Workplace Entitlements Based On Length Of Service

‘Length of service’ is the term used to describe the time you have been employed by your employer. This period of time is used to establish your right to access certain workplace entitlements and the size of those entitlements. This rule applies to national system employees.

What does the term ‘national system employees’?

‘National system employees’ refers to anyone who is:

• employed by private enterprises in Queensland, New South Wales, South Australia and Tasmania;
• employed in Victoria (where limited exceptions apply in relation to State public sector employees), the Northern Territory and the Australian Capital Territory;
• employed by local government in Tasmania;
• employed on the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands and on Norfolk Island;
• employed as flight crew officers or as waterside and maritime employees working in interstate or overseas trade or commerce;
• employed in Western Australia by a constitutional corporation; and
• those who are employed by the Commonwealth or a Commonwealth authority.

People who are not employed by a national system employer are covered by different legislation and a different definition of ‘length of service’ will apply.

How do absences factor into the length of service?

Length of service typically relates to continuous service; classified as a period of unbroken service with the same employer.

There are two main reasons why your length of service is counted:

1. for parental leave entitlements, the right to request flexible working arrangements and the notice period required should your employment be terminated by resignation, dismissal or redundancy); and
2. for other entitlements, including your annual leave entitlement and your entitlement to make a claim for unfair dismissal.

In determining your length of service, it’s essential to factor in any periods of absence. Periods of unpaid leave may count towards continuous service depending on the type of entitlement being sought. However, regardless of the nature of workplace benefits tied to your length of service, unauthorised absences should not be included when assessing your continuous service period. This means that any time during which you were absent from work without proper approval cannot be considered as part of your service period, even if you remain employed by the same employer.

Authorised absences – what can be included?

Some periods of leave do not need to be excluded from the continuous service calculations if they have been authorised by your employer. These include:

• unpaid annual leave;
• unpaid personal or carer’s leave;
• study leave;
• unpaid bereavement leave; and
• time spent off-site to attend conferences of other work-related events.

How are parental leave and flexible working arrangements determined?

To access parental leave and to have the right to request flexible working arrangements, a worker must have completed at least one year of continuous service with their employer. Casual employees employed on a regular and systematic basis for at least twelve months may request flexible working arrangements and are also entitled to parental leave, so long as a reasonable expectation exists that they would have continued to work on a regular and systematic basis had they not taken parental leave.

Calculations for periods of parental leave and flexible working arrangements should factor in periods of approved leave.

Notice periods

When an employee is made redundant, they will usually be paid in lieu of notice. The notice period varies depending on the employee’s length of service. These are:

• 1 week’s notice for 1 year or less of continuous service;
• 2 weeks’ notice for more than 1 year and up to 3 years of continuous service;
• 3 weeks’ notice for more than 3 years and up to 5 years of continuous service; and
• 4 weeks’ notice for more than 5 years of continuous service.

Any employee over the age of 45 who has also completed at least two years of continuous service is entitled to an additional week’s notice.

Calculating long service leave entitlements

Long-service leave entitlements are based on your length of service, but these differ between each state and territory and will need to be calculated based on the legislation of the state or territory where the worker is employed.

Calculating the length of service to ascertain a worker’s workplace rights and entitlements can be complicated. If you need assistance with worker’s rights pertaining to workplace entitlements, our employment lawyers can help.