New South Wales state industrial laws

As of 1January 2010, all employers in the private sector in New South Wales are covered by federal industrial laws. For more information about federal industrial laws go to federal industrial laws.

However, state long service leave laws will continue to apply until the federal government enacts federal long service leave laws. It is expected that this will take place in 2010.

Long service leave

Long service leave is paid leave granted to employees to recognise a long period of service to the employer.

The NSW Long Service Leave Act 1955 applies to all award and non-award employers in NSW. If an award has more favourable long service leave entitlements, these entitlements apply in place of the act.

The Long Service Leave Act is a part of the Dairying Industry Employees (State) Award and its terms therefore apply to all employers bound by this award.

Casual employees and long service leave
	Employers who have traditionally been covered by the Pastoral Industry Award 1998 should note that the exemption for casual employees from the long service leave entitlement no longer applies in the Pastoral Award 2010. As of 1 January 2010 these employees will begin accruing long service leave.

Amount of long service leave

Under the NSW Long Service Leave Act 1955 all full-time, part-time and casual employees are entitled to long service leave of two months paid leave after 10 years' continuous service and one month for each additional five years' service with the same employer. A month is defined to mean 4 & 1/3rd weeks.

Continuous service

Continuous service means service with the employer which is not interrupted. The following absences from work do not interrupt service for the purposes of the long services leave laws:

absence of the worker under the terms of the worker’s employment;
absence of the worker because of illness or injury;
absences caused by the employer with the intention of avoiding long service leave obligations or other obligations under state industrial laws;
absences caused by an industrial dispute;
absences caused by the employer due to slackness of trade;
absences permitted by the employer; or
other absences where the worker returns to the service of, or is re-employed by, the employer within two months of the date on which the service was interrupted or determined.

Continuous service is not the same as years of service
	Some absences such as parental leave do not affect the calculation of continuous service but are not counted in the calculation for years of service.

Payment for long service leave

The rate of pay for long service leave for employees paid a fixed amount per pay period is either the ordinary rate of pay at the time the leave is taken or the employee’s average pay over the last five years whichever is the greater, excluding shift work payments, penalty rates and overtime payments.

If the rate of pay is not regular, the long service leave component is calculated by averaging the pay over the last 12 months OR the last five years whichever is the greater.

Weekly bonuses are included in the calculation, averaged in the same way over 12 months or five years.

The value of board and lodgings (keep) are also included in the calculation of the amount for long service leave.

Payment in lieu of long service leave is prohibited and only allowed if the leave is paid out on termination of employment.

If an employee dies, any long service leave which is due or would be payable had the employment been terminated must be paid to the employee’s personal representative.

Payment for long service leave on termination of employment

Long service leave is paid out on a pro rata basis after five years service if the employee terminates their employment due to illness, incapacity, domestic or other pressing necessity or upon termination by the employer provided the termination is not for serious and wilful misconduct.

Seek legal advice if dismissing an employee
	Seek legal advice before dismissing an employee for serious misconduct. See summary dismissal.

Employees with more than 10 years service whose employment is terminated are entitled to payment of the total amount of accrued long service leave calculated on a pro rata basis regardless of the reason for the termination.

Taking long service leave

Long service leave must be given as soon as practicable after it falls due having regard to the needs of the employer’s business.

Long service leave must be taken in one continuous period unless the employee and the employer agree to one of the following options:

where the amount of the leave is two months, in two separate periods;
where the amount of the leave exceeds two months and does not exceed 19½ weeks, it must be taken in two or three separate periods;
where the amount of the leave exceeds 19½ weeks, in two, three or four separate periods.

Long service leave of not less than a month can be taken in advance if the employer and the employee agree.

If a public holiday falls during the long service leave the period of leave is increased by one day.

Formalities for long service leave

Notice

Employers must give employees at least one month’s notice when they require them to take long service leave.

Leave records

Leave records must contain details of the accrual of long service leave which show the employee’s entitlement to that leave from time to time as well as records of all leave which has been taken. Employers must keep these records of long service leave for a period of six years from the last entry.

Residential tenancies laws

The NSW residential tenancies laws may apply to accommodation on farms where the accommodation is not a part of the wider lease of the farming property. These laws lay down notice periods for ending the tenancy, whether bonds can be required and how much can be charged as well as rules regarding repairs and inspection and agreements with specific terms. Breaches of these laws attract fines.

Whilst residential tenancy laws can protect both the tenant and the landlord, the notice periods for ending the tenancy can be problematic when accommodation has been part of a remuneration package and an employee leaves as a result of their employment being terminated either with notice but particularly when dismissed summarily for misconduct. Notice periods will continue to apply (usually 60 days) and the only avenue the farmer will have to reduce this is to make an application to one of the tenancy tribunals on the grounds of hardship.

Residential tenancy laws do not usually apply where the tenancy is not ‘for value’ which means that no rent is paid for the accommodation. However, farmers should be aware that making accommodation a part of a formal workplace agreement where the accommodation is used as a part of the Net Detriment Test may have the effect of making the tenancy ‘for value’ and the residential tenancy laws may then apply.

For more information on NSW residential tenancies laws go to the NSW Department of Commerce website.