State and territory long service leave legislation effectively part of NES

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State and territory long service leave legislation effectively part of NES

Fair Work Australia has blocked an attempt to insert cashing-out provisions in a federal agreement, on the basis that that the NSW Long Service Leave Act 1955 is, effectively, incorporated as a relevantly-applicable National Employment Standard.

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Fair Work Australia has blocked an attempt to insert cashing-out provisions in a federal agreement on the basis that that the NSW Long Service Leave Act 1955 is, effectively, incorporated as a relevantly-applicable National Employment Standard.

 
A district rugby league club, located in Sydney’s west, lodged an agreement for approval — providing for most of its 112 employees the right to cash out up to four weeks of long service leave each year after 10 years service.
 
Cashing-out prohibited
 
Commissioner McKenna ruled against the application stating:
‘The National Employment Standards do not specify uniform, “national” employment standards in relation to long service leave because, as I understand it, agreement could not be reached at an inter-Governmental level, given the disparate approaches to long service leave conditions in the different jurisdictions.
 
The long service leave arrangements in the Fair Work Act are interim, pending the development a harmonised standard, e.g., see Explanatory Memorandum at item 76. To the extent that the National Employment Standards deal with long service leave, they seem to be designed to preserve the status quo concerning long service leave entitlements that are dealt with by the instruments specified in Ch 2, Pt 2-2, Div 9; and as the legislative note to s.113(1) reads:
“This Act does not exclude State and Territory laws that deal with long service leave, except in relation to employees who are entitled to long service leave under this Division (see paragraph 27(2)(g)), and except as provided in subsection 113A(3).”
Thus, the National Employment Standards secure long service leave arrangements as they stood in relevant industrial instruments. If an employee did not have an entitlement to long service leave under a relevant industrial instrument, the entitlement to long service leave will generally arise under State and Territory legislation.
 
Moreover, the terms of an enterprise agreement do not have primacy over State and Territory long service leave laws. In conjunction with other provisions of the Fair Work Act, the effect of s.113 seems to be designed to prevent long service leave from being traded-away in enterprise agreements.
 
This much was indicated in the Discussion Paper: National Employments Standards Exposure Draft released in 2008 by the Department of Education, Employment and Workplace Relations …:
“... The proposed long service leave NES ensures that long service leave entitlements in pre-modernised awards and NAPSAs cannot be bargained away. The intention is that workplace agreements will not be able to override state and territory long service leave laws.”’
[Note: There are certain long service leave cashing out rights in Queenslane, South Australia, Western Australia and Tasmania. See: Long service leave — all states and territories]
 
 
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