What is long service leave and who is entitled to it?
An employees entitlement to long service leave forms part of the National Employment Standards (NES). The entitlement to long service leave is based on an employees period of continuous service, and can be different depending on the state or territory in which they are employed.
In Queensland, if an employee has completed 10 years of continuous service with an employer they are entitled to 8.6667 weeks of paid long service leave. If the employee completes at least a further 5 years of continuous service, they are entitled to a further 4.3333 weeks. For employees who have given more than 15 years of continuous service, long service leave is made available to them as it accrues.
What is considered ‘continuous service’?
Continuous service is when an employee remains working for one employer, continuously and for an extended period of time. Some absences from the workplace, however, do not constitute a break in the period of continuous service, in fact, some periods of absence are actually counted towards the total years of continuous service. These occasions include:
- When an employee is on paid leave (such as when they are injured and receiving workers compensation);
- When an employee is on secondment;
- If an employee is stood down and then their employment is reinstated (it must be found that they were stood down only to avoid paying long service leave); or
- When an employee works for one of its employers
How do I access my long service leave?
An industrial instrument, such as a certified agreement may include provisions about when, and the conditions on which long service leave may be taken.
Generally, once an employee has gained 10 years of continuous service, they are entitled to use their long service leave at a time/s agreed upon by both the employee and the employer. If an agreement cannot be reached, the employer may decide that an employee take at least four weeks’ leave, provided they have been given more than three months’ notice.
A modern award or certified agreement may include provisions that allow an employee to ‘cash out’ long service leave, without taking any leave. In the absence of a provision in a modern award or certified agreement, an employee may make an application with the Queensland Industrial Relations Commission (QIRC) for their leave to be “cashed out”. The QIRC may only order the payment on compassionate grounds or on the ground of financial hardship.
What laws protect my long service leave?
An employee must be paid their long service leave at the rate they are being paid immediately before that leave is taken. The employer must not reduce the employee’s usual rate before they commence their long service leave purely to avoid paying a higher rate of long service leave.
If the Queensland Industrial Relations Commission (QIRC) is satisfied that an employer has done this, they may order the employer to pay the employee at their usual rate despite the employee not being paid the usual rate immediately before the commencement of their leave.
What happens if the business I work for is transferred to a new owner?
In the event that an employee is transferred to a new employer at the transfer of a business, that employee’s period of service will remain and will be transferred across as well.
Working out long service leave can be a complex matter and it is something to keep an eye on if you know you have provided more than seven years of continuous service to your employer. To ensure that you are set to gain all of your entitlements, or if you are an employer who wants to understand your rights and obligations around your employees’ long service leave entitlements, you should seek the advice of an employment lawyer.
Cairns Employment Lawyers can provide advice on long service leave entitlements. Book your initial free consultation today.