Is Long Service Leave Different In NSW and QLD?

Long service leave entitlements in New South Wales are regulated through the Long Services Leave Act 1955 (NSW) (The Act).

Who is entitled to long service leave?

Full time, part time and casual workers are entitled to long service leave in NSW, provided they have at least 10 years of continuous service for your business.

What is long service leave entitlement?

Workers are entitled to 2 months (8.67 weeks) of long service leave after 10 years of continuous service. For each subsequent period of 5 years continuous service, an employee is entitled to 1 month (4.33 weeks) of long service leave. The Act defines a “month” as 4.33

weeks.

What constitutes continuous service?

According to The Act, service of employees will be deemed continuous notwithstanding the service has been broken for any reason or interruption that isn’t:

o   Caused by the absence of an employee under the terms of their employment

o   Caused by the absence of the employee due to illness or injury

Other absences will not break the continuity of employment, however do not contribute to the period of service. These include:

o   Absence caused by the employer with the intention of avoiding any employer obligations regarding sick leave imposed on the employer by a state industrial agreement

o   Absence arising from an industrial relations dispute

o   Absence caused by slackness of trade

Can employees get a job while on long service leave?

The key legislation dealing with issues of long service leave and entitlements in NSW is the Long Services Act 1995 (NSW). However, this legislation does not specifically pertain to employees who may have a second job while on long service leave. Therefore, it is important for employees to pay close attention to their contractual terms and the type of secondary job they may wish to undertake. Depending on their places of work, there may be certain legal issues that may result from possible conflicts of interest. These will be discussed below.

Questions to ask in determining the legality of a second job

Before commencing a second job whilst on long service leave, employees should consider:

1. Will I be working for a direct competitor? This may lead to possible conflicts of interest if you work for both companies.
2. Have you signed any non-disclosure or confidentiality agreements with your current employer? If so, will working for this secondary company be in breach of these agreements?
3. Will I be putting my other job at risk for health and safety reasons? This can include a variety of factors, depending on the type of work you are conducting. For example, fatigue may be relevant for employers, who provide long service leave to reward employees and let them rest.
4. Do provisions in your current employment contract prohibit you from working a secondary job?

Can an employer stop you from working a second job while on long service leave?

Unless an employer has included a clause in the employment contract expressly stating that employees either need consent or are not permitted to work for another employer during their employment, employees are generally able to work a second job in their spare time. However, employees must also be aware of confidentiality or non-disclosure agreements, which if signed may lead to conflict of interest.

What types of secondary jobs may be ok?

It is important if employees are going to work a secondary job, that they  avoid any possible conflicts of interest or confidentiality concerns. Places of employment should generally be in a completely different industry.  Despite this, confidentiality agreements may provide broad coverage for employers over multiple industries. It is important to consult with a lawyer for advice.

Summary

Long service leave is integral in rewarding employees for continued service to their employer. For some, this can afford them time to obtain secondary income.  However, ambiguities in legislation can lead to confusion for employees. To avoid potential legal issues, employers should ensure their employees agree to sign non-disclosure or confidentiality agreements, or include clauses prohibiting employees to work secondary jobs while on long service leave. 

Long service leave QLD

If you have an employee that has been working at your business for a long time, they may be entitled to claim long service leave. Long service entitles employees to take an extended period of time off work whilst still receiving ordinary pay. For businesses unsure, employment law in Australia is generally governed by the Fair Work Act 2009 (Cth). However, the requirements to claim long service leave differ from state to state.

What is long service leave?

Long service leave is given to an employee who works consistently for your business, and has accrued leave after multiple years of continuous service. Business owners must also note this is different to annual leave, which is often shorter than long service leave. Long service leave can be claimed by full-time, part-time and casual employees.

How long is long service leave in QLD?

To qualify for long service leave in Queensland, employees must have worked in a period of continuous service. Employees that have commenced employment on or after 3 June 2001 are entitled to 8.6667 weeks long service leave once they have completed 10 years of continuous service. For every 5 years above this 10 year mark, another 4.33 weeks is applied in addition to the 10 year total.

What is continuous service?

According to The Fair Work Act, service of employees will be deemed continuous notwithstanding the service has been broken for any reason or interruption that isn’t:

•   Caused by the absence of an employee under the terms of their employment
•   Caused by the absence of the employee due to illness or injury

Other absences will not break the continuity of employment, however do not contribute to the period of service. These include:

•   Absence caused by the employer with the intention of avoiding any employer obligations regarding sick leave imposed on the employer by a state industrial agreement
•   Absence arising from an industrial relations dispute
•   Absence caused by slackness of trade

Conclusion

Employers should be aware of the issues surrounding long service leave. Long service leave in Queensland can be claimed by employees that have worked at your business for 10 years. This period of continuous service allows employees to redeem 8.6667 weeks. Long service leave can be challenging at times. Employers should seek legal advice to avoid any potential legal problems and ensure compliance. Legal Kitz can assist you with any matters relating to employment. Book now for a FREE 30 minute consultation.