Subsection 4(11)(a1) of the Long Service Leave Act 1955 (NSW) (“LSL Act”) ought to be changed to expressly provide that unpaid parental leave counts as service under the LSL Act.  

The provision needs to be changed because it has been construed as meaning that unpaid parental leave does not count as service for the purposes of long service leave. This construction is misguided because unpaid parental leave is a National Employment Standards entitlement that is incorporated as a term by the Fair Work Act 2009 (Cth) into the contracts of all national system and non-national system employees. This leave should therefore arguably be considered an absence under the terms of a worker’s employment. Section 4(11)(a1)(i) of the LSL Act deems that such absences count as service for the purposes of that Act.  

An amendment...would clarify that unpaid parental leave counts as service for the purposes of long service leave in NSW.

An amendment to the LSL Act in line with section 12(2)(d) of the Long Service Leave Act 2018 (Vic) would clarify that unpaid parental leave counts as service for the purposes of long service leave in NSW. The purpose of the LSL Act is to provide long serving employees with an extended respite from work. Workers should not have that respite deferred because they spend time at home when their kids are born. 

Cian Galea is a paralegal at Maurice Blackburn.