Can you force employees to take long service leave?

Can you force employees to take long service leave?
By Paul Munro on 12 September 2017 Can we direct employees to use their long service service during a downturn in trade?

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

Q Our company is suffering from a downturn in trade, although business is expected to pick up again later in the year. We have two long-serving employees who are both eligible to take long service leave.

The company explained its predicament to both employees and advised them to apply for leave. One employee is unwilling to take leave as he is saving it for an overseas trip next year.

Can we direct these employees to take long service leave or can it only be taken by mutual agreement?

They are located in New South Wales.

A This will depend on the relevant state or territory long service leave legislation. Generally, long service leave should be taken as soon as practicable, subject to the needs of the business. Each state and territory law obliges an employer to give an employee a specified period of notice to take long service leave.

Under the Long Service Leave Act 1955 [NSW], leave is to be taken as soon as practicable having regard to the needs of an employer’s business. An employer must give at least one month’s notice when directing an employee to take leave.

Other jurisdictions

The following arrangements apply to the taking of long service leave under the relevant state or territory legislation:

Australian Capital Territory – an employer must, at least 60 days before the date from which long service leave is to be taken, give an employee written notice of the date, unless otherwise agreed to by the parties.

Northern Territory – usually the time for using leave is by mutual agreement between an employee and an employer, however an employer can require an employee to take long service leave entitlement. However, it must give an employee two months’ notice.

Queensland – where agreement cannot be reached, an employer can, with at least three months’ notice, require an employee to take at least four weeks' long service leave.

South Australia – an employer can give an employee 60 days’ notice to take the 13 weeks' leave or other accrued entitlements.

Tasmania – when an employee becomes entitled to long service leave, that leave shall be granted by an employer as soon as practicable after an employee becomes entitled to it, having regard to the needs of the employer's business.

Victoria – long service leave is to be taken as soon as reasonably practical after the entitlement occurs, taking into account the needs of a business. In the absence of an agreement, an employer may direct an employee to take long service leave by giving an employee at least three months’ written notice.

Western Australia – long service leave is to be given and taken as soon as reasonably possible after it falls due and may be taken in one continuous period or in separate periods of not less than one week. Where an employee has been entitled to long service leave for more than 12 months the employee can give an employer two weeks’ notice of his or her intention to take leave. An employer must not refuse the request.

The bottom line: The amount of notice to be given by an employer to send an employee on a period of long service leave will depend on the relevant state or territory long service leave legislation.
 

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