Are employees permitted to take long service leave before they retire? We have several long-term employees and have had instances where employees ‘save’ their leave until they are ready to retire.They then apply to take long service leave and submit a resignation letter that coincides with the end of the leave.Is this permitted?
Whilst the requirements for taking long service leave will vary depending on the State Act or pre-modern instrument providing the entitlement, none prohibit the taking of the leave prior to resignation.In some instances, taking long service leave prior to retirement is a benefit for an employee as they have an opportunity to experience what their life might be like once they leave the workforce.
However, in many instances, the leave is intended to be taken once the employee achieves the required service, and employers may be able to direct an employee to commence long service leave.There are many advantages for employers in requiring leave be taken when employees become entitled to long service leave, including;
Despite the possibility of being able to direct employee onto leave, we recommend employers discuss the matter with employees and seek to reach agreement.
The following summary outlines the requirements for taking of long service leave under federal awards and in each Australian state and territory. Members of Ai Group can also see our Long Service Leave (LSL) Provisions Summary.
| Requirements for taking long service leave | ||||
|---|---|---|---|---|
Jurisdiction | Legislation | When do employees qualify for leave? | When is the leave to be taken? | Can the employee be directed to take leave? |
| Federal | 13 weeks after 15 years of service. Pro rata after 10 years of service is permissible. Next entitlement is 8.6667 weeks after a further 10 years of service. | Given and taken as soon as practicable after the employee becomes entitled to the leave | Yes. The employer must provide at least 28 days’ notice | |
| NSW | Long Service Leave Act 1955 | 8.6667 weeks of LSL after completing at least 10 years of service (2 months of leave based on 4.33335 weeks per month). 4.33335 weeks after each additional completed 5 years of service | Given and taken as soon as is practicable upon the employee becoming entitled to the leave. Or, where the employer and the worker agree that the leave may be postponed, the leave will be taken on that later date. | Yes. The employer must provide at least 1 months’ notice. "month" means 4 and one-third weeks. |
| VIC | Long Service Leave Act 2018 | 6.0667 weeks of LSL after 7 years of service | At any time after completing 7 years of continuous service. When an employee applies for LSL, the employer must grant the request as soon as practicable unless there is a reasonable business case for refusal. | Yes. The employer must provide at least 12 weeks written notice. |
| QLD | Industrial RelationsAct 2016 | 8.6667 weeks of LSL after 10 years of service. 4.33335 weeks for each additional 5 years of service. | An employee and an employer may agree when the long service leave will be taken. | Yes - if agreement cannot be reached, the employer can decide when the leave will be taken and provide at least 3 months notice that at least 4 weeks of LSL will be taken |
| SA | Long Service Leave Act 1987 | 13 weeks of LSL after 10 years of service. 1.3 weeks of LSL after each additional year of service. | Long service should be granted by an employer as soon as practicable (taking into consideration the needs of the business) after the worker becomes entitled to the leave. | Yes. The employer is required to provide 60 days’ notice of the taking of long service leave. The Act allows for agreement to be reached for the leave to be taken earlier or to be deferred. |
| WA | Long Service Leave Act 1958 | 8.6667 weeks of LSL after 10 years of service. 4.33335 weeks for each additional 5 years of service. | Long service leave should be taken by agreement as soon as practicable after the employee becomes entitled to the leave. | No. There are no specific provisions enabling employers to direct employees onto leave. The Act does however specify that the leave should be taken as soon as practicable upon the entitlement becoming due. If the employee has held the entitlement for at least a year, the employee can provide 2 weeks’ notice of their intention to take leave, and the employer is not able to refuse the request. |
| NT | Long Service Leave Act 1981 | 13 weeks of LSL after 10 years of service. 6.5 weeks of LSL after each additional 5 years of service. | Employer shall grant, and the employee shall take the leave to which they are entitled as soon as practicable after the leave has accrued, or on a date agreed between the employee and employer. | Yes – Should try to reach agreement first. If agreement cannot be reached and unless the employee agrees to a shorter period of notice, the employer shall provide at least 2 months’ notice of the date the employee shall commence long service leave. |
| TAS | Long Service Leave Act 1976 | 8.6667 weeks of LSL after 10 years of service. 4.33335 weeks for each additional 5 years of service. | Leave to be granted and taken as soon as practicable upon reaching the entitlement – or delayed as agreed. | No – The leave should be given an taken as soon as practicable upon entitlement, however an employee cannot be forced to take LSL during a period of workers compensation. If agreement cannot be reached, WorkSafe Tasmania can provide a direction to take the leave by giving at least 6 months’ notice. |
| ACT | Long Service Leave Act 1976 | 1.4 months of LSL after 7 years of service. 1 month of LSL after each additional 5 years of service. | An employer commits and offence if an employee becomes entitled to 4 weeks or more of long service leave and the employer does not grant the leave as soon as practicable after the employee becomes entitled to the leave (or at another time agreed) having regard to the needs of the business. | An employer commits an offence if they do not provide at least 60 days’ notice that the leave is to be taken (if the employee agrees otherwise, this doesn’t apply). |
For further advice about annual or personal leave please contact us or call the Workplace Advice Line on 1300 55 66 77.
