What it does
The Long Service Leave Act 1987 (SA) establishes a statutory minimum entitlement to long service leave (LSL) or payment in lieu for workers who accumulate sufficient continuous service with an employer. At its core, s 5(1) provides that a worker with 10 or more years of service is entitled to 13 weeks of paid LSL for the first 10 years and 1.3 weeks for each subsequent completed year. This is a benefit that accrues automatically upon completion of the qualifying period and is not dependent on the employer’s discretion except in relation to timing.
The Act operates as a safety net. It prescribes how service is counted (s 6), when and how leave must be granted (s 7), the rate at which it is paid (s 8), and the circumstances in which a pro-rata payment in lieu becomes due on termination (ss 5(2)–(4)). Section 5(3) grants a pro-rata entitlement after seven but less than 10 years on termination, subject to exclusions for serious and wilful misconduct or unlawful termination by the worker. Death of the worker causes the entitlement to vest in the personal representative (s 5(5)).
Detailed mechanics are supplied for calculating the “ordinary weekly rate of pay”. Section 3(2) begins with the weekly rate at the relevant date (the day leave commences or payment in lieu arises), excluding overtime, shift premiums and penalty rates. Three qualifications then apply: (a) commission or piece-work earners have their earnings averaged over the preceding 12 months (with unpaid leave and workers compensation absences disregarded and the period grossed up); (b) hourly, variable-hours, casual or part-time workers have hours averaged over three years and multiplied by the final hourly rate; and (c) the value of employer-provided accommodation is added where it ceases during leave. These formulas were further refined by the 2015 amending Act which altered the disregarding of certain absences.