Long service leave - Tasmanian legislation - key provisions summary

Analysis

Long service leave - Tasmanian legislation - key provisions summary

Under proposed federal workplace relations changes to be introduced before the end of 2005, the long service leave entitlements for employees under federal awards are expected to be governed by the appropriate state or territory long service leave legislation.

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Under proposed federal workplace relations changes to be introduced before the end of 2005, the long service leave entitlements for employees under federal awards are expected to be governed by the appropriate state or territory long service leave legislation.

WorkplaceInfo has been providing a summary of the main provisions contained in the relevant state and territory legislation to allow those employers currently observing these entitlements under the applicable federal industrial instrument to plan for any changes which may occur as a result of legislative action by the federal government.

This article summarises the provisions of the long service leave legislation currently applying in Tasmania. Previous articles have summarised the relevant long service leave legislation in New South Wales, Victoria, Queensland, South Australia and Western Australia.

Source of legal obligation

The entitlement to long service leave in Tasmania is provided by the Long Service Leave Act 1976 [Tas]. The Act applies to most private sector employees in Tasmania. The long service leave conditions for employees in the building, construction and related industries, are determined by the Construction Industry (Long Service) Act 1997 [Tas].

Amount of leave

Under the Act, with the exception of employees in the mining industry, an employee, including a full-time, part-time and casual employee, is entitled to 13 weeks' long service leave after completing 15 years of continuous employment with the one employer.

An employee is entitled to an additional amount of long service leave on the basis of 8 2/3 weeks' leave upon completion of each additional 10 years' continuous employment with the one employer.

Mining industry employees: Under the Act, an employee in the mining industry is entitled to 13 weeks' long service leave after 10 years' continuous employment with the employer. A 'mining employee' is defined by the Act as an employee who is employed in, at, or about a metalliferous mine which is mining any mineral substance.

Casual and part-time employees are entitled to long service leave if they have completed 15 years' continuous employment. They are considered to be continuously employed if they have been regularly working for 32 hours or more in each consecutive period of four weeks.

Taking of leave

Long service leave must be taken in one period unless the employer and employee have agreed that it will be taken in two separate periods. Leave cannot be taken in advance. In considering a request for long service leave, the employer is entitled to have regard to the needs of the business.

Payment on termination of employment

With the exception of employees in the mining industry, an employee who has completed between seven years' and 15 years' continuous employment with the employer, is entitled to pro rata long service leave upon termination of employment, as a proportion based on thirteen weeks for fifteen years employment, under the following circumstances:

  • an employee who attains the age of retirement (65 years of age for males, 60 years of age for females), or is eligible for a service pension;

  • an employee whose employment is terminated for reasons of illness of a nature justifying the termination of employment;

  • an employee who terminates their employment for reasons of incapacity or domestic or other pressing necessity of a nature justifying termination of employment; and

  • an employee whose employment is terminated by the employer for any reason other than the serious and wilful misconduct of the employee.

Mining industry employees: An employee in the mining industry who has completed between five years' and 10 years' continuous employment with the employer is entitled to pro rata long service leave payment on termination, as a proportion based on thirteen weeks' for ten years employment, under the same circumstances above as for all other employees under the Act.

Payment for period of leave

An employee is to be paid ordinary pay for the period of the leave. 'Ordinary pay' is the remuneration the employee would receive if the employee remained at work during that period.

Ordinary pay includes:

  • shift penalties;

  • part-time and casual loadings;

  • allowances which are generally paid both for all hours worked and for all purposes of the award;

  • cash value of any board and lodging, other than board and lodging provided by the employer for work in localities distant from the employee's genuine place of residence.

The following payments are excluded from 'ordinary pay' and are not payable during a period of long service leave:

  • overtime payments;

  • award special rates such as danger, hardship or inconvenience type allowances;

  • travel payments and allowances;

  • bonus payments;

  • living away from home allowances; and

  • meal allowances.

Casuals - ordinary pay

The ordinary pay for a casual employee is based on the average number of hours worked over the previous 12 months immediately prior to the commencement on leave. Ordinary pay for an employee solely on commission, such as a commercial traveller or real estate salesperson, is based on the average weekly remuneration received over the three months immediately prior to the commencement of leave.

Payments - requirements

An employee taking long service leave is to be paid in one of the following ways:

  • in full when the leave commences;

  • on normal pay days throughout the period of leave; or

  • in any other way agreed upon between the employer and employee.

Cashing in long service leave

An employee, with the agreement of the employer, may 'cash-in' long service leave by receiving payment in lieu. This means that the employer may pay an employee the cash value of long service leave due and the employee will not be absent from work.

An employee may also take a combination of cash and leave.

Continuous employment

Generally, all absences count towards the accrual of long service leave. However, certain interruptions are not to be taken into account when calculating the period of long service - these are:

  • parental leave, ie. maternity, paternity and adoption leave;

  • any interruption arising from an industrial dispute;

  • termination for any reason, except for slackness of trade, but only if the employee is re-employed within three months of the date of termination;

  • stand-down or termination due to slackness of trade, provided that the employee returns to work or is re-engaged within six months and within 14 days of an offer by the employer to return to work or be re-engaged; and

  • any other absence approved by the employer.

An employee absent for these reasons will need to work for an additional period, equal to the period of the absence, before being entitled to long service leave.

Related

Long service leave - NSW legislation - key provisions summary

Vic long service leave - key provisions summarised

Long service leave - Qld legislation - key provisions summary

Long service leave - South Australia legislation - key provisions summary

Long service leave - Western Australia

 

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