Absent on long service: does annual leave accrue?

Absent on long service: does annual leave accrue?
By Paul Munro on 8 August 2017 Does annual leave accrue while someone is absent on long service leave?

This questions was recently sent to our Ask an Expert service.

Q An employee is taking two months’ long service leave at the end of the year. It includes the Christmas-New Year period as well as most of his accrued annual leave. He has also requested two weeks’ annual leave from the beginning of March 2018.

The employee will not have sufficient accrual of annual leave to allow the request in March as our payroll department is not sure whether  he continues to accrue annual leave and personal/carer’s leave during his long service leave.

Does the employee accrue annual leave and perosnal/carer's leave when on long service leave? And is long service leave extended by any public holidays that occur over the Christmas-New Year period?

The employee works in our Melbourne office.

A Under the Fair Work Act, an employee will continue to accrue annual leave and personal/carer’s leave when absent on a period of long service leave.

Fair Work Act

The Fair Work Act (s22) provides a specific definition of “service” for the purposes of the Act. It is defined to mean a period during which an employee is employed by the employer, but does not include any period (an excluded period) that does not count as service.

Periods that do not count as service (excluded periods) are:
  • any period of unauthorised leave, for example, when an employee has abandoned his or her employment, is engaging in industrial action or is otherwise absent from work for a period contrary to a direction made by an employer; or
  • any period of unpaid leave, such as unpaid parental leave or unpaid carer’s leave, or unpaid authorised absence, e.g. leave without pay granted by the employer.
An employee absent on long service leave is still employed by an employer for the purposes of the Fair Work Act.

Unpaid leave that is service

Unpaid periods of absence that do count as service include a period of stand down and an absence under community service leave. An excluded period does not break an employee’s continuity of service but does not count towards the length of the employee’s continuous service.

Public holidays – long service leave

Whether a period of long service leave is extended by a public holiday is regulated by the relevant state or territory long service leave legislation. In this case, the Long Service Leave Act 1992 [Vic] extends the period of long service leave by one day for each public holiday that falls during the period of leave.

Other jurisdictions

The following is a summary of the state and territory long service leave legislation with respect to whether a public holiday extends a period of long service leave:

Australian Capital Territory – the Long Service Leave Act 1976 [ACT] provides that a public holiday EXTENDS the period by one day for each public holiday.
New South Wales – the Long Service Leave Act 1955 [ NSW] provides that a public holiday EXTENDS the period of leave by one day for each public holiday.
Northern Territory – under the Long Service Leave Act [NT] a period of long service leave is NOT extended by a public holiday during the leave period.
Queensland – the Industrial Relations Act 1999 [Qld] provides that a public holiday EXTENDS the period of long service leave for each public holiday.
South Australia – under the Long Service Leave Act 1987 [SA] a period of long service leave is inclusive of public holidays, therefore the period of leave is NOT extended by a public holiday during the leave period.
Tasmania – under the Long Service Leave Act 1976 [Tas] public holidays EXTEND the period of long service leave.
Western Australia – under the Long Service Leave Act 1958 [WA] where a public holiday falls during a period of long service leave, and the employee would otherwise be entitled to a paid day off work, the period of long service leave is INCREASED by one day.

The bottom line: Under the Fair Work Act an employee continues to accrue annual leave and personal/carer’s leave during an absence on long service leave.
 

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