- Requesting leave
- Directing a worker to take leave
- Taking long service leave
- Taking leave in anticipation of an entitlement
- Record of leave
- Working whilst on leave
Long service leave should be taken in one continuous period. An employer should also grant a worker their long service leave as soon as practicable after the worker becomes entitled to the leave.
Any changes to this format of taking leave must be discussed between the worker and their employer and both must agree on the outcome. During this discussion, an employer and a worker may agree on:
- the taking of long service leave in separate periods
- the deferral of long service leave
- the granting and taking of long service leave on less than 60 days’ notice
- the taking of long service leave in anticipation of the entitlement to the leave accruing to the worker.
In the absence of an agreement, an employer should grant long service leave:
- as soon as practicable after the worker becomes entitled to the leave, taking into consideration the needs of the business
- in one continuous period
- with at least 60 days’ notice to the worker of the date from which leave is to be taken.
A worker should request to take long service leave as soon as practicable after they have become eligible. The worker does not have to give a set number of days’ notice; however, the worker should discuss with their employer a suitable time to take leave.
An employer cannot deny the worker’s request. However, an employer is entitled to take into consideration the operational requirements of the business when considering a worker’s leave request and can negotiate alternative dates. It is not reasonable for an employer to continually deny a worker their long service leave entitlement due to 'operational requirements of the business'. Once a worker requests to take their long service leave entitlement, the employer should negotiate a date for the worker to commence their leave.
It is May. Matt works as a tax accountant. Matt has just accrued his full long service leave entitlement and has asked his boss, Rhonda, if he can take his full entitlement starting on 10 July. As this is so soon after the end of financial year and the busiest work period for the company, Rhonda requests that Matt delay his leave until October. Matt and Rhonda come to an agreement where Matt will commence his long service leave on 15 October.
Directing a worker to take leave
An employer can direct a worker to take long service leave. However, the employer must give a minimum of 60 days’ notice to the worker prior to the period of long service leave that the worker is being directed to undertake.
It is March. Bobby runs a glass company, and has employed the same office manager, Lily, for 12 years. Lily has accrued a significant amount of long service leave, especially as she has elected not to use any of her entitlement to date. Bobby would like Lily to take a well-earned break.
Bobby schedules a meeting with Lily and informs her that he is directing Lily to take 6 weeks’ long service leave starting on 15 July (after the end of financial year activities have been completed). Bobby has provided Lily more than the required 60 days’ notice, and Lily will need to take the long service leave as directed by her boss.
Taking long service leave
A worker should take their long service leave in one continuous period. If a worker commenced leave on Monday, 1 August they would be expected to return to work 13 weeks later on Monday, 31 October (including weekends and public holidays).
However, an employer and worker may agree that the worker can take the long service leave in separate periods.
Joseph has 5 weeks of long service leave accrued. He would like to take the upcoming October school holidays off work to go away with his family. He would also like to save some of his long service leave to use during the January school holidays. Joseph talks with his boss, Harry, about the possibility of taking long service leave in two separate blocks. Harry is happy to support Joseph’s request as the business is quite busy over the next few months, and Harry would prefer Joseph not take the full 5 weeks in one block.
By agreement with Harry, Joseph books in 2 weeks leave for the upcoming school holidays, and a further 3 weeks leave in January.
Weekends and public holidays
When a worker takes long service leave, every day occurring after the commencement of leave is counted as a day of long service leave, this includes public holidays and days on which the worker would not normally work, such as weekends.
Oliver works 5 days per week, Wednesday through Sunday. Oliver is taking 3 weeks long service leave over the Easter period (which will occur between 15 and 18 April in that year). Oliver's long service leave will commence on Wednesday, 6 April and will return to work on Wednesday, 27 April.
Good Friday and Easter Monday will count as long service leave days despite those days being public holidays. Each Monday and Tuesday (days Oliver would not usually work) during that period of leave will also count as a day of long service leave.
Taking leave in separate periods
A worker may take their long service leave in separate periods (periods less than the full 13 week entitlement) if there is mutual agreement between the worker and the employer.
There is no set minimum number of days. A worker may take as little as 1 day long service leave if it is agreed to by their employer.
Unfortunately, the Long Service Leave Act does not provide commentary on how leave of less than the full 13 weeks is to be calculated or at what day it commences and ends. Assumptions can be made that a worker receives 13 weeks of 7 days of leave. Therefore, if a worker was to apply for 5 days of long service leave, they are actually applying for 7 calendar days of leave.
An argument could also be made that, similar to annual leave, when a worker applies for long service leave, they submit a request that covers the first work day of their leave until the last work day of their leave. All days in between are counted as long service leave days.
The Act is not clear on the application of shorter periods of leave.
Molly normally works five days per week from Monday through Friday and has weekends off. Molly decides to take 2 weeks of long service leave, commencing on the Monday immediately following her last Friday worked, and finishing on the Friday of the second week.
Molly think that this will equate to 12 days of her accrued long service leave entitlement as only the weekend falling between the two weeks also count as long service leave days.
When Molly next checks her accrued leave entitlements she see that her employer has deducted 14 days from her long service leave entitlement.
To avoid confusion within the workplace and so long service leave is applied consistently across the workplace, any employer who allows for short periods of long service leave, should consult with workers and establish a long service leave policy. An employer cannot implement a policy that would see their workers receive less than their statutory entitlement. For example, an employer could not deduct 2 days from the worker's entitlement for a single day of long service leave taken (1.4 days would be the maximum deduction permissible).
Some awards and agreements do provide commentary on how short periods of long service leave apply in relation to that workplace. For example:
The long service leave provisions for the South Australian Public Sector states that for periods of 7 or more calendar days of long service leave, the leave must commence on the first normal working day of absence and continue up to, but not including, the day on which the employee resumes duty, or commences other leave.
For periods of less than 7 calendar days, each work day of long service leave will equate to 1.4 calendar days.
If there is a disagreement between the employer and the worker in relation to the application of short periods of leave, an application should be made to the South Australian Employment Tribunal. As a regulator, SafeWork SA is unable to make a determination on aspects of long service leave outside of the provisions of the Act.
Taking leave in anticipation of an entitlement
A worker and their employer may enter into an agreement where the worker will take long service leave in anticipation of an entitlement. This agreement should be in writing, signed by both parties and a copy retained with the worker's employment record.
However, an employer has a right to recover any monies paid to a worker in respect of their long service leave entitlement if:
- the worker has taken long service leave in anticipation of an entitlement, and
- subsequently leaves their employment (for any reason) before the full entitlement has accrued.
The employer may deduct these monies from any monies entitled to the worker on the termination of their employment (such as for unused annual leave).
Catherine has worked for Mark for 8 years. Catherine does not have any annual leave left but wants to take leave to look after her child, Robert, who is recovering from an operation. As Catherine would be eligible for pro-rata leave if she left her current employment, Catherine and Mark have made an agreement that will allow Catherine to take 4 weeks of her long service leave entitlement.
At the end of her leave, Catherine decides that she will leave her employment to spend more time with Robert. As Catherine has completed 8 years in her current employment she would be eligible for a pro-rata long service leave payment of 10.4 weeks (8 years x 1.3 weeks). However, Mark is entitled to deduct the 4 weeks leave that Catherine has already taken from her final payment. Catherine will therefore receive a payment that covers the remaining 6.4 weeks of her pro‑rata long service leave entitlement.
Record of leave
Before long service leave is taken, the employer must provide the worker with a written statement setting out:
- the date of the notice
- the worker's current entitlement of long service leave (expressed in weeks or fraction of a week in hours)
- the start and end date of the long service leave period being taken
- the number of days of leave to be taken
- the number of long service leave days (if any) that will remain due to the worker at the conclusion of the leave
- the name of employer.
The employer must sign and date the notice.
A copy of this notice must be kept by the employer with the worker’s service record.
See Recordkeeping for further details.
Working whilst on leave
You must not engage in any other employment, in place of the employment for which you are on leave.
Sienna has two part-time jobs. Sienna is a finance officer who works 1 day per week at CC's Cafe and 3 days per week at All-Star Industries. Sienna does not work on Friday's. Sienna has accrued long service leave with All-Star Industries and is taking her full entitlement as leave.
During her 13 weeks' leave from All-Star Industries, Sienna is not allowed to work with any other employer on the 3 days she would usually work at All-Star Industries. She may continue to work 1 day per week at CC's Cafe.
Using the same scenario as above:
It is nearing the end of the financial year. Sienna's employer at CC's Cafe has asked if she might be able to work the next two Fridays to finalise the bookkeeping. Sienna has worked additional hours at the end of the financial year since she started work at CC's Cafe 4 years ago. As long as Sienna does not work on the 3 days she would usually work at All-Star Industries, she may pick up additional hours with CC's Cafe.
An employer must not engage a worker who they know to be on long service leave.
Tony is employed as a hairdresser and is currently on long service leave for 2 months. Tony’s best friend, Joey, owns a barber shop and is aware that Tony is currently on long service leave. Joey has asked Tony to come and work for him next week, whilst another worker is away on holidays. Tony agrees.
Both Tony and Joey are in breach of the Long Service Leave Act and could face penalties of up to $1000 each.
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.