Edge Legal
One of the options to respond to the impact of COVID-19 on work availability is for employees to utilise accrued leave entitlements. This is a good option especially where it is done by agreement. This begs the question what happens if there is no agreement? With long service leave the answer is found in each of the State and Territories long service leave legislation. In general terms, the answer is in:
a) Tasmania -No;
b) WA -probably yes and immediately. This is because the default position is it is to be taken as soon as reasonably practicable after it accrues unless agreed to be postponed. This rarely occurs in practice as LSL is 'saved up' rather than being a 'reward' on completion. It does provide an opportunity to notify employees that there is no agreement and it is now reasonably practicable for it to be taken. Disputes can be lodged and resolved and in the current climate it is likely that there will be some sympathy for the employer's position; and
c) NSW –Yes with a month’s notice, unless the parties agree to less notice or there has already been agreement to postpone in which case the parties can reach further agreement;
d)The other States and Territories -Yes on the giving of notice which roughly speaking ranges from 2-3 months' notice.
Changes to Long Service Leave Legislation in response to COVID-19
On 24 March the NSW Long Service leave Act was amended.
Previously, employers and employees could agree that an employee would take a period of at least a month of long service leave before it became due.
Employees can now take less than a month before it becomes due by agreement with the employer. This will apply for the next 6 months.
WA already has a provision to allow employees to take long service leave in advance of the entitlement becoming due.
It is likely that other states may also implement changes for more flexibility with long service leave and we will watch this space
