Tasmanian state industrial laws
As of 1 January 2010, all employers in the private sector in Tasmania are covered by federal industrial laws. For more information about federal industrial laws, visit federal industrial laws
However, state long service leave laws continue to apply.
There are no specific laws about employment of children in Tasmania, but the laws about compulsory education apply to prevent school-aged children working during school hours.
The Tasmanian Long Service Leave Act was amended on 1 July 2012. Long service leave is paid leave granted to employees to recognise a long period of service to the employer. The Tasmanian Long Service Leave Act applies to all award and non-award employers in Tasmania.
Long service leave is calculated on the basis of years of continuous employment. Continuous employment means service with an employer which is not interrupted. Some breaks from work do not interrupt employment for the purposes of the long service leave laws. The main ones are as follows:
annual leave or long service leave, public holidays, sick leave, jury service or leave to attend court;
maternity leave, but the time away from work is not taken into account when calculating the actual years of service;
any interruption caused by the employer to avoid obligations to pay long service leave or annual leave;
any termination of employment if the employee is re-employed within three months or six months if the termination was due to slackness of trade, but the period of time away from employment is not taken into account when calculating the actual years of service.
Entitlement to long service leave
Permanent employees and casual employees who are regularly employed for not less than 32 hours over each four week period are entitled to long service leave.
Casual employees and long service leave
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 2010. 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.
If the business is sold or transferred to another employer and the employee continues in employment with the new employer their long service leave entitlement also transfers to the new employer.
Seek legal advice if employment is transferred between related corporations.
There are also special laws regarding transfer of employment between related corporations. Employers in this situation should seek legal advice.
Amount of long service leave entitlement
As of 1 July 2012, employees are entitled to 8 2/3rd weeks’ of paid long service leave after the completion of 10 years’ continuous employment with the employer. After the initial 10 years, employees are entitled to 4 and 1/3rd weeks paid leave for every additional 5 years of continuous employment.
Payment for long service leave
Long service leave is paid at the ordinary rate of pay at the time the leave is taken excluding overtime, penalties and allowances (including travel allowances). Shift premiums are included if they are part of the ordinary system of work. Discretionary bonuses are not included.
The value of board and lodging is regarded as part of the employee’s remuneration if they are part of the employee’s genuine place of residence. If the employee’s hours of work or rate of pay are not fixed, the long service leave entitlement is calculated as an average over the last 12 months.
The employer and the employee can agree about when payment for the leave will be made. Payment may be made at the commencement of the leave in a lump sum or on the regular pay day throughout the leave or in any other manner agreed to by the employer and the employee.
Any variations to the employee’s pay which come into effect do not have to be made during the period of the leave but the employee’s pay must be adjusted when the leave ends. If a public holiday falls during the long service leave and the employee would have been entitled to that holiday, the period of leave is increased by one day.
Taking long service leave
Long service leave must be granted as soon as practicable after it falls due, but the needs of the employer’s business must be considered. Unless the employer and employee agree to the leave being taken in two periods, long service leave must be taken in one period.
The employer and employee can agree to postpone the long service leave. Long service leave can be taken in advance if the employer and the employee agree.
Cashing out long service leave
The employer and the employee can agree to cash out any accrued long service leave. Employees can take a mixture of paid leave and cash.
Pro rata long service leave on termination of employment
Employees (including casual and part time employees) are entitled to pro rata payment of long service leave, to be paid out on all service, on termination of employment after seven years’ but less than 10 years’ continuous service.
The entitlement is calculated on the basis of 8 2/3rd weeks for every 10 years’ service. Pro rata long service leave on termination is only applicable in the following circumstances:
Death of the employee (the calculation of pro rata long service leave is different
in this situation (see below);
retirement of the employee;
termination of employment due to illness justifying termination of the employment;
termination of employment due to incapacity, domestic reasons or other pressing necessity;
termination of employment by the employer for reasons other than for serious and
Payment for any accrued long service leave must be made on the day of termination.
Seek legal advice if dismissing an employee
Seek legal advice before dismissing an employee for serious misconduct. See summary dismissal.
The long service leave is taken to begin on the day the employment is terminated so if a public holiday falls during this period an extra day must be paid.
Payment of long service leave on the death of an employee
If an employee dies before taking their long service leave or whilst taking their long service leave the employer must pay the personal representative any amounts owing for that long service leave entitlement. Any long service leave which has accrued for more than 10 years’ service is paid at the rate of 1/60th of the extra period of continuous employment.
If an employee dies after serving between 7 and 10 years continuous service the employer must pay the employee’s personal representative at the rate of 1/60th of the period of continuous employment.
Long service leave records
Long service leave records must be made in writing and kept up to date. Employees are allowed to inspect their long service leave records at any time which is reasonable.
Long service leave records must be kept on a particular form – visit Tasmanian Legislation
Long service leave records must be transferred to the new employer if the business is sold and the employee transfers their employment to the new employer.
Visit Worksafe Tasmania for more information.
The Tasmanian residential tenancies laws may apply to accommodation on farms which is not part of the wider lease of the farming property. These laws lay down rules 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.
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 as a part of the Better Off Overall Test (BOOT) may have the effect of making the tenancy ‘for value’ and the residential tenancy laws may then apply.
For more information on residential tenancies laws read the Residential Tenancies Authority booklet – Renting in Tasmania