South Australian state industrial laws
Minimum conditions of employment
As of 1 January 2010, all employers in the private sector in South Australia are covered by federal industrial laws. For more information about federal industrial laws go to federal industrial laws.
However, state long service leave laws continue to apply.
Employing children
There are no specific laws about employment of children in South Australia, but the laws about compulsory education apply to prevent school-aged children working during school hours.
Long service leave
Long service leave is paid leave granted to employees to recognise a long period of service to the employer.
The SA Long Service Leave Act 1987 applies to all award and non-award employers in SA.
Amount of long service leave under the Long Service Leave Act 1987
All employees, including casual employees, who have completed 10 years of continuous service with an employer are entitled to 13 weeks’ paid leave. After the initial 10 years the long service leave entitlement is 1.3 weeks for every completed year of service. Weekends and days when the employee would not normally have worked including public holidays are included in the calculation of the 13-week period of leave.
Where employment is terminated after seven years of service, provided the termination is not for serious and wilful misconduct, the employee is entitled to a payment of 1.3 weeks pay for every year of service. If the employee dies, the long service leave entitlement is paid to the employee’s personal representative.
Payment for any accrued long service leave must be made on the day of termination.
Long service leave for casuals
Employers who were formerly covered by the Pastoral Industry Award 1998 should note that the exemption for casual employees from the long service leave entitlement no longer applies in the Pastoral Award 2020. As of 1 January 2010, these employees will begin accruing long service leave. Employers should seek advice from their state farming organisation if this applies to them.
What is continuous service?
Continuous service is service which is not interrupted or broken. Some absences from work are not counted as interrupting service. The main ones are as follows:
- absence of the worker because of illness or injury;
- absence of the worker because of annual leave or long service leave or any other form of leave;
- absence of the worker under the terms of the worker’s employment contract;
- absences caused by the employer with the intention of avoiding long service leave obligations;
- absences caused by an industrial dispute;
- absences caused by the employer due to slackness of trade;
- other absences where the worker returns to the service of, or is re-employed by, the employer within two months of the date on which the service was interrupted.
Continuous service is not equivalent to number of years service
Whilst some absences such as parental leave and breaks due to industrial action or slackness of trade do not break continuity of service, these absences from work are not included when calculating the ‘number of years’ of service.
Payment for long service leave
Long service leave is paid at the ordinary weekly rate of pay, not including overtime penalty rates and shift payments, and unless the employer and the employee agree otherwise must be made either in a lump sum in advance for the whole period, or on the regular pay day. Any pay increases during the time when the long service leave is being taken will apply to the employee.
If the employee’s wages are irregular or the employee is employed on the basis of commission or piece rates, the ordinary rate of pay is calculated by averaging the weekly earnings over the last 12 months.
The ordinary rate of pay for casual or part-time employees and employees with varied hours of work is calculated by averaging the number of hours worked over the last three years.
If accommodation provided during employment is not provided whilst the employee is on long service leave, the employee must be paid an amount to compensate them for loss of this entitlement based on the fair and reasonable value of that accommodation.
If the employer and the employee agree, long service leave can be cashed out. In this case the value of any accommodation does not have to be paid.
This form must be completed by the employer and given to the employee when long service leave is paid out.
Taking long service leave
Unless the employer and the employee agree otherwise, long service leave must be granted by the employer as soon as practicable after it falls due and must be taken in one continuous period.
Long service leave can be taken in advance if the employer and the employee agree. If long service has been taken in advance and the employee’s employment is subsequently terminated, the act allows the employer to deduct the payment made for the long service leave from any termination payments.
The Long Service Leave Act specifically prevents employees from working whilst on long service leave and provides penalties for both employees and the employers who employ them.
Notice by the employer
Unless the employer and employee agree otherwise employers must give employees 60 days notice of the date when the leave is to be taken.
Leave records
The Long Service Leave Act requires employers to keep particular records about long service leave. There are also special forms which must be given to employees before they take long service leave and if payment is being made in lieu of long service leave. Long service leave records must be kept for three years after the employee’s service is terminated.
This form must be completed by the employer and given to the employee when taking long service leave.
This form must be completed by the employer and given to the employee when long service leave is paid out.
This form must be completed by the employer to keep a record of an employee’s long service leave.
These forms contain all of the legal requirements for long service leave records.
Residential tenancies laws
The SA residential tenancies laws may apply to accommodation on farms where the accommodation is not a part of the wider lease of the farming property. These laws lay down notice periods for ending the tenancy, whether bonds can be required and how much can be charged as well as rules regarding repairs and inspection and agreements with specific terms. Breaches of these laws attract fines.
Whilst residential tenancy laws can protect both the tenant and the landlord, the notice periods for ending the tenancy can be problematic when accommodation has been part of a remuneration package and an employee leaves as a result of their employment being terminated either with notice but particularly when dismissed summarily for misconduct. Notice periods will continue to apply (usually 90 days) and the only avenue the farmer will have to reduce this is to make an application to the tenancy tribunal on the grounds of hardship.
Residential tenancy laws do not usually apply where the tenancy is not ‘for value’ which means that no rent is paid for the accommodation. However, farmers should be aware that making accommodation a part of a formal workplace agreement where the accommodation is used to compensate for loss of other award entitlements may have the effect of making the tenancy ‘for value’ and residential tenancy laws may then apply.
