Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)
Background
The entitlement to long service leave for Victorian nurses and midwives employed under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Agreement) is complex. This is because the Agreement is itself complex, and not the only source of an entitlement.
With the exception of enrolled nurses, whose entitlement does not differ on the basis of their employment mode (i.e. casual vs part or full time) the Agreement, previous EBAs and the historical award LSL terms never made provision for LSL for casual employees.
The Victorian Long Service Leave Act (the State Act) did not historically apply to these employees either, as they were excluded because of coverage by a federal award or agreement, even though the instrument contained no entitlement for casual LSL. The State Act was amended in 2005 to extend long service leave entitlements to casual employees.
Changes to the Fair Work Act in 2009 meant that the exclusion of casual employees covered by a federal industrial instrument (i.e. the Agreement and its predecessors) from the Victorian LSL Act no longer applied, subject to the terms of the first EBA made after that date. The next EBA was the tortuous 2011/12 EBA, and no provision was made in that EBA that impacted on this new arrangement.
In a nutshell, it is now clear that from 2009 the State Act applied and continues to apply to casual registered nurses and midwives – and those employees are entitled to long service leave in accordance with the provisions of the State Act
The State Act provides for 13 weeks of paid leave after 15 years, while the Agreement provides for 26 weeks paid leave after 15 years. Therefore casual service accrues LSL at 50% of the quantum that applies to permanent employees. This situation is unchanged from the 2012-2016 Agreement.
The 2016 to 2020 changes
The Agreement LSL clauses continues to have no application to a casual employee, and the State Act applies to those employed on a casual basis, however the Agreement contains new terms that seek to address what happens when a casual registered nurse or midwife ceases to be casual and becomes full or part time. The previous agreement was silent on how this service was to be treated, and there were differing opinions on this.
Note: an employee’s long service leave entitlement is dependent on the employment category of the individual at the time the leave is proposed to be taken or ‘cashed out’ i.e. an employee taking LSL or receiving a payment in lieu of LSL (e.g. as a lump sum payment upon termination of employment).
Consistent with the lower accrual rates for casual employees under the State Act, the Agreement now clearly states that once a casual employee becomes permanent (subject to continuity of employment/service/allowable period of absence) that service is recognised, but the accrual for each year of casual service is half that which applies to permanent employment.
70.5 (a) provided for previous service (including casual service) with an institution or statutory body to be recognised where the preconditions of that clause are met.
70.5 (b) provides that where an employee has a mixture of full- or part-time employment and casual employment with the same employer, then the combined service as a full-time, part-time and casual employee with that employer can be recognised. The parties’ intention is that this clause provides a benefit for full-time and part-time registered nurses or midwives whose prior casual service has not been recognised when calculating their long service leave entitlement.
Table – Long service leave entitlements of employees covered by the Agreement
| Position at the time long service leave is taken or paid in lieu | ||
| full time or part time | casual | |
| Does service count for LSL accrual purposes? | Yes (under Pre-reform Award and Agreement) | Yes (under LSL Act) |
| What is the LSL entitlement? | 6 months after 15 years | 13 weeks after 15 years |
| Is service with a prior employer recognised? | Yes (with eligible employers and subject to eligibility criteria) | No |
| Does converting employment type affect the accrual of LSL or the accrual rate? | Yes – conversion to casual employment will remove the operation of the Pre-reform Award or Nurses Agreement to the employee and the State Act will apply. | Yes – conversion to full time or part time employment means the employee will become subject to the Agreement entitlement.
Clause 70.5(b) enables the inclusion of prior casual service when calculating the aggregate of accrued service at the time the leave is taken. |
(see below for important information for enrolled nurses)
The 2020-2024 changes
This clause has been comprehensively rewritten in this iteration of the EBA. It is necessary complex as there are differences between casual employees, and between registered nurses and midwives on the one hand, and enrolled nurses on the other.
The entitlement for full- and part-time registered nurses, midwives and enrolled nurses is the same, but the entitlement for casual registered nurses and midwives differs to that applying to a casual enrolled nurse.
This is due to historical differences in the Awards that once applied more than two decades ago, that are preserved by the National Employment Standards. Casual enrolled nurses had an ‘award entitlement’ to long service leave, while casual registered nurses and midwives had no entitlement until the last few years, and the entitlement that did arise was under the Victorian Long Service Leave Act.
The Victorian Long Service Leave Act has only half the LSL entitlement of that in the EBA (and forms the basis for the different accrual rates) and does not allow you to transfer your casual service between employers.
Part 1 and Part 4 of the 2020-2024 EBA applies to all nurses and midwives.
Part 2 of the 2020-2024 EBA applies to enrolled nurses only
Part 3 of the 2020-2024 EBA applies to casual registered nurses and midwives only (reflecting the Victorian Long Service Leave Act)
For full- and part-time registered nurses and midwives, and for all enrolled nurses, it is six months’ pay after 15 years of ‘continuous service’. You then accrue an additional two months’ long service leave on completion of each additional five years of continuous service.
For casual registered nurses and midwives, it is 13 weeks after 15 years of ‘continuous service’.
Where your service is a mix of casual and full or part time, the accrual rates for long service leave entitlement will correspond to the relative periods of each type of the service. That is:
- the periods of full-time/part time service will accrue at the rate of 1.733 weeks per year of eligible service; and
- the periods of eligible casual service will accrue at the rate of 0.8667 weeks per year of eligible service.
Table – Long service leave entitlements of employees covered by the Agreement
| Position at the time long service leave is taken or paid in lieu | ||
| full time or part time | casual | |
| Does service count for LSL accrual purposes | Yes (under Pre-reform Award and Agreement) | Yes (under LSL Act and Part 3 of the EBA) |
| What is the LSL entitlement | 6 months after 15 years | 13 weeks after 15 years |
| When is the pro-rata entitlement | From July 2021 at 9 years’ service from 1 July 2022, 8 years; from 1 July 2023, 7 years |
At 7 years of service |
| What is the pro-rata entitlement | Years of service x 1.7 (technically 1/30th of your employment) |
Years of service x .86 (technically 1/60th of your employment) |
| Is service with a prior employers recognised | Yes (with eligible employers and subject to eligibility criteria) | No |
| Does converting employment type affect the accrual of LSL or the accrual rate | Yes – conversion to casual employment will remove the operation of the Pre-reform Award and the Agreement to the employee and the State Act conditions, as reflected in Part 3, will apply. | Yes – conversion to full time or part time employment means the employee will become subject to the Agreement entitlement. Clause 70.5(b) enables the inclusion of prior casual service when calculating the aggregate of accrued service at the time the leave is taken. |
| What breaks continuous service | any period between the engagement with one Employer covered by the EBA and another Employer covered by the EBA provided that is greater than the allowable period of absence | A gap between shifts of greater than the allowable period of absence, or 12 weeks (whichever is greater), unless you had been employed on a regular and systematic basis and had a reasonable expectation of being re-engaged by the same employer; the gap between engagements was not due to the terms of engagement of the casual Employee the employee and employer agreed, before the start of an absence, to treat the employment as continuous despite the absence |
| What counts towards continues service | an absence from work on any form of paid leave up to (and including) 30 June 2020, any unpaid absence from work of not more than fourteen days in any year on account of illness or injury; or on and from 1 November 2018: a period of parental leave, (paid and unpaid) from 1 July 2020 the first 52 weeks of any other type of unpaid leave (such as sick leave) |
on and from 1 November 2018: a period of parental leave, (paid and unpaid) the first 52 weeks of any other type of unpaid leave (such as sick leave) |
| What is the allowable period of absence | Five weeks in addition to the total period of paid annual, long service or personal leave which the employee actually receives on termination or for which they are paid in lieu | |
| What is the allowable period of absence | You must be full time or part at the time, or an enrolled nurse. You are required to be provided with a Certificate of Service when you cease non-casual employment with employer A (even if you stay on their casual bank) Request in writing that payment for accrued long service leave be deferred until after your allowable period of absence has expired You then provide that Certificate of Service to employer B (provided this occurs within the allowable period of absence) Your new employer should notify you and your previous employer that they are now responsible for your service. |
|
Calculating periods of casual and on-casual employment (example)
| Period | Nature of employment or leave | Accrual rate for LSL purposes (weeks per year of service) | Duration of period | Total amount of LSL accrued for period (in weeks) | Comment |
| 1/1/2008 – 31/12/2010 | Casual | 0.8667 (13 weeks after 15 years’ service) | 3 years | 2.6001 (3 years x 0.8667) | – |
| 1/1/2011 – 31/12/2015 | Full time | 1.733 (26 weeks after 15 years’ service | 5 years | 8.665 (5 years x 1.733) | – |
| 1/1/2016 – 31/12/2016 | Unpaid parental leave | NIL | 1 year | NIL | No accrual of LSL during unpaid parental leave before November 2018 |
| 1/1/2017 – 31/12/2020 | Part time | 1.733 | 4 years | 6.932 (4 years x 1.733) | – |
| 1/1/2020 – 31/12/2021 | Unpaid parental leave | 1.733 | 2 years | 3.466 | (if taken after 1 November 2018) |
| Total 21.6631 weeks of accrued LSL |
Q and As
Under the 2020-2024 EBA parental leave taken after 1 November 2018 counts as service – what if I was with a different eligible employer then?
You need to make a written request, accompanied by evidence of your parental leave with your previous employer, to your current employer, seeking that this service be recognised.
You need to do this before 23 August 2022, or within 6 months of returning from parental leave if you are currently on parental leave.
If in doubt contact the ANMF Member Assistance Team via our online inquiry form.
Does clause 70.5(a), which provides for the recognition of service with one or more institutions or statutory bodies, apply to casual employees?
Clause 70.5(a) is only applicable to non-casual registered nurses and midwives, and all enrolled nurses.
For a full or part time registered nurses or full or part time midwives, prior service as a casual employee with your current employer can be counted for the purpose of determining “continuous service”
Are casual registered nurses or casual midwives entitled to long service leave under the Agreement?
Yes, the entitlement to LSL for casual registered nurses or casual midwives is under the Part 3 of the Agreement at .8667 weeks per years of casual service.
Please note that should a casual registered nurses or casual midwife convert to full-time or part-time employment, then clause 70.5(b) of the Agreement will enable the employee to count their prior casual service (at the casual accrual rate) if they are employed full time or part time at the point the long service leave entitlement is accessed.
Can previous casual service with another eligible employer be transferred?
Yes, if you are an enrolled nurse.
Yes, if you are a now full or part time registered nurses/midwife (subject to the allowable period of absence etc)
If I make an application for LSL does my employer have to approve it?
An employer must grant a request to take long service leave as soon as practicable after receiving the request unless the employer has reasonable business grounds for refusing the request.
What if i am working for two employers at the same time?
This is called “concurrent service”. For enrolled nurses, and full-time or part-time registered nurses and midwives, the following examples apply:
Example 1
An employee is employed at the same time by employer A, and employer B.
The employee accrues service towards long service leave at each of employer A and employer B.
If the Award-entitled employee had been employed by employer A for 11 years and employer B for 6 years, the Award-entitled employee can take LSL from employer A, but would need to continue working at employer B until sufficient continuous service had accrued.
If the Award-entitled employee resigned from both employer A and employer B, and went to work for employer C, the Award-entitled employee could:
(a) transfer the 6 years’ service with employer B to employer C; and
(b) have the accrued LSL from the 11 years’ service with employer A paid out in lieu on termination.
Example 2
An employee has worked for employer A for 6 years. On 1 June 2021, the employee commences employment with employer B as an full- or part-time employee, or as an enrolled nurse. To take up this opportunity, the employee ceases permanent employment with employer A. However, the employee commences a casual employment relationship with employer A within 12 weeks after resigning from their permanent position with employer A.
The employee:
(a) could transfer the 6 years’ service with employer A to employer B, and would be eligible to take LSL with employer B once sufficient continuous service had accrued (taking into account the transferred service); and
(b) could take LSL on a pro rata basis with employer A after sufficient continuous service had accrued, save that no entitlement would arise in respect of the prior 6 years’ service that has been transferred to employer B.
What if I resign my permanent job, transfer to permanent employment at another public health service, but stay on as a casual at my original employer?
When you convert from permanent to casual, this is treated as a termination of your employment. You can transfer your permanent service to another eligible employer and stay on your original employer’s bank.
Can I work for another employer while on long service leave?
It is an offence under s.35 of the Victorian LSL Act to work during long service leave. However, this only relates to hours that you would have been at work were you not on LSL. For example, if you don’t work weekends in your normal role, you can work weekends elsewhere while on LSL.
It is also an offence for an employer to knowingly employ another person in relation to the hours during which that other person is taking long service leave.
However, there are doubts about whether the LSL Act even applies to employees whose LSL entitlement is in an enterprise agreement, like those working in the public health sector.