Changes to the public sector general EBA in 2016, and the 2018 amendments to Victorian long service leave laws effective from 1 November, have generated significant improvements for members.
Below is a summary of the general entitlement to long service leave for Victorian nurses, midwives and carers:
|Permanent registered nurse or midwife in aged care, private hospital, public sector||1.733 weeks per year of service||26 weeks at 15 years, or by agreement or on termination, pro-rata at 10 years|
|Casual registered nurse or midwife in aged care, private hospital, public sector||0.8667 weeks per year of service||13 weeks at 15 years, or by agreement or on termination pro-rata at 7 years|
|Enrolled nurses and carers in aged care, private hospital, public sector||1.733 weeks per year of service||26 weeks at 15 years, or by agreement or on termination, pro-rata at 10 years|
|Permanent and casual nurses in medical clinics||0.8667 weeks per year of service|
|Permanent and casual nurses in local government||1/10th of 3 months per year of service||3 months at 10 years of service, or by agreement or on termination, pro-rata at 7 years|
Long service leave – what has changed?
The entitlement to long service leave (LSL) for Victorian nurses, midwives and carers can differ significantly dependent on whether you are employed as a casual or a permanent employee, your employer or your employment classification. Changes to the public sector general EBA in 2016, and the 2018 amendments to Victorian long service leave laws, have generated significant improvements for members.
Am I entitled to LSL at seven years’ service?
For most members, no. The 2018 changes to the Victorian Long Service Leave Act have seen a flurry of inquiries both to the ANMF, and to those representing employers in the health sector.
The answer is yes:
- if your entitlement to LSL is derived from the Victorian Long Service Leave Act, either because you are a casual registered nurse or midwife (who historically had no LSL entitlement, unlike casual enrolled nurses and carers); or
- if your LSL entitlement is from your EBA (not the National Employment Standards)
The answer is no:
- if your LSL entitlement is derived from the National Employment Standards (below), these exclude the State Long Service Leave Act. This is the case for part time and full time registered nurses, enrolled nurses, carers and midwives in the public sector.
A careful review of the history of your EBA would need to be undertaken for other workplaces. A precis of some of these is provided later in this article.
Does Parental Leave count as service?
For those whose entitlement derives from the State Long Service Leave Act, the first 12 months of parental leave counts as service.
If your LSL entitlement is derived from the National Employment Standards, the answer is no.
ANMF will be seeking to address these variations in upcoming EBA negotiations.
National Employment Standards
The NES applies to all employees in Australia, regardless of any state law, contract or enterprise agreement.
The general rule is found in the National Employment Standards in the Fair Work Act. The NES has been in place since 2009, and in respect to long service leave is an ‘interim’ standard. Unlike the other NES provisions which apply equal minimum standards to all employees, the NES for LSL relies on whether the employee would have been historically covered by an award if they were in their current employment and that award would have entitled them to LSL. If so, that is the interim NES LSL entitlement.
For Victorian registered nurses, enrolled nurses and midwives, the award that is most likely to apply is the Nurses (Victorian Health Services) Award 2000, which contained LSL at 26 weeks for 15 years’ service. This Award contained no LSL entitlement for casual employees, except casual enrolled nurses.
Casual enrolled nurses have the same 26 weeks for 15 years’ service entitlement as full and part time registered nurses and midwives, preserved as an NES standard.
There are exceptions to this such as nurses or midwives employed in a medical clinic or a private pathology service, who may have been covered by a different award, where the preserved NES entitlement may be 13 weeks after 15 years (the same as the Victorian legislation).
For carers, the relevant award is the Health and Allied Services – Private Sector – Victoria Consolidated – Award 1998. The LSL entitlement preserved by the NES is again 26 weeks for 15 years’ service, whether casual or not, but contains some very dated language regarding workplaces. It refers to work ‘in or about a hospital, benevolent asylum, convalescent home, TB sanatorium and the treatment of the mentally afflicted’.
While the entitlement is 26 weeks after 15 years, it can be taken as 17.333 weeks after 10 years (by agreement with your employer) or on resignation or termination (unless the termination was for serious and wilful misconduct).
No enterprise agreement or other instrument can undermine an NES entitlement.
Long Service Leave Act (Victoria) 2018
The Long Service Leave Act 2018 applies as a default standard in both the public or private sectors in Victoria in the absence of a NES entitlement to LSL.
Who does the Act apply to?
This state legislation applies to nurses, midwives and carers:
- who do not have an NES LSL entitlement (or entitlement via another Victorian Act, such as the Local Government Act for MCH nurses employed by councils). It provides for 13 weeks LSL after 15 years’ service.
- whose LSL entitlement is from your EBA (not the National Employment Standards).
The Act does not apply if you have an NES entitlement to LSL, even if that entitlement is less than that provided in the Act.
Amendments to the Long Service Leave Act from 1 November 2018
Several Andrews Government amendments to the Act took effect from 1 November 2018. These include:
- Allowing employees to take LSL after seven years
The 2018 LSL Act provides employees with a pro rata long service leave entitlement after seven years of continuous service, while previously this was only available on termination of employment at seven years.
- Allowing employees to take LSL one day at a time
Previously, long service leave could only be taken in one period, or by agreement in two or three separate periods. The amended Act allows employees to take long service leave one day at a time, by agreement. This is aimed at providing employees with greater flexibility, particularly for those transitioning to retirement.
- Treatment of parental leave
Under the old LSL Act, an employee who took more than 12 months parental leave broke their continuity of service and lost any accrued long service leave entitlements. A period of less than 12 months parental leave did not break continuity of service, but you did not accrue long service leave while on unpaid parental leave.
The new Act provides that service is ‘continuous’ despite taking paid or unpaid parental leave. It provides that any period of paid parental leave and up to 12 months of unpaid parental leave (or other forms of unpaid leave) will count as service and long service leave will accrue during this period.
If you take paid or unpaid parental leave beyond 12 months this will not break continuity of service but will not count as service.
- Changes to working hours
Under the old LSL Act, where an employee changed their hours of work during the 12 months immediately before taking long service leave, their normal weekly hours of work for calculating leave was averaged over the previous 12 months or five years, whichever average number was the greater.
The new laws provide a third option – the hours worked are averaged over the full period of continuous employment, and the employee will be entitled to the greater of the three – 12 months, five years or the whole of the employment.
The above averaging arrangement will apply if the hours of work are changed at least once in the 104 weeks prior to the leave being taken.
Read more detailed information.
The 2016 changes (public sector – non-mental health)
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 (the 2016 agreement) is complex. Please note these provisions are not replicated in the public sector mental health enterprise agreement as not all negotiating parties supported them.
The 2016 agreement LSL clauses continue to have no application to casual employees, and the Victorian LSL Act applies to those employed on a casual basis. A casual enrolled nurse continues to have an NES preserved entitlement.
However, the 2016 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.
Note: An employee’s long service leave entitlement is dependent on the employment category (casual or otherwise) of the individual at the time the leave is proposed to be taken.
Consistent with the lesser accrual rates for casual employees under the state Act, the 2016 agreement now clearly states that once a casual employee becomes permanent (subject to continuity of employment/service/allowable period of absence) previous casual service is recognised, but the accrual for each year of casual service is half the accrual applying to permanent employment.
Service with another employer covered by the agreement (including casual service prior to 2016) counts as service with your current employer.
Table – Long service leave entitlements of employees covered by the 2016 agreement
|Position at the time long service leave is taken or paid in lieu|
|Full time or part time employees and casual enrolled nurses||Casual|
|Does service count for LSL accrual purposes?||Yes (under NES and 2016 enterprise 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 public-sector 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 by registered nurses and midwives will remove the operation of the NES and the 2016 agreement LSL benefits, and the state Act will apply.||Yes – conversion to full time or part time employment means the employee will become subject to the 2016 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.
Other enterprise agreements
The Victorian Branch of the ANMF negotiates several hundred enterprise agreements applying to nurses, midwives and carers. Each enterprise agreement must be carefully checked to determine the impact on employee LSL entitlements with that employer.
The Fair Work Act 2009 changed the rules around the application of the Victorian LSL Act, subject to the first enterprise agreement made after 2009. Healthscope, for example, included LSL for all casual employees in the first such EBA which meant that the Victorian Act (including the changes above) do not necessarily apply to employees covered by that EBA.
It is now clear that from 2009 the Victorian LSL 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. This is because they have no NES entitlement to LSL. So may carers, again dependent on their enterprise agreement terms.
About 20,000 nurses in Victoria are covered by one of seven enterprise agreements: Cabrini, Epworth, Healthscope, Healthecare, Ramsay, St John of God or St Vincent’s Private. You will need to assess the provisions of each agreement to determine what applies.
The 2018 Victorian LSL Act amendments providing access at seven years, and averaging, will impact these agreement LSL provisions or registered nurses and midwives, because an agreement cannot exclude state Act LSL benefits (unlike the NES).
|Is a casual registered nurse/midwife entitled to LSL in the enterprise agreement?||Accrual rate (weeks per year of service) for casual RNs (note that all casual and permanent ENs and permanent RNs accrue at 1.7333 weeks per year of service)|
|Cabrini||Yes||0.8666 weeks per year of service|
|Epworth||No – excluded by clause 18.3.4 from the EA clause, so covered by state LSL Act||0.8667 weeks per year of service under the State LSL Act|
|Healthecare||No – excluded so it is covered by the state LSL Act||0.8667 weeks per year of service under the State LSL Act|
|Healthscope||Yes||0.8667 weeks per year of service (13 weeks after 15 years) but service only counts from 1 January 2008|
|St John of God||No – excluded so it is covered by the state LSL Act||0.8667 weeks per year of service under the State LSL Act|
|St Vincents Private||No – excluded from EA and specific acknowledgement that a casual RN is covered by the state LSL Act||0.8667 weeks per year of service under the State LSL Act|
The key rule is to read your enterprise agreement carefully, especially the ‘Types of Employment’ clause (which will usually tell you whether a casual employee is excluded from the LSL provision) and the LSL clause, and get ANMF advice.
Private aged care
The same applies in private aged care as in private acute hospitals. You need to read the clauses in your enterprise agreement carefully and seek advice. However, the same general standard applies, i.e. the overwhelming majority of nurses and carers receive 26 weeks LSL after 15 years continuous service, accessible after 10 years of service on a pro rata basis.
Most recently negotiated private aged care enterprise agreements provide for LSL for casual registered nurses, with an accrual rate of 0.8667 weeks LSL per year of service (as against 1.7333 weeks per year of service for casual enrolled nurses, casual carers and permanent RNs, ENs and carers).
Some agreements still provide that a casual RN has no entitlement to LSL. This means that for those casual RNs the Victorian LSL Act, including the recent improvements, will apply.
As always, it is important to get advice about your circumstances before changing employers or employment arrangements. Contact the ANMF via members assistance form.