Under the Long Service Leave Act 1987 (SA) an employee is entitled, after ten years continuous service, to long service leave on full pay amounting to thirteen weeks [s 5]. A further 1.3 weeks is granted for each completed year after 10 years service.

An employee who leaves their employment at any time after seven years continuous service is, in most circumstances, entitled to receive proportional payment of long service leave but employees dismissed without notice for serious misconduct may lose their pro-rata long service leave entitlements. With agreement from their employer, an employee who has worked for 10 or more years may ‘cash out’ either part or the whole of their accrued Long Service Leave.

Some employees may have their entitlements to long service leave regulated by an award or enterprise agreement which is different to these statutory entitlements. As a general rule, provisions in an award or enterprise agreement will override a State law if there is inconsistency and an intention to exclude the State law.

To check your Long Service Leave entitlement refer to the calculator tools on SafeWork SA's website.

Disputes

Safework SA receive enquiries and claims under the Long Service Leave Act 1987 (SA). South Australian employers and employees may complete an enquiry form and employees may additionally complete a claim form. For more information, visit the Safework SA website

Under the Long Service Leave Act 1987 (SA), Safework SA, as an inspector under the Fair Work Act 1994 (SA), has the power to inspect an employer's premises and records, and require them to answer questions relating to the enforcement of long service leave [s 11]. An inspector may direct an employer to grant leave or make a payment in lieu of leave within a set time frame [s 12].

Either an employer who disputes a direction to grant or pay leave, or an employee who is not granted leave, may apply to the South Australian Employment Tribunal (SAET) [ss 12 and 13]. An application by an employer must be made within 14 days of receiving notice from the inspector [s 12(3)]. SAET may not make an order to grant leave if the employee stopped working for the employer more than 3 years before making the application [s 13(4)]. Employees may make a monetary claim in the ordinary way. For more information, visit the SAET website

Special legislation applies to workers in the construction industry, see Construction Industry Long Service Leave Act 1987 (SA). There is provision for portable long service leave in the construction industry. For more information, visit the Portable Long Service Leave website.

The Equal Opportunity Act 1984 (SA) prohibits discrimination in employment on the grounds of age, sex, sexuality marital status, pregnancy, race or physical and intellectual impairment. It also prohibits victimisation and sexual harassment, including sexual harassment of an employee by an employer or another employee. Complaints must be made to the Commissioner for Equal Opportunity within 12 months of the incident, although the Commission can grant extensions of time [Equal Opportunity Act 1984 (SA) s 93]. If a complaint is not resolved by conciliation it generally goes to the South Australia Civil and Administrative Tribunal, but may be referred to the South Australian Employment Tribunal [ss 95B and 98B].

The rights contained in the Equal Opportunity Act 1984 (SA) must also be considered alongside similar rights provided by federal anti-discrimination law:

The scope of federal legislation differs sometimes from that of the State law, and the time during which a complaint can be made is different. The Commonwealth Acts are not intended to exclude or limit the operation of Equal Opportunity Act 1984 (SA) which is capable of operating concurrently with them, so complainants must choose whether to take proceedings under the State or the Commonwealth law, for they cannot take proceedings under both. See the Law Handbook sections on Discrimination.

Where a worker is dismissed in a discriminatory way they may also have to choose whether to exercise their rights under anti-discrimination legislation (Federal or State), or the provisions governing termination of employment in either the Fair Work Act 2009 (Cth) (for federal employees) or the Fair Work Act 1994 (SA) (for other employees).

See the Law Handbook section on Safety legislation.

See the Law Handbook section on Accidents at Work