New South Wales state industrial laws

Minimum conditions of employment

As of 1 January 2010, all employers in the private sector in New South Wales 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

In NSW, there are no age or hour limits for employing children in farming, but compulsory education laws prevent school-aged children from working during school hours. The Industrial Relations (Child Employment) Act 2006 also extends unfair dismissal protections to children.

The following records must be kept for each child (less than 18 years of age), in addition to other employment records, for a period of at least 6 years.

the name of the employer;
the ACN (if any) and ABN of the employer;
the name of the child;
the date of birth of the child as provided to the employer;
the date on which the child’s employment began;
whether the child’s employment is full-time or part-time;
whether the child’s employment is permanent, temporary or casual;
any remuneration paid to the child;
the days on which the child works for the employer (including the starting and finishing times and the total number of hours worked on each day);
if the child’s employment is terminated-the date on which the child’s employment is terminated.

If the business is sold and the child continues to work for the new owner, the records must be transferred to the new owner.

Long service leave

Long service leave is a paid entitlement recognising an employee’s long period of service with the same employer.

Under the NSW Long Service Leave Act 1955, employees who have completed at least 10 years of continuous service are entitled to two months (8.67 weeks) of paid long service leave, with a further one month for each additional five years of service.

Following amendments made permanent in 2022, employers and employees can now agree to more flexible arrangements for taking long service leave:

Leave can be taken in shorter periods (as little as one day) rather than in one continuous block.
Employees can give less than one month’s notice to take leave, provided the employer agrees.

These changes allow for greater flexibility in managing staffing and employee wellbeing while maintaining the core entitlement to long service leave.

Casual employees and long service leave

Under the Pastoral Award 2010, the previous exemption for casual employees no longer applies. From 1 January 2010, casual employees covered by this Award accrue long service leave on the same basis as other employees. Employers formerly covered by the Pastoral Industry Award 1998 should seek advice from their state farming organisation if unsure how this applies.

Continuous Service: means uninterrupted employment with the same employer. Service is not broken by absences due to:

approved leave, illness, injury, industrial disputes, or slackness of trade;
employer-approved absences;
or if the employee returns to work (or is re-employed) within two months of the break.

Continuous service vs years of service

Some absences, like parental leave, don’t break continuous service but don’t count toward total years of service for long service leave.

Payment for long service leave: Long service leave is paid at the ordinary rate of pay at the time of leave or the average over the last five years, whichever is higher. For irregular earnings, the rate is the greater of the 12-month or five-year average. Weekly bonuses and the value of board and lodgings are included, but shift, penalty and overtime payments are excluded. Leave cannot be cashed out, except when paid on termination, and must be paid to the employee’s estate if they die.

Payment for long service leave on termination of employment: After five years’ service, long service leave must be paid pro rata if employment ends due to illness, incapacity, domestic necessity, or by the employer (unless for serious misconduct). After 10 years, payment for all accrued leave is required regardless of the reason. All payments must be made immediately on termination.

Taking long service leave: Long service leave must be granted as soon as practicable after it falls due, considering the employer’s business needs. It is normally taken in one continuous period, unless both parties agree to split it as follows:

Up to 2 months: may be taken in 2 periods.
2–19½ weeks: in 2 or 3 periods.
Over 19½ weeks: in up to 4 periods.
Leave of at least one month may be taken in advance by agreement, and any public holiday during leave adds an extra day.

Formalities for long service leave: Employers must give employees at least one month’s notice when they require them to take long service leave. Employers must keep detailed records showing each employee’s long service leave accruals, entitlements, and leave taken. These records must be retained for six years from the date of the last entry.

Residential tenancies laws

NSW residential tenancy laws may apply to farm accommodation if it is not part of a broader farm lease. These laws set rules for notice periods, bonds, rent, repairs, and inspections, with penalties for breaches.

If accommodation is part of an employment package, tenancy notice periods (usually 60 days) still apply even after termination, unless the farmer successfully applies to the tenancy tribunal for hardship.

Tenancy laws do not apply if the accommodation is rent-free, but if it forms part of a formal employment agreement or BOOT assessment, it may be treated as ‘for value’ and covered by tenancy laws.

For more information on NSW residential tenancies laws, visit NSW Fair Trading. For more information on Accommodation visit Accommodation | The People in Dairy.

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