On 24 March 2020, NSW Parliament passed temporary laws which will create greater flexibility for employers and workers to access long service leave in advance during the ongoing COVID-19 crisis.
The following FAQs will assist employers and workers in managing leave arrangements.
1. My business is affected by COVID-19 trading restrictions and is required to close. Can I direct my workers to take their long service leave entitlement immediately?
The Long Service Leave Act 1955 has been temporarily amended for 6 months to allow an employer to give less than one month’s notice to a worker to take their long service leave entitlement, if the worker agrees.
Prior to the amendment an employer was required to give the worker one month’s notice before the long service leave commencement date.
2. Can long service leave be taken in advance of the leave becoming due to the worker?
Long service leave may be taken in advance where there is agreement to do so between the employer and worker.
The Long Service Leave Act 1955 has now been temporarily amended for 6 months to allow an employer and a worker to agree to taking leave in advance in smaller blocks, such as one or two days a week.
There are several ways this may work in practice, for example by agreement the worker may decide to work three days and take two days long service leave in a particular week.
3. Can I postpone my long service leave because of changed holiday arrangements arising from the COVID-19 Pandemic?
Where the employer and worker agree, the taking of leave may be postponed.
When this occurs, the employer and employee may also agree that the amount paid for the leave to be taken at a later date will be whatever rate of pay the worker is earning at the time of the agreement instead of the rate of pay when the postponed leave is taken.
For example, if an employer and worker agree to postpone the leave for one year and the ordinary rate of pay of a worker at the date of the agreement is $700.00 a week – that is the amount the worker will be paid for the portion of the leave postponed regardless of whether the worker is earning a higher or lower amount of pay at that later time.
4. I have less than ten years’ service but have resigned to care for my children. Am I entitled to pro rata long service leave?
Under some circumstances a worker who has completed five years (but less than ten years) of service may be entitled to a long service pro-rata payment if they resign as a result of illness, incapacity, domestic or other pressing necessity.
While the Long Service Leave Act 1955 does not define “domestic or other pressing necessity”, all the circumstances of the resignation are to be considered in determining whether an entitlement exists. The worker may need to demonstrate that the COVID-19 circumstances leave them no option but to resign and that it is the real or motivating reason for the resignation.