Continuing casual health workers entitled to accrue long service leave in NSW

8 January 2018

The New South Wales Supreme Court has found that casual health workers who convert to permanent employment are entitled to accumulate long service leave during their continuous casual employment.

Justice Monika Schmidt stated that casual employees covered by the NSW Health Employees Conditions of Employment Award 2017 (the Award) who have ‘continuous service’ can accrue long service leave. Previously, employees who had at some stage been employed on a casual basis did not have their casual service considered in determining their long service entitlements.

Clause 17 of the Award allows employees 2 months long service leave on full pay after 10 years of service; thereafter additional long service shall accrue on the basis of 5 months long service leave for each 10 years of service.

Justice Schmidt advised the award contains notable deficiencies and she will refer the “unsatisfactory and ambiguous” long service leave provision to the NSW Industrial Relation Commission’s Chief Commissioner.

Health Services Union Branch Secretary Gerard Hayes described the ruling as significant and long-sought, stating “for decades, [health service workers] have been denied their full long service leave entitlement”.

Mr Hayes outlined that other areas of NSW Health would be affected, the ruling setting the precedent for other awards that contain like provisions.

The Health Services Union was represented by Alana Heffernan of Maurice Blackburn, who stated the union’s win “should flow on to other public health employees, including nurses, midwives and doctors, who have also been deprived of their long service leave entitlements“.

Advice for employers

More broadly and where the Award does not apply, long service legislation in NSW entitles employees who have been working continuously with an employer to the accrual of 2 months leave for 10 years of service. For employees to have worked for 5 years continuously, they are entitled to 1 month.

If an employee ceases employment before 5 years’ service there is no entitlement for long service leave. Continuous service accrual can be interrupted (but will not be broken) by paternal leave, leave without pay, absence due to industrial disputes and other rights.