Q. An employee employed in our Sydney office was granted one month’s long service leave and will commence leave in late November. The employee will then be absent on annual leave at the completion of their long service leave. As this absence includes the Christmas-New Year period, there are also a number of public holidays that fall during the absence. 

The company has only recently been informed the reason the employee took long service leave and annual leave is to provide care to a seriously ill parent. It is the company’s view that she is also entitled to paid carer’s leave. 

As the long service leave and annual leave has already been granted, what is the effect of paid carer’s leave on the employee’s long service leave and annual leave, and do the four public holidays which fall during her absence also affect the period of the absence? 
 

A. This absence would be affected by the relevant state or territory long service leave legislation, as well as the minimum entitlements under the National Employment Standards which relate to annual leave, personal/carer’s leave and public holidays. 

 

Long service leave 

The first part of the employee's absence consists of long service leave.For an employee in New South Wales, long service leave is generally governed by the Long Service Leave Act 1955 (NSW). The legislation does not contain an equivalent provision to section 89 of the Fair Work Act that allows personal/carer's leave to automatically replace long service leave. Accordingly, if an employee becomes ill or has caring responsibilities during an approved period of long service leave, the leave does not automatically convert to personal/carer's leave.

While an employer and employee may agree to vary, postpone or reschedule long service leave in appropriate circumstances, there is generally no statutory entitlement requiring long service leave to be re-credited because the employee is caring for a family member during the leave period.

 

Public holidays during long service leave

The treatment of public holidays during long service leave is determined by the applicable long service leave legislation rather than the Fair Work Act. In New South Wales, public holidays that occur during a period of long service leave generally do not count as long service leave and may extend the leave period accordingly. Employers should confirm the current position against NSW Industrial Relations guidance and the relevant legislative provisions

 

Annual leave and  personal/carer’s leave 

The position is different once the employee commences annual leave.Section 89 of the Fair Work Act provides that if an employee becomes entitled to another form of leave under the National Employment Standards while taking annual leave, the employee is taken not to be on annual leave for that period. This includes personal/carer's leave.

Accordingly, where an employee:

  • is on annual leave;

  • becomes entitled to paid personal/carer's leave because they are caring for an immediate family member; and

  • complies with the required notice and evidence requirements,

The annual leave is replaced by personal/carer's leave for the relevant period and the annual leave balance should be re-credited.

In this case, a seriously ill parent falls within the definition of an immediate family member and may therefore qualify for personal/carer's leave, subject to the employee meeting the statutory requirements
 

Public holidays during annual leave

Public holidays are treated separately. Under section 89 of the Fair Work Act, if a public holiday falls during a period of annual leave, the employee is taken not to be on annual leave on that day. The public holiday is paid as a public holiday rather than deducted from the employee's annual leave balance. 

As a result:

  • public holidays are not counted as annual leave;

  • annual leave should be re-credited for those public holiday days; and

  • the employee receives their applicable public holiday entitlement. 

 

Which entitlement applies?

Where more than one entitlement potentially applies, the following principles generally apply:

  1. During long service leave, the employee remains on long service leave unless the applicable legislation or a specific agreement between the parties provides otherwise.

  2. During annual leave, an entitlement to personal/carer's leave takes precedence and the annual leave is re-credited. 

  3. Public holidays during annual leave take precedence over annual leave and are not deducted from the employee's annual leave balance. 

  4. Public holidays during long service leave are governed by the applicable long service leave legislation rather than the Fair Work Act.

 

Bottom line

The employee's approved long service leave does not automatically convert to personal/carer's leave merely because the leave is being used to care for a seriously ill parent. However, once the employee commences annual leave, any period for which they are entitled to paid personal/carer's leave will generally replace annual leave and the annual leave balance should be re-credited. 

Public holidays occurring during annual leave are also not counted as annual leave. The treatment of public holidays during long service leave depends on the applicable long service leave legislation, which in this case is the Long Service Leave Act 1955 (NSW).