An employee has requested two weeks' annual leave commencing in March next year. However, they will be taking two months' long service leave at the end of this year, which includes the Christmas and New Year period, and most of their accrued annual leave. The payroll department is unsure whether the employee will continue to accrue annual and personal/carer's leave during their long service leave, and have advised that the employee may not have sufficient leave to take their requested leave in March.

Question: does the employee accrue annual leave and personal/carer's leave while on long service leave? And is long service leave extended by any public holidays that occur over the Christmas-New Year period?

 

Accruing annual leave during long service leave

Under the Fair Work Act, an employee will continue to accrue annual leave and personal/carer’s leave when absent on a period of long service leave.

The Fair Work Act (s22) provides a specific definition of “service” for the Act. It is defined as a period during which an employee is employed by the employer but does not include any period (an excluded period) that does not count as service.

Periods that do not count as service (excluded periods) are:

  • Any period of unauthorised leave, for example, when an employee has abandoned their employment, is engaging in industrial action or is otherwise absent from work for a period contrary to a direction made by an employer or
  • Any period of unpaid leave, such as unpaid parental leave or unpaid carer’s leave, or unpaid authorised absence, e.g. leave without pay granted by the employer.

An employee absent on long service leave is still employed by an employer for the Fair Work Act.

 

Is unpaid leave counted as service

Unpaid periods of absence that do count as service include a period of stand down and an absence under community service leave. An excluded period does not break an employee’s continuity of service but does not count towards the length of the employee’s continuous service.

 

Public holidays and long service leave

Whether a period of long service leave is extended by a public holiday is regulated by the relevant state or territory long service leave legislation.

Victoria – the Long Service Leave Act 2018 [Vic] extends the period of long service leave by one day for each public holiday that falls during the period of leave.

Australian Capital Territory – the Long Service Leave Act 1976 [ACT] provides that a public holiday EXTENDS the period by one day for each public holiday.

New South Wales – the Long Service Leave Act 1955 [ New South Wales] provides that a public holiday EXTENDS the leave period by one day for each public holiday.

Northern Territory – under the Long Service Leave Act 1981 [NT], a period of long service leave is NOT extended by a public holiday during the leave period.

Queensland – the Industrial Relations Act 2016 [Qld] provides that a public holiday EXTENDS the period of long service leave for each public holiday.

South Australia – under the Long Service Leave Act 1987 [SA], a period of long service leave is inclusive of public holidays. Therefore the period of leave is NOT extended by a public holiday during the leave period.

Tasmania – under the Long Service Leave Act 1976 [Tas], public holidays EXTEND the period of long service leave.

Western Australia – under the Long Service Leave Act 1958 [Western Australia], where a public holiday falls during a period of long service leave, and the employee would otherwise be entitled to a paid day off work, the period of long service leave is INCREASED by one day.

The bottom line: Under the Fair Work Act, an employee continues to accrue annual leave and personal/carer’s leave during an absence on long service leave.