While employee long service leave can interrupt business operations, it is a legal right of most employees, owed by employers. Employers may encounter difficulty in determining when they are able to validly deny long service leave.
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Long Service Leave
Your business may have employees who have been working for you for a long period of time. Subject to the National Employment Standard (NES), long service leave is paid leave an employee receives after working for the same employer for a long period of time. The law sets out how long an employee must work to accrue long service leave and how much long service leave they accrue. However, this differs based on the State or Territory in which you work.
Long Service Leave According to State
In New South Wales (NSW) long service leave applies to most employees who work either part-time, full-time or on a casual basis. After 10 years of work for the same employer you are entitled to two months paid leave. Employees who suffer special circumstances including illness, incapacity or domestic or other pressing necessities also have a pro-rata entitlement after five years. Legislative requirements are similar in Victoria, however, the main difference is that the employee needs to work for the same employer for a minimum of 7 years in order to receive the entitlement.
Valid Circumstances for Refusal of Long Service Leave
Employers are able to refuse long service leave in limited circumstances. In most Australian States, where an employee entitled to long service leave does not agree to delay their long service leave, employers must enable the use of the leave as soon as practicable. This means an employer is only able to refuse long service leave when it is reasonably impractical to grant it.
Other Relevant Considerations
In most Australian States employers are not allowed to pay out the long service leave rights of their employees. It is important to note the potential effect COVID-19 has had on long service leave, with special legislative provisions being included as a result. For example, if during the prescribed period an employee is stood down without pay by an employer due to the COVID-19 pandemic, the employees service, despite the break, is taken to be continuous service and the worker continues to accrue long service leave while stood down.
Key Takeaway
Subject to the NES, employees are eligible for long service leave after working for the same employer for a long period of time. The relevant law in each State sets out how long an employee must work to accrue long service leave and how much long service leave they accrue. It is difficult for employers to validly deny long service leave entitlements, however it can be done where it is reasonably impractical to grant it.
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Adam works with our content team while he completes his law degree at UTS. He is interested in corporate law, banking and finance law and discrimination law.
Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
