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Demystifying Long Service Leave – what you should know

Demystifying Long Service Leave – what you should know 1024 768 MJT Law - Brisbane Employment Lawyers

Most of us know that long service leave (“LSL”) exists but very few of us really understand the rules that surround LSL.  LSL is a period of leave with pay much like your annual leave that is granted to employees in recognition of their long service as an employee.  Almost everyone is covered by long service leave.

The Law Stuff

In Queensland LSL is regulated by the Industrial Relations Act 1999 and covers the provisions for LSL for casual, permanent part/full time workers and, subject to certain conditions seasonal workers.

The legislation in this area can be confusing so let’s break it down a bit.

Entitlement

If you are an employee and have worked for 10 years or more of continuous service, then you will be entitled to8.6667 weeks of paid LSL.  After the first 10 years the next threshold is 5 years when you are entitled to 4.3333 weeks paid LSL.  After the first 15 years LSL accumulates much like your annual leave with no threshold time frames.

What is continuous service? The easiest definition is given by the Qld Government who states that:

Continuous service refers to paid working time and paid leave.  Employment is the total period engaged and can include unpaid leave.  The LSL entitlement is based on continuous service with the same employer including instances where the Act states that an employee’s continuity of service is both taken to be with the same employer or not broken in certain circumstances”

Although the above definition is not totally clear it does broadly mean that if you have been with the same employer for the period required then you should be entitled to LSL.

What if I haven’t worked at the same place for 10 years

The other question that I get quite a lot is “what happens if I want to take my long service leave earlier than 10 years?” the easy answer is unless there is a very good reason you will not be entitled to LSL if you leave before the 10 years.  There may be provision in your employment contact that states that you can pro-rata your LSL after a certain amount of time but that would be an agreement between you and your employer.

Generally

Employees who have completed between 7-10 years of service will be entitled to pro-rata LSL only if:

  • the contract is terminated due to the employee’s death;
  • the employee terminates their service due to illness or incapacity or because of a pressing necessity like domestic necessity;
  • the employer dismisses the employee for any other reason than conduct, capacity or performance; or
  • the employer unfairly dismisses the employee.

NOTE: if you have more than 10 years of service the payment of pro-rata LSL on termination is not subject to the criteria above.

What if I am a casual worker

All continuous service of a casual worker will be taken into account when calculating LSL.  This only applies if the continuous service is not broken by 3-months.

Casual long service leave is calculated in the following way:

hours worked / 52 x 8.6667 / 10 = hours entitled x hourly rate

hours worked/52 = a

a x 8.6667 = b

b /10 = number of LSL hours owed

hours owed x hourly rate

e.g. 100 / 52 X 8.6667 / 10 = 1.666 x hourly rate

hours worked = 100 :::> then 100/52 = 1.923

1.923 X 8.6667 = 16.666

16.666 / 10 = 1.666 (hours of LSL)

1.666 x hourly rate

What if my company gets bought out

The Act states that any accumulated LSL entitlements will transfer from one employer to another if the business changes hands.  This is also the case if you are terminated at the time the business changes hands and then within 3 months the new owner then re employees you.

Can my employer make me take Long Service Leave

This is another question that I get asked when talking about LSL.  First it is important to go to your work contract, then to your Award or Enterprise Agreement.  Once you have established that there are not provisions for how LSL is to be taken it is time to go to the legislation.

An employer must make an agreement with the worker about the time, the way and the conditions of how LSL is to be taken.  This means that you must come to an agreement between you and your employer as to when you are going to take LSL and for how long.

If you and your employer can’t agree then it is the employer who will decide when you will take LSL.  There are conditions though: the employer must give at least 3 months’ written notice of the date which you are to take LSL if they direct you to take 4 weeks or more.  Of course this is subject to any Award or Enterprise Agreement.

Sources from QLD Government

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