Long service leave for APS and Commonwealth employees

Who the Commonwealth Act covers

The Long Service Leave (Commonwealth Employees) Act 1976 covers people that the Commonwealth employs, full-time or part-time (s 10(1)). The employment must be under a law, or under a contract of service or apprenticeship (s 10(1)). This includes APS agencies and public authorities of the Commonwealth (s 4(1), s 4(6)).

The Act does not cover some people only because of their role (s 10(6)). These people include Defence Force members, people who get their pay as fees, allowances or commission, and honorary employees. They also include members of a territory public service and state staff on temporary transfer or loan. Reserve Bank staff and people who work only outside Australia are also not covered (s 10(6)).

Other Commonwealth laws cannot give you separate long service leave benefits, unless they say so expressly (s 22). We could not confirm a current list of Commonwealth bodies that have their own long service leave arrangements. If you are not sure, ask your employer.

How much leave you get

You cannot take long service leave until your period of service is at least 10 years (s 16(1)). Your credit is 3 months for every 10 years of service (s 18(1)). The formula is 3 x years ÷ 10, less any leave that you took before (s 18(1)). After 10 years, your credit continues to increase at 0.3 months a year.

While you are still employed, your credit counts only completed years. When you leave, your credit counts up to your last completed month (s 18(2)).

Prior service with other government employers

Some earlier continuous service can count. This service can be with a state government, a state authority, a local council, a territory public service or some other public bodies. It must continue directly into your Commonwealth job (s 6(1), s 11(2), s 11(3)). The regulations list more bodies that count as state authorities, for example some universities and hospitals (reg 8, Sch 1).

A gap of up to 12 months between jobs does not break your service. But the gap itself does not count (s 12(5), s 12(9)). Other earlier employment, for example private sector work, counts only if the regulations list that employer (s 7(2); reg 8(2), Sch 2).

Absences, part-time work and half pay

Paid leave counts as service. Unpaid leave does not break your service. But unpaid leave counts as service only if your employer decides that it counts. This rule does not apply to unpaid leave for illness or some types of defence service (s 12(2), s 12(3)).

If you worked full-time and part-time, you have a full-time credit and a separate part-time credit (s 4(1), s 18(1)). Your employer pays part-time leave on your average weekly hours, usually over the last 12 months (s 20).

You can ask to take leave on half pay for twice as long (s 16(3)). Leave on half pay uses your credit at half the rate (s 19(2)(a)). The Act does not give double pay. The APS agreement that we examined also does not give double pay.

Minimum period and enterprise agreements

The Act and regulations set no minimum length for a period of leave. But your agency's enterprise agreement can set a minimum. An example is the Australian Public Service Commission Enterprise Agreement 2024–2027. It uses the Act for eligibility and sets a minimum of 7 calendar days, at full pay or half pay (cl 231, cl 232).

This agreement also says that you cannot break the leave with other leave (cl 231, cl 232). The exceptions are where legislation or the re-crediting clause of the agreement permits it (cl 231, cl 232).

APS agreements from the 2023–24 APS-wide bargaining round share 59 common conditions. They generally use the Act for your eligibility. They add rules about minimum periods and re-crediting. Read the agreement of your agency.

Pay while you are on leave

Your employer pays you at the rate that you would get if you still worked in the same role (s 20(1), s 20(4)). Some allowances count as salary (regs 13 to 16). These are qualification allowances, district allowances, tool allowances and, in some cases, higher duties allowance (regs 13 to 16). Shift penalties, overtime and on-call allowances do not count (regs 18 to 20).

What happens when you leave

If you have 10 or more years of service, your employer must pay out your unused credit when you leave (s 16(4)). This applies for all reasons that you leave, except death (s 16(4)). You can ask in writing for no payment, or for a smaller payment (s 16(5), s 16(6)).

If you have 1 to 10 years, you get a pro rata payment only in some cases (s 17(2)). The first case is that you leave at or after the minimum retiring age. The second is that your employer retrenches you. The third is that you leave because of ill health that justifies it.

If you resign in the usual way before 10 years, you get nothing. Retrenchment means that your job is no longer necessary, the work is complete or the number of employees must decrease (s 4(1)). For APS employees, the minimum retiring age is 55, unless regulations prescribe a different age (s 4(10)(a); Public Service Act 1999 s 30).

If you die, the payment can go to your dependants (s 16(7), s 17(5)). If they do not get the payment within 12 months, it must go to your legal personal representative (s 23(3)).

The Act gives payment only when you stop work as an employee or die. It has no provision for a cash-out of leave while you are still employed (ss 16, 17).

Recent changes

The current compilation of the Act has the date 18 October 2023. Its last amendment removed an expired transitional section and did not change entitlements. The last compilation of the Regulation was on 1 July 2023.