Part 4—Long service leave entitlements
34—Effective service entitlement
(1) Subject to this Act, a designated worker's entitlement to long service leave, or payment on account of or in lieu of long service leave, is determined according to the worker's aggregate effective service entitlement.
(2) A person will be credited with 3 months of effective service as a designated worker if they have—
(a) worked as a designated worker in the relevant designated sector for 1 or more days in a return period; or
(b) 1 or more days of allowable absence from work in the relevant designated sector in a return period.
(3) The total of months credited under subsection (2) to a person in relation to any return period applying under that subsection is the person's aggregate effective service entitlement.
(4) Subject to this Act, a person does not need to be credited with effective service in consecutive return periods to retain their effective service entitlement.
(a) a designated worker who has an effective service entitlement of less than 120 months is dismissed from employment as a designated worker; and
(b) the relevant industry board is satisfied, after affording the former designated worker and their former employer an opportunity to be heard, that the designated worker was properly dismissed on the ground of serious and wilful misconduct,
any effective service entitlement of the worker accrued in that employment is cancelled.
(6) If—
(a) a designated worker has an effective service entitlement of less than 84 months; and
(b) the designated worker has not previously had an effective service entitlement of 120 months or more; and
(c) the designated worker ceases to be employed as such for a continuous period that is equal to, or longer than, the preservation period for some reason other than physical or mental disability and no right to preservation of the effective service entitlement arises under this Act,
the effective service entitlement will be cancelled (but the subsection does not apply where the designated worker continues to be employed by the person in whose employment the entitlement accrued (either wholly or in part) or where the designated worker continues to be employed by an employer within the relevant designated sector).
(7) If a person takes long service leave, or receives a payment on account of or in lieu of long service leave, the person's effective service entitlement is reduced accordingly.
(8) If an industry board is satisfied that a person has been incorrectly registered as a designated worker under this Act, the board may, in accordance with a policy adopted by the board—
(a) cancel an effective service entitlement assigned to the person; and
(b) take such action as the board considers appropriate.
35—Crediting effective service under this Act and the Long Service Leave Act 1987
(1) This section applies if a worker changes the capacity in which they work for an employer—
(a) from work in a designated sector to work that is not in a designated sector; or
(b) from work that is not in a designated sector to work in a designated sector.
(2) If a person employed as a designated worker commences work in a different capacity in the service of the same employer, the following provisions apply:
(a) the person's continuity of service is preserved, but only in respect of the aggregate of the periods of work undertaken in each capacity in the service of that employer (and not in respect of any periods of work undertaken with any other employer);
(b) the period of effective service credited under this Act in respect of work undertaken by the person as a designated worker in the service of that employer (but no other employer) will be credited to the person under the Long Service Leave Act 1987 (on the basis that 1 month of effective service under this Act is equivalent to 1 month of service under that Act) (and an effective service so credited will then be cancelled under this Act).
(3) If a person employed in a capacity other than as a designated worker commences work as a designated worker in the service of the same employer, the following provisions apply:
(a) the person's continuity of service is preserved, but only in respect of the aggregate of the periods of work undertaken in each capacity in the service of that employer (and not in respect of any periods of work undertaken with any other employer);
(b) the period of service in respect of work undertaken by the person other than as a designated worker in the service of that employer (but no other employer) calculated in accordance with the Long Service Leave Act 1987 up to the point of change in the nature of employment will be credited as effective service for the purposes of this Act (on the basis that 1 month of service under the other Act is equivalent to 1 month of effective service under this Act).
(4) If—
(a) a person's service under the Long Service Leave Act 1987 includes a period of effective service credited under subsection (2); and
(b) the person becomes entitled to long service leave, or to a payment in lieu of long service leave, under that Act,
the relevant industry board must pay to the person's employer (being the employer referred to in subsection (2)) an amount calculated as follows:
OWP is the person's ordinary weekly pay applicable under the Long Service Leave Act 1987
M is the total number of months of effective service entitlement of the person as a designated worker under this Act minus the portion of effective service entitlement representing work undertaken by the person as a designated worker in the service of any employer in the relevant designated sector other than the employer referred to in subsection (2).
(a) a person's effective service entitlement under this Act includes a period of service credited under subsection (3); and
(b) the person becomes entitled to long service leave, or to a payment on account of long service leave, under this Act,
the relevant industry board may recover from the person's employer (being the employer referred to in subsection (3)) an amount calculated as follows:
OWP is the person's ordinary weekly pay applicable under this Act
D is the person's period of continuous service accrued under the Long Service Leave Act 1987 at the time that the person commenced work as a designated worker in the relevant designated sector (expressed in days).
(6) This section operates subject to any provision made in the regulations to take into account service for which a person has already taken long service leave or received a payment on account of long service leave.
36—Crediting effective service between different designated sectors
(1) This section applies if a worker changes the capacity in which they work for an employer from 1 designated sector (the first sector) to another designated sector (the second sector).
(2) If a person employed as a designated worker commences work in a different designated sector (the second sector) in the service of the same employer, the following provisions apply:
(a) the person's continuity of service is preserved;
(b) the period of effective service credited in respect of work undertaken by the person as a designated worker in the first sector will be credited to the person in respect of the long service leave scheme under this Act for the second sector;
(c) the industry board for the first sector will make a payment to the industry board for the second sector in accordance with a scheme established by the Minister for the purposes of this section.
(3) If the person subsequently commences work as a designated worker in another designated sector in the service of the same employer (including by working again in the first sector), this section will apply in the same way as it applied to the first change of employment from 1 designated sector to another (and may be applied from time to time to subsequent changes in employment in different designated sectors in the service of the same employer).
37—Long service leave entitlement
(1) Subject to this Act, a designated worker who has an effective service entitlement of 120 months or more is entitled to—
(a) 13 weeks long service leave in respect of the first 120 months; and
(b) 1.3 weeks of long service leave in respect of each subsequent 12 months of effective service entitlement.
(2) The employer in the relevant designated sector by whom a designated worker is employed when the long service leave entitlement arises must grant long service leave to the person if the person applies to the employer to take leave.
(3) After a person's long service leave entitlement arises, a subsequent employer in the relevant designated sector by whom the person is employed must grant long service leave to the person if the person applies to the subsequent employer to take the leave.
(4) However—
(a) a person is not entitled to take long service leave under this section in respect of work with a particular employer in the relevant designated sector within the first 3 months after commencing work with that employer; and
(b) an application for long service leave must be made at least 2 months before the person seeks to commence the leave; and
(c) the commencement of long service leave must take into account the reasonable needs of the employer; and
(d) the employer and the person may agree that the worker take leave in separate periods subject to the qualification that each such period must be at least 1 week in duration; and
(e) the employer and the person may agree that the person will receive a payment in lieu of long service leave, or a part of long service leave (with the calculation of the payment corresponding to the payment that would be made if the person took the leave).
(5) Subsection (4)(a) and (b) operate subject to any agreement between the employer and the person entitled to the leave about when the person will take long service leave.
(6) An agreement under subsection (4)(e) must be in writing signed by the employer and the person.
(7) If—
(a) a person takes long service leave; or
(b) a person's employment with the employer referred to in subsection (2) comes to an end before the person takes accrued long service leave and the person, in the approved form, makes an election under this provision,
the industry board for the relevant designated sector must pay to the person an amount calculated by multiplying the person's ordinary weekly pay by the period of leave referred to in paragraph (a) or (b) (as the case may be).
(8) If an agreement is entered into under subsection (4)(e), the industry board for the relevant designated sector must pay the amount payable under the agreement.
(9) An entitlement under this section applies subject to an enterprise agreement that provides for—
(a) long service leave to be taken; or
(b) a payment in lieu of long service leave,
in respect of a shorter period of effective service entitlement, employment or service.
(10) If an employer in a designated sector enters into an enterprise agreement that is within the ambit of subsection (9), the employer must provide a copy of the enterprise agreement to the relevant industry board within 21 days after the end of the return period in which the enterprise agreement was entered into.
(11) If a person dies, any entitlement of the person under this section vests in the person's personal representative.
38—Leave allowed before entitlement accrues
(1) An employer and a designated worker may agree on the worker taking long service leave in anticipation of the entitlement accruing to the worker under this Act if an enterprise agreement expressly provides for such an agreement.
(2) The agreement is to be based on 1.3 weeks of leave in respect of each 12 months of effective service entitlement.
(3) An agreement to take long service leave under this section must be in writing and signed by the employer and the person.
(4) If an agreement is entered into under this section, the industry board for the relevant designated sector must pay to the person the amount that would be payable if the leave was being taken under section 37, including, if relevant, an enterprise agreement referred to in section 37(9).
(a) a person takes long service leave under this section and receives a payment from an industry board; and
(b) before the entitlement to that leave accrues, the person ceases to work as a designated worker in the relevant designated sector for a continuous period of 12 months or more,
the industry board for the relevant designated sector may recover from the person an amount determined under the regulations (subject to any exception or qualification prescribed by the regulations).
39—Cessation of employment
(1) If, on application to the industry board for the relevant designated sector in the approved form, the industry board is satisfied that—
(a) —
(i) a designated worker has attained an effective service entitlement of 84 months or more (but less than 120 months); or
(ii) a designated worker has attained an effective service entitlement of less than 84 months and has previously had an effective service entitlement of 120 months or more; or
(iii) a designated worker has attained an effective service entitlement of 120 months or more but has not taken all of the long service leave to which the worker is entitled; and
(b) the designated worker has—
(i) died; or
(ii) ceased to work as a designated worker in the relevant designated sector because of a physical or mental disability that will prevent the person from working as a designated worker in the sector for a continuous period of 12 months or more; or
(iii) ceased to work as a designated worker in the relevant designated sector and will not be working as a designated worker in the sector for a continuous period of 12 months or more (from the time when the person ceased to work as a designated worker in the sector),
the industry board must pay the person (or the person's personal representative) an amount calculated as follows:
OWP is the person's ordinary weekly pay applicable under this Act as at—
(a) if the worker has died—the day of death;
(b) in any other case—the day on which the person ceased work as a designated worker
M is the effective service entitlement (expressed in months).
(2) If an industry board rejects an application under subsection (1), the board must give the applicant written notice of its decision in accordance with the regulations.
40—Entitlement if payment already made
A designated worker is not entitled to take leave or be paid for an entitlement under this Act if a payment has already been made in respect of a period of service that corresponds to the effective service entitlement under this Act.