The Long Service Leave Act 1955
- Applies to all employees in NSW – full time, part time and casual,
- Entitlement – 2 months (8 2/3 weeks) after 10 years,
- 1 month (4 1/3 weeks) after each additional 5 years,
- Pro rata entitlement after 5 years service, under some circumstances,*
- Must be taken as leave or paid on termination of employment.
*Pro-rata entitlement if employee:
- Resigns as a result of illness, incapacity, domestic or other pressing necessity,
- Is dismissed for any reason except serious and wilful misconduct, or
- Dies.
Definition of workers:
- Any person employed whether on salary or wages, piecework, outwork, salesman, canvasser, collector, commercial traveller, insurance agent,
- Person paid wholly or partly by commission.
Continuous service not broken by:
- Change in duties or position,
- Transfer between companies within same group where employed by holding company or any one or more subsidiaries of that company and transfers to another company in group.
Interruptions that do not break continuity:
- Employer approved absences from work,
- Parental leave – but break does not count as service,
- If caused by the employer and the employee returns to employment within 2 months – period of interruption does not count as service,
- No break in continuity if business or part transferred as a going concern.
| Type of Leave |
Break in Continuity |
Counts as Service |
| Paid sick leave | NO | YES |
| Sick leave without pay | NO | YES |
| Paid annual leave | NO | YES |
| Employee requested leave without pay | NO | NO |
| Company directed leave without pay | NO | NO |
| Long service leave | NO | YES |
| Parental leave | NO | NO |
| Workers compensation | NO | YES |
Payment of Leave
Rate of Payment – the higher rate between:
- Ordinary time rate of pay in pay period prior to commencing leave, or
- Average weekly rate of pay earned during the previous 5 years.
- Shift allowances, penalty rates, overtime payments, fares, travelling time and other like payments not included
Bonuses and commissions:
- Averaged over previous 12 months (or 5 years if 5 year average pay rate is used),
- Is added to weekly rate to calculate leave payment,
- If currently paid in excess of $144,000 per annum, bonuses are not included (this amount is indexed).
Payment during leave may be either:
- Paid in full on commencement of leave,
- Paid at ordinary rate of pay at normal pay intervals, or
- In any other way agreed between the employer and employee.
If public holiday occurs during leave – additional day added if a normal working day for that employee.
Commencement of leave:
- The employer may direct leave to be taken by giving at least one (1) month’s notice,
- May be postponed by agreement – may agree leave will be paid at current rate when leave is taken in the future,
- Leave may also be taken in advance on agreement between the employer and the employee – must be not less than one (1) month.
Taking the period of leave:
- In one continuous period, or
If employer and employee agree:
- 2 separate periods – if leave owing is 2 months,
- 2 or 3 periods – if leave owing is between 2 months and 19 1/2 weeks,
- 2, 3 or 4 periods – if leave exceeds 19 1/2 weeks.