Did employee take the wrong leave?

Did employee take the wrong leave?

By Paul Munro on 31 October 2018
If an employee took long service leave and annual leave to care for a sick relative, was she actually entitled to paid carer's leave?

This question was recently sent to our Ask an Expert service.
 
Q An employee in our Sydney office was granted one month’s long service leave and will commence leave in late November. The employee will then be absent on annual leave at the completion of their long service leave. As this absence includes the Christmas-New Year period, there are also a number of public holidays that fall during the absence.

The company has only recently been informed the reason the employee took long service leave and annual leave was to provide care to a seriously ill parent. It is the company’s view that she is also entitled to paid carer’s leave. As the long service leave and annual leave has already been granted, what is the effect of paid carer’s leave on the employee’s long service leave and annual leave, and do the four public holidays which fall during her absence also affect the period of the absence?
 
A This absence would be affected by the relevant state or territory long service leave legislation, as well as the minimum entitlements under the National Employment Standards which relate to annual leave, personal/carer’s leave and public holidays.

Long service leave


The first period of the absence comprises long service leave. In this case, the Long Service Leave Act 1955 [NSW] is the applicable legislation which does not extend the period of leave if an employee is ill or required to provide care during a period of leave. Conversely, any public holiday that falls during a period of long service leave will extend the period of leave by one working day for each holiday.

Annual leave v personal/carer’s leave


The Fair Work Act (s89) provides a hierarchy when two or more periods of paid leave coincide. Generally, a public holiday applies instead of a day of annual leave or personal/carer’s leave. In the above circumstance, the employee’s absence is treated in the following manner:
  • each public holiday takes precedence over every other form of leave (annual leave or carer’s leave), including an extension of the period of long service leave (under the NSW legislation)
  • while not obliged to do so, the employer and employee can agree to postpone the remaining period of long service leave and instead provide paid carer’s leave, otherwise the employee continues to be absent on long service leave and no carer’s leave applies during that part of the absence which is long service leave 
  • no annual leave when the employee is entitled to paid carer’s leave – annual leave is to be re-credited to employee’s annual leave balance.

Annual leave and other leave


The Fair Work Act provides a hierarchy when two or more periods of paid leave coincide.  If during a period of annual leave a public holiday or part-holiday falls, or there is a period where the employee is eligible for personal/carer’s leave (including compassionate leave), or a period of community service leave, the employee is taken not to be on annual leave for each day eligible for the other leave or public holiday. 

The period of annual leave is not extended by any such absence but the employee is to be re-credited annual leave for each day of eligible absence.

Long service leave and public holidays


The following is a summary of the remaining state and territory long service leave legislation with respect to a public holiday falling within a period of long service leave:
 
  • Australian Capital Territory – under the Long Service Leave Act 1976 [ACT] a public holiday that falls during a period of long service leave extends the period of  leave by one day for each such public holiday.
  • Northern Territory – under the Long Service Leave Act [NT] a period of long service leave is NOT extended by the occurrence of a public holiday during the leave period.
  • 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 the occurrence of a public holiday during the leave period.
  • Tasmania – under the Long Service Leave Act 1976 [Tas] public holidays ARE added on to the period of long service leave.
  • Victoria – under the Long Service Leave Act 1992 [Vic] a period of long service leave is extended by one day for each public holiday that falls during the 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.

Applicable award-derived long service leave terms


Whether long service leave is extended by the occurrence of a public holiday will depend on the specific award terms. For example, the Metal, Engineering & Associated Industries 1998 – Part IV Long Service Leave provides the period of long service leave is exclusive of annual leave but is inclusive of all other holidays or days off.

The bottom line: If an employee takes annual leave which coincides with any other leave under the National Employment Standards (other than unpaid parental leave), or a period of community service leave, the employee is taken not to be on annual leave for the period of that other leave. In the case of long service leave reference should be made to the relevant legislation to determine whether a public holiday extends the period of the leave.
 

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