- Long service leave entitlement
- Continuous service
- Stand down due to slackness in trade
- Stand down of workers during the Covid-19 pandemic
- Forced leave during a government directed stand down
- Working outside of South Australia
- Service quick reference guide
- Accrual prior to 1972
Long service leave entitlement
A worker is entitled to 13 weeks of long service leave after completing 10 years of continuous service. 10 years of continuous service may not be the same as 10 years since their employment start date as some types of leave do not count as service. A worker who has 10 years or more of continuous service is entitled to:
- 13 calendar weeks leave in respect of the first 10 years of service
- 1.3 weeks (9.1 days) leave in respect of each subsequent year of service.
A worker's employment status — e.g. full-time, part-time, casual — does not affect this rate of accrual.
Leave accrued during subsequent years – that is, for each year after the 10th year of continuous service – may be taken immediately upon accrual with approval by the employer.
Liam has worked for his employer for 13 years. Liam took 10 weeks long service leave when he received his entitlement. Liam would like to take an extended holiday and has arranged with his employer to use his remaining long service leave entitlement. Liam has 3 weeks left from his initial 13 weeks long service leave entitlement and has accrued a further 3.9 weeks leave since that time.
A pro-rata payment is available to a worker, upon leaving their employment, once they complete 7 years of service. The pro-rata payment is to be equal to the monetary equivalent of 1.3 weeks (9.1 days) leave in respect of each completed year of service.
Aisha has accepted a new job and has given 4 weeks' notice to her employer, Fabulous Floors. She has been with Fabulous Floors for 8½ years. When Aisha leaves her job, Fabulous Floors will need to pay Aisha pro-rata long service leave of 10.4 weeks (8 x 1.3 weeks). Aisha's entitlement will be paid at her current rate of pay.
A worker is not entitled to this payment if:
- the worker's contract of service is terminated on the ground of serious and wilful misconduct on the part of the worker, or
- the contract of service is unlawfully terminated by the worker (such as not giving the required notice period for resigning).
Ajay has worked at Fairview Hospital for 7½ years. Ajay quit his job to start his own business. Ajay did not provide his workplace the required 2 weeks' notice period. Ajay has unlawfully terminated his employment by not working his notice period. On that basis, Fairview Hospital has the legal option to withhold his pro-rata long service leave payment.
See our Pro-rata entitlement page for further details.
Service is defined as ‘continuous service with the same employer or related employers under a contract of service or series of contracts of service’.
The service needs to be uninterrupted or unbroken for the duration of the worker's employment subject to the exceptions outlined in the Act (see below).
Any weeks that do not count towards service must be added on to the 10 years before a long service leave entitlement has been reached. This is of particularly note for casual workers who do not receive paid leave.
Jan is a full-time worker and is entitled to paid leave. However, Jan took 6 weeks leave without pay during her 6th year of service. Therefore, Jan must work 10 years plus at least a further 6 weeks before she is eligible for long service leave. A pro-rata long service leave entitlement would be available after 7 years and 6 weeks.
Continuous service for casual employees
For a casual worker to accrue long service leave their employment must be continuous. A casual worker's contract of service includes being employed under either a single contract or a series of contracts.
Whether or not the individual contracts together constitute ‘a series’ will depend on:
- the regularity of the engagements
- the period of time between the engagements
- the reasons for the interludes between engagements.
Casual employees generally have continuity of service unless there is a prolonged period of time between contracts or there is a clear termination of the casual contract by either the employer or the worker.
Emily works in a cafe and is a casual worker. She has been employed at the cafe for 8 years.
Every year the cafe closes from 24 December and reopens on 1 February. This absence from work each year does not break Emily’s continuity of service with her employer.
Emily is therefore entitled to long service leave as there is an understanding that her employment will continue once the cafe reopens.
Service undertaken by a worker that is intermittent, sporadic or irregular can only satisfy the test of ‘continuous service’ if the breaks between service fall under the leave categories that preserve continuity (see below).
Leave that counts towards continuity of service AND long service leave accrual
Periods of leave that are included in long service leave calculations are:
- absences from work in accordance with the worker's contract of service
- this may include days of paid leave such as Christmas stand-down period, employer funded maternity/paternity/parental leave (consult your contract of service or workplace agreement/award for details)
- absences from work due to illness or injury (paid or unpaid sick leave, including for casual workers)
- absences from work due to the worker being on annual leave or long service leave
- absences where a worker enters into service as a member of the Armed Forces of the Commonwealth (not as a member of the Permanent Forces)
- the period of service will be regarded as service with the employer by whom the worker was last employed
- a break in the worker's service brought about by the employer in an attempt to avoid an obligation or liability imposed on the employer by the Act or by an award, agreement or scheme relating to long service leave
- a break in the worker's service brought about by the employer where the worker is re-employed pursuant to an order of a court or SAET.
- Example: A worker who has their employment terminated and, following a hearing, the SAET determines that the termination was not fair or just; the worker will be reinstated with full entitlements.
Leave or absences that do not break service but DOES NOT count towards long service leave accrual
Periods of leave that count as continuity of service but do not form part of your long service leave calculation are:
- government-funded maternity/paternity/parental leave
- unpaid maternity/paternity/parental leave
- leave without pay (if pre-arranged with, and agreed to by, the employer before leave is taken)
- any other kind of leave not mentioned above
- absences due to a worker being temporarily laid off work and is subsequently re-employed by the same employer within 2 months
- absences due to an industrial dispute (either directly or indirectly) where the worker returns to work, in accordance with the terms of settlement of the dispute or is subsequently re-employed by the same employer
- the standing down of the worker by the employer on account of slackness in trade where the worker is subsequently re-employed by the employer
- absences of up to 12 months between the completion of an apprenticeship and when the worker is re‑employed by the same employer (the period of apprenticeship will count as service).
Three months ago, Lisa completed her apprenticeship to become a chef. Lisa completed her final 2 years of her apprenticeship with Pink Salt restaurant. A chef has recently left the restaurant and Pink Salt have offered Lisa permanent employment. Lisa has accepted the position and started the role.
As Pink Salt has re-employed Lisa within 12 months of completing her apprenticeship, the 2 years of Lisa's apprenticeship with Pink Salt count as service. Therefore, Lisa will need to work a further 8 years before reaching her long service leave entitlement, assuming that she does not have any absences in the future that break or do not count as service.
Maternity/paternity/parental leave that is paid by your employer as part of your contract of service counts towards your service.
For example, your contract of service may state that you get 15 days maternity leave in addition to the government-funded leave.
Generally, when a person takes Government-funded maternity/paternity/parental leave they take unpaid leave from their employer.
Government-funded maternity/paternity/parental leave does not count as service. It also does not break your service. Parental payments made to your employer to pass onto you, also do not count as service.
Example - Maternity leave
Sarah has just celebrated her 9th anniversary since commencing work with her employer. Three years ago, Sarah took 12 months maternity leave when her first child was born. Sarah has just had her second child and has taken 12 months maternity leave.
Before commencing maternity leave, Sarah had completed 8 years continuous service with her employer. Her continuous service excluded the 12 months leave Sarah took following the birth of her first child, as maternity leave is not counted as service.
When Sarah returns to work, she will have to work at least 2 years past her 10-year anniversary with her employer before being eligible for long service leave (10 years plus 2 x 12 months).
If at the conclusion of her maternity leave, Sarah chooses not to return to her job and lawfully resigns her position, she would be eligible for pro-rata long service leave (9 years minus 12 months taken during her first maternity leave = 8 years service).
Example - Paternity leave
Following the birth of his first child Sean has decided to take 12 weeks parental leave to help with the baby. When commencing paternity leave Sean has worked with his employer for 9 years and 6 months. Upon returning to work 12 weeks later, Sean's continuity of service has been unaffected. However, Sean will need to work a further 6 months after his return to work before being eligible for long service leave (3 months to reach his 10-year anniversary with his employer plus 12 weeks to make up time that did not count towards service).
Leave without pay
All workers are entitled to take leave, but some workers do not have a paid leave entitlement or a worker may require additional leave beyond their paid entitlement.
Your continuity of service is not affected by unpaid leave if your employer agrees to the leave (prior to taking the leave). Dates can be re-negotiated, but must be agreed to by your employer.
A casual worker may also take unpaid leave. You should notify your employer of your intended leave dates and record the dates in some way (e.g. via email, on a shared calendar). You need to notify your employer of the date you will be available for new shifts. If you return to the same employer, this period of leave will not break service but will not count as service.
Alistair first started working with his employer in May and has now been with his employer for 9 years. Alistair is a casual shift worker and does not get paid leave. Alistair is a hard worker and his employer is happy to agree to him taking unpaid leave for the four weeks over January each year so Alistair can spend time with his family. Before Alistair is entitled to take long service leave he must work at least an additional 40 weeks past his 10 year anniversary with his employer to 'make up' for the 4 weeks of leave taken each year for the past 10 years.
Stand down due to slackness in trade
Employers can tell employees not to work if there is a slackness in trade. A slackness in trade is usually temporary and employees can’t usefully be employed elsewhere in the business.
This is different from an employee taking unpaid leave. It is also different from a shut down or a government directed stand down during Covid-19.
During a stand down due to slackness in trade, employees:
- don’t work
- don’t have to be paid
- stay employed.
Where an employer stands down a worker, and the worker is subsequently re‑employed by the employer, this will not affect the worker’s continuity of service, although it does not count as service.
Different or extra rules may apply to standing down employees under an enterprise agreement or employment contract.
Workers employed on a casual basis are not technically ‘stood down’. Their employer would simply not roster the worker for any hours whilst there was no useful work available.
Joe worked for his employer for 8 years as a full-time worker before he was stood down due to a lack of work coming into the business. Seven weeks later business picked up and Joe's employer asked him to resume work. This time being stood down did not affect Joe's continuity of service in regard to his long service leave benefits. However, Joe will need to work 10 years and 7 weeks from the date he was first employed with the business before being entitled to long service leave.
Stand down of workers during the Covid-19 pandemic
Fair Work Ombudsman position
The Fair Work Ombudsman has made a determination on how a government directed stand down applies under the Fair Work Act.
Employers may have been able to legally stand their employees down during the COVID-19 pandemic when:
- the business has closed because of an enforceable government direction (which means the employee can't be usefully employed, even from another location)
- there's a stoppage of work due to lack of supply for which the employer can't be held responsible.
An employer doesn't have to pay an employee when either the federal or a state or territory government or officer makes an enforceable government direction that prevents an employee from working.
During a stand down workers remain employed. The period the worker is stood down does not break their service. This period also counts as service. All leave provisions (under the Fair Work Act) continue to accrue during a stand down period.
Casual workers are also covered by the above provisions (although due to the nature of their employment, they cannot be 'stood down').
See the Fair Work Ombudsman website for further details on stand down provisions during Covid-19.
Impact of government directed stand down on SA long service leave provisions
The Fair Work Ombudsman does not have jurisdiction over long service leave provisions relating to workers who fall under the Long Service Leave Act 1987 (SA). Their jurisdiction only extends to workers who fall under the federal long service leave system (see Who is entitled to long service leave). Therefore, their determination in relation to Covid-19 may not apply under the SA Act.
The Long Service Leave Act 1987 (SA) does not provide for a circumstance where a business is forced to close due to a government directive and workers are stood down. SafeWork SA are currently waiting on advice on how the government directed stand downs and JobKeeper should be applied within the context of our Act.
In the meantime, employers are welcome to apply the Fair Work Ombudsman decision to their workers' long service leave provisions. We have provided advice on how we see the application of the Fair Work Ombudsman decision on long service leave.
Alternatively, employers or workers may elect to seek clarification through an application to the South Australian Employment Tribunal.
When applying the Fair Work Ombudsman's position during a government directed stand down, SafeWork SA's current position (although this may change as we receive legislative advice) is:
Workers, regardless of their employment status, who were nominated by their employer and continued to be paid by their employer through the JobKeeper scheme retain their continuity of service and continue to accrue long service leave.
If you are a full-time worker or part-time worker your long service leave entitlements are not affected by JobKeeper or stand down. Part-time workers who are subject to the averaging process will use their contracted minimum hours in the calculation.
If you are a casual employee who is subject to the averaging process to calculate your long service leave provisions, any full weeks where you did not work any hours will count as zero hours for that week.
Example – Casual worker – 0 hours
Kelly works as a casual in retail. Kelly has been with her employer for 8 years. When the coronavirus pandemic hit and all retail was ordered to close Kelly was unable to pick up any shifts. When the JobKeeper scheme was introduced, Kelly's employer nominated her to receive the payment.
While retail remained closed, Kelly worked zero hours. Eight weeks later when retail stores reopened Kelly's employer was able to offer her new shifts.
Kelly's time on JobKeeper means that her service in respect to long service leave has not been broken and the time counts towards her service. The time Kelly did not receive shifts prior to the introduction of JobKeeper does not break her service and also counts toward service as this absence is in accordance with her contract of service (i.e. casuals are not guaranteed work).
When Kelly becomes eligible for long service leave, her averaging calculation will include 8 weeks of 0 hours. These 8 weeks of 0 hours will also be counted in any pro-rata calculation if Kelly leaves her employment before reaching her full long service leave entitlement.
Example – Full-time worker – Reduced hours
Robyn is Kelly's manager in the retail store. Robyn works full-time. When the store closed during the coronavirus pandemic Robyn was placed on reduced hours working from home 2 days per week and was nominated for JobKeeper.
Eight weeks later when retail stores reopened Robyn returned to full-time work.
Robyn's service in respect to long service leave has not been broken and counts as service towards long service leave. Robyn will be eligible for long service leave at her full-time rate once she completes 10 years of continuous service with her employer.
Until we can clarify the application of JobKeeper on long service leave, disputes between employers and workers on this matter should be directed to the South Australian Employment Tribunal.
Workers who did not receive JobKeeper, should seek a judgement from the South Australian Employment Tribunal.
Forced leave during a government directed stand down
Under the Long Service Leave Act 1987 (SA), an employer cannot force a worker to take long service leave unless they first provide the worker with 60 days' notice. There was no amendment to the Long Service Leave Act due to Covid-19 that changed this provision.
Working outside of South Australia
Long service leave continues to accrue where a worker:
- works within the state of SA
- works outside SA but is predominantly employed in SA
- works outside of SA under a contract of employment governed by the law of South Australia.
Josie is employed by a South Australian company, and part of this work requires Josie to undertake work in Broken Hill for approximately 6 months per year.
The work undertaken by Josie in Broken Hill counts as service for the purposes of calculating her long service leave entitlements in the same way as her work in SA.
Service quick reference guide
|Does not cause break in continuous service||Breaks continuous service||Counts in calculation of period of service|
|Absence due to illness or injury||No||Yes|
|Absence due to the taking of long service leave||No||Yes|
|Absence due to the taking of annual leave||No||Yes|
|Absence due to any other kind of leave||No||No|
|Stand down due to slackness in trade||No||No|
|Break in worker’s service due to employer action/decision where the worker returns to work or is re-employed by the employer within two months.||No||No|
|Stand down due to a government directive during the Covid-19 AND received JobKeeper||No*||Yes*|
|Stand down without pay due to a government directive during the Coronavirus pandemic AND did not receive JobKeeper||No*||Undetermined*|
* Until otherwise determined by a judicial decision.
|Scenario||Counts in calculation of period of service|
|Apprenticeship||Worker enters contract of service with employer within 12 months after completion of an apprenticeship with the employer||The period of apprenticeship will be taken into account in calculating the worker’s period of service|
|Armed Forces||Worker enters into service as a member of the Armed Forces of the Commonwealth (not being service as a member of the Permanent Forces)||
That period of service will be regarded as service with the employer by whom the worker was last employed.
|Industrial disputes||Break in worker’s service indirectly or directly from an industrial dispute where worker returns in accordance with terms of settlement or is re-employed by the employer after dispute settled||Continuity of service is not broken, but absence will not be counted in calculation of worker’s period of service.|
|Avoidance of obligation or liability||Break in worker’s service due to employer trying to avoid obligation or liability imposed on the employer under the Act or award, agreement or scheme relating to LSL||Continuity of service is not broken and the period of absence will be counted in calculating the worker’s period of service|
|Covid-19||Break in the worker's service due to a government directive to close the workplace.||
There is no provision within the SA Long Service Leave Act to cover stand downs due to a government directive.
Continuity of service may apply and the period of absence may count when calculating the worker’s period of service.
The outcome will depend on a decision by the South Australian Employment Tribunal or a judicial decision.
Employers may wish to adopt the position of the Fair Work Ombudsman in lieu of a SAET hearing.
Accrual prior to 1972
The rate of long service leave accrual differed prior to 1972. If a worker’s employment pre-dates 1972 please complete our long service leave form.
Questions about your long service leave?
If you have read all of the long service leave information on our website and you still have questions or concerns about your entitlements, please complete our long service leave form and we will get back to you.