Long Service Leave - NSW
Although the National Employment Standards (NES) provides for long service leave there is no national standard at present and the NES provisions basically operate to retain previous sources of entitlement to long service leave. For most workers (employees) in New South Wales this means the Long Service Leave Act 1955 (NSW). It is sometimes overlooked that under that Act non-permanent employees such as those employed as a seasonal worker or casual can have a long service leave entitlement.
Entitlements for Seasonal Workers
Workers performing seasonal work often have a degree of regularity in their terms of employment from year to year. In some instances a worker may perform work for an employer for ten years or more on a seasonal basis. It may be necessary to determine whether such a worker would have an entitlement to long service leave under the Long Service Leave Act 1955.
If there is a continuing obligation for an employer to provide work for a worker each year rather than a mere expectation of it, or if there is a continuing obligation for a worker to present themselves for work or to accept work if offered there may be an entitlement to long service leave.
In New South Wales long service leave is based on a workers continuous service with an employer and if there is an interruption caused by the employer (e.g. termination), previous service is recognised only if the interruption is less than two months. If the worker is terminated at the end of each season, this means the contract of employment was broken at that time. Where the worker is not re-engaged by the employer within a period greater than two months, it is unlikely that service is continuous. Subsequently the worker would not be entitled to long service leave in New South Wales.
An employer should also refer to the contract of employment to determine whether it can be implied by the terms of the contract that there is continuity of service under the seasonal work arrangement.
It should be noted that in other jurisdictions, Queensland and Victoria in particular, that the legislation dealing with long service leave contains specific entitlements for certain seasonal workers.
Entitlements for Casuals
Casuals engaged sufficiently regularly and there is no break between engagements of two months are potentially entitled to long service leave if their engagements span a sufficient period.
Towards a National Standard
Towards the end of 2011 the Workplace Relations Ministerial Council (WRMC) announced that it had requested High Level Officials Group (HLOG – high level federal and state bureaucrats) to examine the development of a national long service leave standard as the final part of the NES. A national long service leave standard would create the same entitlement to long service leave for employees in all jurisdictions.
Providing a national standard may prove difficult given the number of different provisions that currently exist as any standardisation may result in an improvement in long service leave conditions for some employees but not for others, depending on the jurisdiction.
The HLOG is yet to report its findings as to how best develop a national standard.