Long Service Leave Act 1955 No 38

An Act to make provisions entitling workers to long service leave; to amend the Industrial Arbitration Act 1940 ; and for purposes connected therewith.

This Act may be cited as the Long Service Leave Act 1955 .

This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act , and so as not to exceed the legislative power of the State to the intent that where any provision of this Act, or the application thereof to any person or circumstances is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected.

(1) In this Act, unless the context otherwise indicates or requires—

(a) where the worker is, on the prescribed date, remunerated wholly in relation to an ordinary time rate of pay fixed by the terms of the worker’s employment—

(ii) the average weekly amount of the ordinary remuneration which was earned by the worker as a worker during that part of the period of 5 years ending on the prescribed date during which the worker was so remunerated,

(b) where the worker is, on the prescribed date, remunerated otherwise than wholly in relation to an ordinary time rate of pay so fixed—the amount of the average weekly wage which was earned by the worker as a worker (being the average of the amounts received by the worker each week under those terms after excluding any amount payable to the worker in respect of shift work, overtime or other penalty rates) during the period actually worked by the worker during—

(ii) the period of 5 years,

(c) the average weekly amount of bonuses received by the worker as a worker employed by the person who is the worker’s employer on the prescribed date during—

(i) where paragraph (a) (i) or (b) (i) applies for the purpose of calculating the worker’s ordinary pay, the period of 12 months, or

(ii) where paragraph (a) (ii) or (b) (ii) applies for that purpose, the period of 5 years,

(d) where the worker was, immediately before the prescribed date, provided with board or lodging by the person who is the worker’s employer on the prescribed date—the cash value of that board or lodging.

Worker means person employed, whether on salary or wages or piecework rates, or as a member of a buttygang, and the fact that a person is working under a contract for labour only, or substantially for labour only, or as lessee of any tools or other implements of production, or as an outworker, or is working as a salesman, canvasser, collector, commercial traveller, insurance agent, or in any other capacity in which the person is paid wholly or partly by commission shall not in itself prevent such person being held to be a worker but does not include a person who is a worker within the meaning of the Long Service Leave (Metalliferous Mining Industry) Act 1963 .

(2) For the purposes of—

(a) the definition of ordinary pay in subsection (1) and of subsection (2A), prescribed date , in relation to a worker—

(i) means, except as provided in subparagraph (ii), the date immediately preceding the date on which that worker enters, or is deemed to have entered upon long service leave or the date of that worker’s death, as the case may require, or

(ii) where the worker has, in relation to any period of long service leave, entered into an agreement authorised by subsection (2B), means, in relation to that period of long service leave, the date of that agreement,

(b) paragraph (a) of that definition, ordinary remuneration , in relation to a worker, means the remuneration for that worker’s normal weekly number of hours of work calculated at the time rate of pay fixed by the terms of that worker’s employment for his or her work under the terms of that worker’s employment reduced by any amount payable to that worker in respect of shift work, overtime or other penalty rates or, where 2 or more time rates of pay are so fixed, the amount of remuneration for that worker’s normal weekly number of hours of work calculated at the higher or highest of those rates and so reduced,

(c) paragraph (c) of that definition, bonus , in relation to a worker, means any amount received by that worker under the terms of that worker’s employment under any bonus, incentive or other similar scheme, not being an amount taken into consideration in determining the amount of the average weekly wage of that worker referred to in paragraph (b) of that definition, and

(d) paragraph (d) of that definition, the cash value of any board or lodging provided for a worker shall be deemed to be its cash value as fixed by or under the terms of the worker’s employment or, if it is not so fixed, shall be computed at the rate of $15, or such greater sum as may be prescribed instead, a week for board and $5, or such greater sum as may be prescribed instead, a week for lodging.

(2A) For the purpose of subsection (2) (b), where no normal weekly number of hours of work is fixed for a worker under the terms of that worker’s employment, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by that worker during the period of 12 months, or 5 years, as the case may require, ending on the prescribed date.

(2B) Where long service leave has accrued to a worker and the employer of that worker and that worker have agreed that the taking of the long service leave due to that worker or any part thereof shall be postponed that employer and that worker may agree that, for the purposes of the definition of ordinary pay in subsection (1), the prescribed date shall, in relation to that long service leave or part, as the case may be, be the date the agreement was entered into.

(2C) Despite anything to the contrary in this section, the ordinary pay of a worker is not to include or be increased by the amounts paid under any bonus, incentive or other similar scheme if the annual amount of the worker’s ordinary pay (excluding any amounts so paid) exceeds the amount prescribed by the regulations for the purposes of this subsection.

(3) A person who is engaged in plying for hire or in the delivery of goods or in the transportation of passengers with any vehicle or vessel the use of which is obtained by that person under a contract of bailment (other than a hire purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings or otherwise shall, where the work in which such person is so engaged is work for which, by an award or industrial agreement, a price or rate has been fixed for persons performing such work, be deemed, for the purposes of this Act, to be a worker employed by the person from whom the use of the vehicle or vessel is so obtained, and such lastmentioned person shall, for the purposes of this Act, be deemed to be the employer of such worker unless such persons or either of them establishes to the satisfaction of the tribunal in which proceedings under this Act are instituted that the contract of bailment was a bona fide contract and was not entered into for the purpose of avoiding the operation of this Act or of an award or industrial agreement.

(4) Where by any provision of the Industrial Relations Act 1996 a person is deemed for the purposes of that Act to be an employee and any other person is deemed for such purposes to be the employer of that employee, then for the purposes of this Act the person so deemed to be an employee shall be deemed to be a worker and the person so deemed to be the employer shall be deemed to be the employer of that worker.

s 3: Am 1963 No 13, sec 2 (1) (a); 1963 No 48, sec 16; 1969 No 37, Second Sch; 1977 No 54, Sch 1 (1); 1983 No 99, Sch 2 (2); 1985 No 54, Sch 2 (1); 1990 No 113, Sch 2; 1991 No 34, Sch 3; 1996 No 121, Sch 4.36 [1] [2]; 2000 No 61, Sch 2.

(1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.

(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall—

(B) in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month, and

(C) on the termination of the worker’s services after the completion of 15 years service, in respect of the number of years service with the employer completed since the worker last became entitled to an amount of long service leave, a proportionate amount on the basis of 2 months for 10 years service, and

(ii) in the case of a worker who has completed at least 10 years service but less than 15 years with an employer and whose services with the employer are terminated or cease for any reason, be a proportionate amount on the basis of 3 months for 15 years service, and

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.

(a1) (Repealed)

(a2) In the case of a worker, whose service with an employer began before the commencement of the Long Service Leave (Amendment) Act 1963 and whose service would entitle the worker to long service leave under this section, the amount of long service leave to which such worker shall be entitled shall be the sum of the following amounts—

(i) an amount calculated on the basis of three months for twenty years service in respect of the period of service of the worker before such commencement, and

(ii) an amount calculated on the basis of 2 months for 10 years service in respect of the period of service of the worker as from such commencement.

(a3) For the purposes of subsections (2), (3) and (3A), month means 4 and one-third weeks.

(i) A worker entitled under this section to long service leave in respect of a period of service with an employer shall not, except in pursuance of an agreement between the worker and the employer entitling the worker to leave in the nature of long service leave in addition to long service leave under this Act, be entitled otherwise than under the provisions of this Act to leave in the nature of long service leave in respect of that period of service with that employer.

(ii) Where before or after the commencement of this Act—

(A) a worker has otherwise than in pursuance of this section been granted by an employer and taken any leave in the nature of long service leave in respect of a period of service with the employer, or

(B) payment of the monetary value of leave in the nature of long service leave has been made to the worker or other person entitled thereto,

the leave so granted and taken or the leave in respect of which such payment has been made shall, except where such leave has been taken or payment therefor has been made pursuant to an agreement referred to in subparagraph (i), be deducted from any amount of long service leave to which such worker is entitled pursuant to this section in respect of that period of service with that employer.

(3) Subject to subsection (5), where a worker has become entitled to long service leave in respect of the service of the worker with an employer, the employer shall give to the worker and the worker shall take the leave—

(a) as soon as is practicable having regard to the needs of the employer’s establishment, or, where the employer and the worker agree that the taking of the leave be postponed until an agreed date, as from that date,

(b) in one continuous period or, if the worker and the employer so agree, in the following separate periods and not otherwise—

(ii) where the amount of the leave exceeds 2 months and does not exceed nineteen and one-half weeks, in two or three separate periods,

(iii) where the amount of the leave exceeds nineteen and one-half weeks, in two, three or four separate periods—

Provided that where any leave has been given to and taken by the worker pursuant to subsection (3A), this subsection shall apply to and in respect of so much only of the leave to which the worker has become entitled as has not been so given and taken.

(3AA) Despite subsection (3)(b), an employer and worker may agree to the worker taking long service leave in 2 or more separate periods of not less than 1 day.

(3A) If the employer and the worker so agree, a period of long service leave of not less than 1 day may be given by the employer, and taken by the worker, wholly or partly in advance before the worker has become entitled to any long service leave or to the amount so agreed to be given and taken. No such agreement shall, for the purposes of subsection (2) (A) (i) (B) or (C), be deemed to confer on the worker an entitlement to long service leave.

(3B) For the purposes of subsections (3AA) and (3A), in relation to a worker for whom no normal weekly number of hours is fixed under the terms of the worker’s employment, the reference to 1 day is taken to be a reference to the number of hours calculated as follows—

(a) the average weekly number of hours worked by the worker during the period of 12 months ending on the date immediately preceding the date on which the worker enters long service leave, or

(b) the average weekly number of hours worked by the worker during the period of 5 years ending on the date immediately preceding the date on which the worker enters long service leave, and

B is the average number of days worked weekly by the worker during the period used for calculating A .

(4) The long service leave provided by this section is exclusive of annual holidays occurring during the taking of any period of long service leave.

(a) any day appointed by the Governor as a public holiday to be observed generally throughout New South Wales occurs during any period of long service leave taken by a worker under this section, and

(b) the worker is entitled to payment in respect of that day under any Act, award or industrial agreement or under the contract of employment of the worker,

the period of the long service leave shall be increased by one day in respect of that public holiday.

(a) Where the services of a worker are terminated otherwise than by the worker’s death and any long service leave—

(ii) accrues to the worker upon such termination and has not been taken,

the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker’s ordinary pay for the leave less any amount already paid to the worker in respect of that leave.

(b) Where a worker dies and any long service leave—

(ii) accrued upon termination of the services of the worker by reason of the worker’s death and has not been taken,

the employer shall upon request by the worker’s personal representative pay to the worker’s personal representative in full the ordinary pay that would have been payable to the worker in respect of long service leave less any amount already paid to the worker in respect of that leave.

(c) On the termination of the services of a worker who had taken any leave pursuant to subsection (3A) the worker’s employer may, subject to this paragraph and subsection (13), deduct from any remuneration payable on such termination in respect of the worker’s services—

(i) if the worker had not become entitled to any long service leave in the course of or upon the termination of the worker’s services—the amount paid to the worker as ordinary pay for the leave so taken, or

(ii) if the worker had become so entitled—the amount paid to the worker as ordinary pay for the excess, if any, over the worker’s total entitlement of the period or total of the periods of long service leave on ordinary pay given pursuant to this Act by that employer to and taken by the worker.

(5AA) Notwithstanding subsection (5) (c), the deduction to be made pursuant to subsection (5) (c) shall not exceed the amount of ordinary pay that would have been payable for the period of leave or excess leave, as the case may be, had it been taken on the termination of the services of the worker.

(5A) An employer shall not give to a person who is a registered worker under the Building and Construction Industry Long Service Payments Act 1986 any long service leave or pay to any such person any payment in respect of long service leave unless that person applies to the employer for the leave or payment.

(5B) An employer must not give to a person who is a registered worker under the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 any long service leave or pay to any such person any payment in respect of long service leave unless that person applies to the employer for the leave or payment.

(6) (Repealed)

(7) Subject to subsection (5), where a worker enters upon a period of long service leave, the employer of the worker shall pay to the worker the ordinary pay to be paid to the worker in respect of the period of leave in one of the following ways—

(b) at the same time as the worker’s ordinary pay would have been paid if the worker had remained on duty, in which case payment shall, if the worker in writing so requires, be made by cheque posted to an address specified by the worker, or

(c) in any other way agreed between the employer and the worker,

(8) Except as provided in subsection (5), payment shall not be made by an employer to a worker in lieu of any long service leave or part thereof to which the worker is entitled under this Act nor shall any such payment be accepted by the worker.

(9) Any amount payable under this section—

(a) to the personal representative of a worker, shall be recoverable by the personal representative of the worker, or

(b) to a worker who dies before being paid such amount, shall be recoverable by the personal representative of the worker as payment due to the worker,

(10) The employer shall give to each worker at least one month’s notice of the date from which it is proposed that the worker’s long service leave shall be given and taken.

(10A) However, an employer may, under subsection (10), give a worker less than 1 month’s notice if the worker agrees to the lesser period of notice.

(11) For the purposes of this section—

(a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment,

(a1) the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof—

(ii) caused by the absence of the worker on account of illness or injury,

(iii) made by the employer with the intention of avoiding any obligation imposed on the employer by this Act or by any obligation in relation to sick leave imposed on the employer by a State industrial instrument,

(iv) arising directly or indirectly from an industrial dispute,

(v) made by the employer by reason of slackness of trade,

(vi) arising from the absence of the worker for any cause by leave of the employer, or

(vii) caused by the employer for any reason other than those referred to in subparagraphs (iii)–(v) where the worker returns to the service of, or is re-employed by, the employer within 2 months of the date on which the service was interrupted or determined,

but the period during which the service is so interrupted or determined shall not in the circumstances referred to in subparagraphs (iii)–(vii), by reason only of this paragraph, be taken into account in calculating the period of service,

(b) where a worker has entered into a contract of employment with an employer within a period of twelve months after the completion of an apprenticeship with the employer the period of the worker’s apprenticeship shall be taken into account for the purpose of ascertaining the period of service of the worker with that employer under that contract of employment,

(c) where a business, undertaking or establishment or any part thereof has, whether before or after the commencement of this Act, been transmitted from an employer (in this paragraph called the transmittor) to another employer (in this paragraph called the transmittee) and a person who at the time of the transmission was a worker in the employ of the transmittor in that business, undertaking, establishment or part thereof becomes a worker in the employ of the transmittee—

(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transmission, and

(ii) the period of service which the worker has had with the transmittor or any prior transmittor shall be deemed to be service of the worker with the transmittee.

In this paragraph transmission , without limiting its ordinary meaning, includes transfer, conveyance, assignment or succession, whether by agreement or operation of law, and transmitted has a corresponding meaning,

(d) any period during which a person served as a member of the naval, military or air forces of the Commonwealth or of the Civil Construction Corps established under the National Security Act 1939 , as amended by subsequent Acts, of the Parliament of the Commonwealth, shall, subject to subsection (12), be deemed to be service of that person as a worker in the employ of the employer by whom that person was last employed before that person commenced to serve as such member.

(a) Subsection (11) (d) shall not, where the period during which a person served as a member of the naval, military or air forces of the Commonwealth commenced by enlistment or appointment in any such force after the second day of September one thousand nine hundred and forty-five apply to and in respect of that period unless, pursuant to an Act of the Parliament of the Commonwealth of Australia enacted before or after the commencement of the Long Service Leave (Amendment) Act 1967 , that person was entitled to apply to be reinstated in that person’s former civil employment on the termination of that person’s period of service as such a member and that person did not, at the expiration of the period during which that right subsisted, continue as a member of such a force.

(b) For the purposes of this subsection, the former employer to whom application for reinstatement is required to be made pursuant to an Act of the Parliament of the Commonwealth of Australia referred to in paragraph (a) shall, notwithstanding anything contained in any such Act, be deemed to be and always to have been the employer by whom the member of the naval, military or air forces of the Commonwealth was last employed before the commencement of the service, as such a member, entitling the person to apply to be reinstated in civil employment.