Paul Gilbert, ANMF (Vic Branch) Assistant Secretary
When speaking with members, our staff often hear myths – or misunderstandings – about entitlements in their enterprise agreement. Branch Assistant Secretary Paul Gilbert sets the record straight on some of the most common myths. This month, he looks at myths about personal leave and long service leave.
The public sector agreement sets the benchmark for when we negotiate private employer agreements so the answers below may apply in private sector workplaces, but you will need to check your EBA to be sure. You can do so via the member portal.
Job Reps – keep an eye out in the new year for the Reading Your Agreement course, which is designed to help you better understand the structure, content and legal status of EBAs, as well as some of the basic principles for reading and applying EBA provisions.
Myths about personal leave and long service leave
When I quit, my personal leave gets paid out, doesn’t it?
No. Personal Leave is something that accrues and what you don’t utilise sits in your personal leave bank. If you quit, or become casual, your personal leave accrual disappears.
Interestingly, if you later return to full- or part-time employment with the same employer, your personal leave accrual should reactivate.
You can transfer up to 180 days of personal leave from one public sector employer to another, by following the same steps as for long service leave, providing you are moving to a full- or part-time position.
I can work for another employer while I’m on long service leave, can’t I?
Yes… No … Maybe.
It is an offence under the Long Service Leave Act (Vic) to work while on long service leave or to employ someone who is on long service leave.
But for our industry, where most employees are part time, there is an interesting situation in that the offence only relates to hours you would have been at work had you not been on long service leave.
So, imagine if you had two part-time jobs. You could take long service leave from one, and continue working at the other. That is not an offence. Similarly, it is not an offence to work on a Tuesday during long service leave, if you would not have usually worked on a Tuesday anyway.
Then there is the maybe. It is far from clear that the Long Service Leave Act (Vic) applies to you if your long service leave entitlement is contained in an EBA. Even if it does, the Act only provides for 13 weeks of long service leave after 15 years, and most members accrue 26 weeks of long service leave after 15 years. So which part of the long service leave is Act related?
In 30 years at the Branch, I have never heard of a member, or employer, in our industry getting into trouble for working while on long service leave, or engaging someone to work while on long service leave.
My employer can’t refuse my long service leave request dates, can they?
Long service leave is generally contained in your EBA and processes for requests and approvals depend on the EBA provisions.
The most common provisions are very old and contemplate your employer simply unilaterally putting you on long service leave within six months from the date of the entitlement, unless a mutually agreeable alternate date has been made. It is rare, if not unheard of, for this to actually happen.
In practice, an application for long service leave would only be refused where there are reasonable grounds for doing so. While it is common to assert difficulties in finding roster coverage as a grounds for refusal, this needs to be balanced against the fact that if you resigned, they would need to do so anyway. Provided enough notice is given (the more the better) we would expect applications to be approved.
Disputes about the timing of long service leave can be resolved via an application to the Fair Work Commission, if necessary.
Isn’t my long service leave averaged over the last 12 months of hours worked?
No.
No matter the number of hours you work, long service leave is calculated in weeks. For most members, that is about 1.733 weeks per year of service.
The tricky part is the number of hours pay, per week, that you are entitled to when on long service leave.
Typically, this is the number of hours per week that you normally work at the time you take the leave. The number of hours that you worked per week accruing the leave is not relevant; only your normal hours at the time of taking the leave are considered.
Normal is not defined, but situations like being on reduced hours because of a work injury is not considered your ‘normal hours’.
The rules are different for casual employees, where a complex averaging system applies.
