen’s only director on the death of her father (who was also the step grandfather of the employee) in June 2009.

    Justice Cameron said, she could not be found to have been accessorily liable for the period when her father ran the company, as she then had “no particular responsibility for, or duties in, Scala Bros, other than to sign company documents as requested“.

    Judge Cameron will rule on compensation, penalties and costs at a later date.

    Fair Work Ombudsman -v– Pty Ltd & Anor [2014] FCCA 2222 (24 October 2014)

    The Federal Circuit Court has also found a company director accessorily liable after he failed to act on a Court Order that his company repay an underpaid employee on the basis that “he personally disagreed, and still does, with the determinations” of the Court.

    Justice Hartnett granted the Fair Work Ombudsman’s application for a declaration that the director (who is also secretary and shareholder) breached the Fair Work Act by failing to ensure that an employee was repaid $4,222.05 by the middle of 2013 and subsequently.

    Her Honour, who will decide on penalties and costs at a later date, said the director was directly responsible for the failure to pay the employee his correct entitlements and for the company’s subsequent failure to abide by the resulting compliance notice.

  • Redundancy and Other Acceptable Alternative Employment – Is Redundancy Payable?

    A recent case before the Fair Work Commission dealt with the issue of redundancy and suitable alternative employment.

    In Szanto v ISS Facility Services Pty Ltd the Commission clarified the application of sections 119 and 120 of the Fair Work Act 2009 (the Act) in deciding whether a redundancy payment must be made.

    The Act

    Section 119 of the Act provides that an employee is entitled to be paid redundancy pay if the employee’s employment is terminated either:

    • at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone (except where this is due to the ordinary and customary turnover of labour); or

    • because of the insolvency or bankruptcy of the employer.

    Any genuine redundancy, pursuant to the Act, must be paid in accordance with the employee’s contract, employer redundancy policy, the NES or applicable industrial award /agreement entitlement.

    Under section 120 of the Act an employer is entitled to vary the sum of a redundancy payment if the employee has been made redundant and the employer has obtained other acceptable employment for the employee, or cannot pay the amount.

    Section 120(2) allows the employer to apply to the Commission for a determination of a reduction in severance amount in circumstances where suitable alternative employment has been found for the employee.

    Szanto v ISS Facility Services Pty Ltd

    Mr Szanto worked for over 11 years as a Security Officer at ISS Facility Services (ISS) and more recently in the position as concierge of Telstra House.  Due to the loss of a contract, ISS had to reassign Mr Szanto’s to another role at a new site which involved a mix of security guard duties and shift work.

    Mr Szanto refused the offer of alternative employment insisting that his role had been made redundant and that the new role was not suitable alternative employment due to his personal situation and the fact there was a change in his working hours. Mr Szanto demanded ISS make payment of his redundancy.

    In contrast, ISS maintained that the new role was suitable alternative employment and refused to pay Mr Szanto’s redundancy.  ISS terminated Mr Szanto after he failed to attend his rostered shift at the new site and Mr Szanto applied to the Commission to redress the non-payment of redundancy.

    At the Commission, Mr Szanto submitted that ISS owed him a redundancy payment as his position at Telstra House had been made redundant and that the offer of alternative employment was unsatisfactory.

    ISS submitted that Mr Szanto was not made redundant as his role was not linked to a specific site or location.

    Decision

    In deciding whether Mr Szanto was entitled to a redundancy payment the Commission considered the following:

    • was his role made redundant?; and
    • was the offer of a new position suitable alternative employment?

    The Commission concluded that as Mr Szanto was employed as a general security guard and had been placed as the Telstra House concierge, when ISS lost the contract for Telstra House and no longer required the role to be performed by anyone, Mr Szanto’s position was made redundant and he was entitled to redundancy pay.

    However, when considering the question of whether ISS had offered him suitable alternative employment, Commissioner Cambridge stated that it is simply not a matter of choice for the employee to either accept or reject alternative employment, but an objective test of comparison between the terms and conditions that applied to the previous job that became redundant and those applicable to the new alternative employment.

    In comparing Mr Szanto’s job at Telstra House with that of the alternative employment offered by ISS, the Commission found that although there were significant differences in hours of work and tasks to be performed the role clearly fell within the scope of the definition of security guards duties.  The updated and different terms of the new site were comprehended as being within the scope of the particular employment circumstances and the employer had offered suitable alternative employment to Mr Szanto.  Therefore, ISS was under no obligation to make payment of any redundancy payment because the new role fell within the scope of his duties as a security guard.

    In Sum

    Employers and employees should take note of the Szanto case as it supports the notion that just because an employer (or an employee for that matter) believes a similar role is available in another location to an employee who’s position has been made redundant, it will not guarantee that the Commission view it as suitable alternative employment.  However, so long as employers offer a substantially similar role, they may apply to the Commission to have the total sum of the severance payment they must pay assessed.

    Clearly where the position offered is in no way suitable alternative employment then full redundancy will be required to be paid to the employee.

  • Penalty Rate form part of the Modern Award Review

    Penalty Rate form part of the Modern Award Review

    The Fair Work Commission full bench is conducting the four-year review of modern awards, and shall consider any possible changes to penalty rates towards the end of the process.

    The tribunal, in a statement this week, said that awards where penalty rates might be a “contested issue” have been allocated to the fourth group to be reviewed.

    Tribunal President Iain Ross, Vice President Adam Hatcher, Senior Deputy Presidents Jennifer Acton and Jonathan Hamberger and Commissioner Michelle Bissett advised was necessary so to “allow time for the interested parties to gather evidence to support their claims and to ensure that any phasing in of transitional rates or loadings will be complete“.

    Despite some parties pushing for penalty rates to be included in the common issues stage now underway, President Ross ruled in March that penalty rates did not meet the definition of a common issue.

    Justice Ross announced that the 6 common issues to be dealt with separately from the individual award reviews were annual leave; award flexibility/facilitative provisions; casual employment; part-time employment; public holidays; and transitional/sun-setting provisions relating to accident pay, redundancy and district allowances.

    The tribunal expanded the list to include apprentice conditions following ACTU submissions in May.

    The full bench also announced this week that 2 full benches will be convened to look at 6 group one awards that contain substantial, contested issues :

    • the Meat Industry Award 2010;
    • Security Services Award 2010;
    • Stevedoring Industry Award 2010;
    • Textile, Clothing, Footwear and Associated Industries Award 2010;
    • Timber Industry Award 2010; and
    • Vehicle Manufacturing, Repair, Services and Retail Award 2010.

    Common issues

    After a conciliation conference before Senior Deputy President Ian Watson this week, the full bench will look at annual leave common issues on August 20 and 21.

    In June, employer organisations called for clauses to be inserted in modern awards relating to cashing out leave; excessive accruals; shutdowns; advanced access and payment of annual leave, while the ACTU asked the Commission to insert a clause clarifying the inclusion in termination payments of what employees would have received had they taken the leave they were owed.

    While further directions will be issued soon on transitional/sun-setting provision common issues relating to accident pay, redundancy and district allowances, the Commission has called for submissions by August 29 from parties concerned that some transitional issues due to cease on December 31 need to be dealt with more urgently.

    An initial conference will be held on September 29 to discuss part-time employment and casual employment common issues, with hearings in the first half of 2015.

    The bench said that public holidays and award flexibility/facilitative provisions common issues will also commence in early 2015, with any changes arising from the Fair Work Amendment Bill 2014 to be addressed then.

     

  • Superannuation Guarantee rate increases to 9.5%,

    From 1 July 2014, the Superannuation Guarantee rate increases to 9.5%, from the 9.25% that currently applies.

    Superannuation Guarantee (SG) is the official term for compulsory superannuation contributions made by employers on behalf of their employees.  An employer, regardless of whether they are a small or large business, must contribute the equivalent of 9.5% of an employee’s salary for the 2014/15 year, and 9.25% until 30 June 2014.

    In the 2014 Federal Budget, the planned increase in Superannuation Guarantee contributions of 9.25% to 12% overt the next 5 years has been amended by the Liberal government, stretching the timeline for implementation to 8 years.

    Effective 1 July 2014, the Superannuation Guarantee will increase to 9.5%, and will eventually rise to 12% by July 2022.

    The amended increases are to be as follows:

    Financial year SGC rate
    Current year 2012 – 2013 9.00%
    2013 – 2014 9.25%
    2014 – 2015 9.50%
    2015 – 2016 9.50%
    2016 – 2017 9.50%
    2017 – 2018 9.50%
    2018 – 2019 10.00%
    2019 – 2020 10.50%
    2020 – 2021 11.00%
    2021 – 2022 11.50%
    2022 – 2023 12.00%

     

     

  • Federal Court Decision on Labour Hire Sham Contracting Arrangement – Avoiding Employer Obligations

    Farm Workers
    Farm Workers not contractors

    The Federal Court has found that shifting seasonal workers to a new employer after they had worked 40 hours a week constituted a “sham” contracting arrangement with the purpose of avoiding paying overtime.

    Her Honour, Justice Collier held that a Queensland fruit farm owned by a family trust was in fact the employer of the workers for the entire period, rather than the two (2) labour hire companies that appeared on the workers’ payslips after they had completed their ordinary hours.

    Eastern Colour Pty Ltd ran the family trust, with the parents of the farming family its sole directors and shareholders.

    The sole director and shareholder of each of the two (2) additional companies; SB Employments and NB Employments, were the sons.

    Eastern Colour Pty Ltd gave evidence that it was not economically viable to pay overtime, and that after seeking advice, it set up “internal” labour hire arrangements.

    Justice Collier accepted evidence from Eastern Colour Pty Ltd that there were low profit margins in the industry, that the major supermarkets set the price for the farm’s produce, and that many of those performing seasonal work wanted as many hours as possible.  However, her Honour stated, “these facts do not detract from the legal position under the Act, which this Court is required to apply”.

    The Office of the Fair Work Ombudsman (’the FWO’) launched the prosecution on behalf of four (4) former casual workers after it investigated their complaints from 2008.  The FWO found that Eastern Colour Pty Ltd was the “true employer.”

    Justice Collier agreed with this finding and noted:

    • The workers considered that it was the sons’ parents who were “the bosses,” and who could hire and fire, and “this did actually appear to be a correct perception“;
    • The workers believed they were working for Eastern Colour Pty Ltd.  Those working on the farm wore shirts bearing the name Eastern Colour, while the only applicable WHS guidelines were in the name of Eastern Colour;
    • The workers performed the work on a farm owned by Eastern Colour Pty Ltd by packing fruit in boxes labelled as “produced by Eastern Colour“;
    • The workers had limited knowledge of SB Employments or NB Employments other than as entities whose name appeared on their pay slips;
    • There was no practical difference in the workers’ work environment or practice after an employee had worked 40 hours;
    • The workers were not aware that they worked up to 40 hours for one company and any additional hours for another, despite the parents’ evidence that they informed them of the arrangement;
    • The sons had no involvement in employing staff;
    • The “clear fact that SB and NB existed only to provide services to [Eastern Colour]“; and
    • Apart from time sheets and pay slips, the “absence of any contract of employment between either SB or NB, and the relevant employees“.

    Justice Collier noted that Eastern Colour Pty Ltd repeatedly gave evidence that no farms paid overtime rates to their harvesting and packing staff.

    Justice Collier further noted that while “this may have been the practice, it is very clear that [the company] was aware of the legal obligation on employers to pay overtime once an employee had worked 40 hours. Indeed, it was for this very reason that SB and NB were created – namely to be entities who could be the nominal employers of employees on the farm to obviate the legal requirements of Eastern Colour as employer to pay overtime for more than 40 hours work… That the directors of SB and NB were the children of [the parents] simply supports the inference that SB and NB functioned in the context of the family business.”

    Her Honour found that it was clear that all three (3) companies “aided and abetted the contravention, and/or were knowingly concerned in the contravention“, which was underpaying the workers (under the former Workplace Relations Act 1996).

    Justice Collier asked the parties to make submissions on the FWO’s call for penalties.

    [Fair Work Ombudsman -v– Eastern Colour Pty Ltd (No 2) [2014] FCA 55 (11 February 2014)]

    Employer’s Lesson:

    It is apparent that creating a labour hire arrangement to avoid paying employee entitlements is no protection from a prosecution of ‘sham’ contracting, despite what the industry standard or practice may be.

    I hear companies say to me, ‘but I know that other companies are doing this’…. That maybe so, however, as Justice Collier has stated clearly in this decision:

    “these facts do not detract from the legal position under the Act, which this Court is required to apply”.

    As always, please do not hesitate to contact me to discuss.

  • Superannuation Changes 1 July 2013

    Annual increases to superannuation guarantee contribution rates commence from 1 July 2013.

    superannuation imageEffective 1 July 2013 the rate rises to 9.25%, and shall continue to rise until 1 July 2019, when the rate will have risen to 12%.  Please see the table below, for your reference:

    Financial year SGC rate
    Current year 2012 – 2013 9.00%
    2013 – 2014 9.25%
    2014 – 2015 9.50%
    2015 – 2016 10.00%
    2016 – 2017 10.50%
    2017 – 2018 11.00%
    2018 – 2019 11.50%
    2019 – 2020 12.00%

     Employer Legal Obligations:  

    Employers must make the minimum compulsory contributions required by the Superannuation Guarantee (Administration) Act 1992, in order to avoid the superannuation guarantee charge, regardless of what is in their employees’ employment contracts.

    However, employers should not ignore the terms and conditions in their employees’ employment contracts.

    •              If terms in the employment contracts say, “employees are paid a salary plus the minimum superannuation guarantee contributions required to avoid the superannuation guarantee charge”:

    No amendments will be required to those clauses to reflect the increases in rates.

    In this case, employers simply need to ensure that superannuation contributions are made at the correct rates.  This will result in an increase in the employees’ overall remuneration, although the base salary will remain the same.

    •              If terms in the employment contracts say, “employees are paid salary plus 9% superannuation”:

    In this case, employers must make contributions in line with the increases.  This will result in an increase in the employees’ overall remuneration, although the base salary will remain the same.

     

    Employers may seek to vary existing employment contracts so they no longer specify an incorrect superannuation rate.  The variation to the contract should require contributions at the “minimum level” required in order to avoid the superannuation guarantee charge.  This variation may be implemented with the employees’ agreement, may be at pay review time.

    •              If terms in the employment contract say, “employees are paid a fixed, Total Remuneration Package (“TRP”), inclusive of superannuation:”

    In this case, the employee’s cash take home pay may be lawfully reduced to absorb the increase to the superannuation guarantee contribution.  However, this approach is likely to result in questions or complaints from employees and potentially the involvement of the Office of the Fair Work Ombudsman.

    Employers may wish to get on the front foot and have a communication strategy ready to manage that inevitable discussion.

    Further, if the over-award/agreement buffer built into an employee’s TRP has not been reviewed in some time, it would be a good idea to review that buffer before the reduction in take home pay is implemented to ensure that it does not result in payments that are below minimum wage requirements.

    If employers decide to maintain an employee’s cash take home pay despite the fact that the TRP allows the increase to be absorbed, we strongly recommend varying employees’ contracts to reflect the new pay structure.  Remember that increases to the rates will be a regular feature for the next seven (7) financial years, so any variation should take into account the ongoing changes.  Given that the employee will benefit from this approach, obtaining their agreement to a variation should not prove problematic.

    Superannuation Guarantee Charge:

    Employers must meet the higher contribution rates from the September quarter 2013.

    Employers that fail to meet contribution obligations must lodge a Superannuation Guarantee Charge Statement quarterly with the Australian Taxation Office (“ATO”), and must pay the superannuation guarantee charge.

    The charge consists of the shortfall in superannuation (which the ATO is then responsible for re-distributing to the relevant employees’ funds), interest on the shortfall (10% per annum), and an administration fee ($20 per employee, per quarter).  The charge is not tax deductible.

    Depending on the circumstances, further penalties may also be imposed at the ATO’s discretion.  Importantly for company directors, personal liability now attaches to them as individuals for penalties equal to any unpaid amount.

    Other Considerations

    If not already accounted for, the increases will need to be factored into your business’ budgets going forward.

    Employers should also keep them in mind during annual pay reviews, and when negotiating for any new enterprise agreements.

    Lastly, make sure that your payroll system or payroll provider is ready to handle the increase on 1 July.

    If you have any questions, please contact Brooke Pendlebury, at brooke@pendlebury.com.au.

  • When is Redundancy Pay NOT Payable?

    Redundancy pay is generally notpayable under the National Employment Standards (‘the NES’) to any of the following:

    Redundancy
    • an employee whose period of continuous service with the employer is less than 12 months;
    • an employee of a small business employer (a small business employer, for the purpose of determining redundancy pay under the NES, is an employer who employs fewer than 15 employees – this is based on a simple head count of employees immediately before the relevant person was terminated, or at the time when the person was given notice of termination (whichever happened first));
    • an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;
    • an employee whose employment is terminated because of serious misconduct;
    • a casual employee;
    • an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;
    • an apprentice;
    • an employee to whom a industry-specific redundancy scheme in a modern award applies;
    • an employee to whom a redundancy scheme in an enterprise agreement applies if both:
      • the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation
      • the employee is covered by the industry-specific redundancy scheme in the modern award.

    A modern award, or enterprise agreement which incorporates modern award redundancy provisions, may provide that an employee will not get redundancy pay if their employer finds other suitable/alternative employment.

    The NES also allow Fair Work Australia to reduce an employee’s redundancy pay on application by an employer, if the employer either:

    • finds other acceptable employment for the employee; or
    • is unable to pay the full redundancy pay entitlement.

  • Service that Counts for Long Service Leave Purposes

    Long Service Leave

    Generally, all absences count towards the accrual of long service leave in NSW.

    However, certain interruptions are not to be taken into account when calculating the period of long service.

    These are:

    • Parental leave, i.e. maternity leave, paternity leave, adoption leave
    • Absence by agreement of the employer, i.e. leave without pay
    • The period during which the employee was not employed, where the employee is terminated by the employer and re-employed within 2 months
    • The period during which the employee was not employed, where the employee was terminated by the employer due to slackness of trade, and subsequently re-employed at a later date
    • Any absence arising directly or indirectly from an industrial dispute.

    The Long Service Leave Act 1955 (NSW) applies to all award/agreement covered employees and also award/agreement-free employees in NSW, i.e. weekly, part-time and casual employees.

    The Act does not apply to employees covered by a Federal long service leave award; a Federal agreement dealing with (or excluding) long service leave; employees entitled under any award/agreement to long service leave more favourable than the Act; employees entitled to long service leave under any other Act such as employees covered by the Building & Construction Industry Long Service Payments Act, who elect to receive benefits available under that Act instead of the Long Service Leave Act 1955 (NSW), and the Long Service Leave (Metalliferous Mining Industry) Act.

    From 1 January 2010 this situation was preserved by the National Employment Standards, however there are special rules where agreements exclude long service leave or apply a single standard across more than one state and/or territory.