Long Service Leave Act 2018

to make provision with respect to the long service leave entitlements of certain employees, including public and private sector employees and police officers; and

to repeal the Long Service Leave Act 1992; and

to make consequential amendments to other Acts.

Subject to subsection (2), this Act comes into operation on a day to be proclaimed.

If this Act does not come into operation before 1 November 2018, it comes into operation on that day.

In this Act—

a person employed by an employer to do any work for hire or reward and includes—

an apprentice and any person whose contract of employment requires the person to learn or to be taught an occupation; and

a casual or seasonal employee; and

a public sector employee within the meaning of section 4(1) of the Public Administration Act 2004; and

a person employed under Part 6 of the Public Administration Act 2004; and

a director of a public entity within the meaning of the Public Administration Act 2004; and

a person appointed under Part 3 of the Victoria Police Act 2013; and

a person appointed as a police reservist under section 103 of the Police Regulation Act 1958 as in force immediately before the commencement of section 282 of the Victoria Police Act 2013;

a person by whom an employee is employed; and

in the case of a transfer of assets referred to in section 11, a person who was not an employer at the time of the transfer but who is taken to be an employee's one employer under that section; and

in the case of a contract for the performance of work referred to in section 11, a person who was not an employer at the time the contract was entered into but who is taken to be an employee's one employer under that section; and

a person or body (corporate or unincorporate) nominated by the Governor in Council as the employer of a person referred to in paragraph (b), (c), (d), (e) or (f) of the definition of employee;

a fair work instrument; and

a fair work instrument given continuing effect under the Fair Work Transition Act;

maternity leave; and

paternity leave; and

adoption leave;

there is no capacity to change the working arrangements of other employees to accommodate the employee taking long service leave at the requested time;

it is impractical to change the working arrangements of other employees, or recruit new employees to accommodate the employee taking long service leave at the requested time;

the long service leave requested by the employee is likely to result in a significant loss in efficiency or productivity;

the long service leave requested by the employee is likely to have a significant negative impact on customer service;

is entitled to long service leave under a Victorian Act other than this Act, to the extent of any inconsistency with that other Victorian Act; or

is entitled to long service leave under an employment agreement (regardless of whether it was made before or after the commencement of this Act), to the extent of any inconsistency with that employment agreement if, in the opinion of the Industrial Division of the Magistrates' Court, the long service leave entitlements are more favourable under that agreement than those provided by this Act; or

is employed by an employer who was exempted from complying with Division 6 of Part 5 of the Long Service Leave Act 1992 under section 65 of that Act; or

is employed under Part 2.3, 2.4 or 2A.1 of the Education and Training Reform Act 2006; or

is entitled under the Construction Industry Long Service Leave Act 1997 to long service leave and to be paid benefits out of the fund within the meaning of that Act.

An employer may agree to an employee taking long service leave—

at any time before the employee becomes entitled to the long service leave.

If an employee takes long service leave before the employee is entitled to the long service leave, the employee is not entitled to any further long service leave or payment in lieu of long service leave for the period of employment in respect of which the leave in advance was taken.

If an employee's employment ends (other than because of the employee's death) before the employee has taken all the long service leave to which the employee is entitled—

the employee is taken to have started long service leave on the day on which the employment ends; and

the full amount of the employee's long service leave entitlement, calculated as at the day on which the employment ends, is due and payable to the employee on that day.

The employer of an employee referred to in subsection (1) must pay the employee the full amount of the employee's long service leave entitlement.

The obligation imposed under subsection (2) to pay the employee's long service leave entitlement continues from the day on which the entitlement accrues under subsection (1)(b) until the employer has paid the full amount of the entitlement to the employee.

If an employee dies before taking all the long service leave to which the employee is entitled, the employee's employer must pay to the employee's personal representative the full amount of the long service leave entitlement still owed to the employee.

If, in relation to a prosecution of an offence against this section, the employer alleges that the length of the employee's period of continuous employment with the employer is wrong in the charge‑sheet, the employer bears the onus of proving the allegation.

For the purposes of calculating the amount to be paid under this section—

the ordinary pay of the employee is the amount the employee was entitled to receive as at the time of the employee's death for working the employee's normal weekly hours at the employee's ordinary rate of pay; and

any average that needs to be taken for the purposes of section 15 or 16 is to be taken over the 52 weeks immediately before the employee's death.

This section sets out several situations in which an employee is taken, for the purposes of this Act, to have been employed by one employer despite having been employed during the relevant period by more than one employer in a strict legal sense.

If an employee is employed by a corporation, the employee is taken to have been employed by the corporation during any period that the employee was employed by—

a related body corporate of the corporation (within the meaning of the Corporations Act); or

another corporation and—

the directors of that other corporation and the employee's present employer were substantially the same; or

that other corporation and the employee's present employer were under substantially the same management.

If the ownership of a business employing an employee changes but the employment of the employee continues—

the employee is taken to have started employment with the new owner on the date on which the employee started employment at that business; and

the new owner must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued before the change of ownership.

Subsection (3) applies regardless of whether the change of ownership of the business occurred before or after the commencement of this Act.

If an employee is dismissed from employment by the owner of a business and is re‑employed within 12 weeks after the day of the dismissal by a new owner of the same business to perform work for the new owner which is the same (or substantially the same) as the work the employee performed for the former owner, the employee is taken—

to have finished employment with the former owner on the day before the ownership of the business changed; and

to have started employment with the new owner on the day the ownership of the business changed; and

to have been employed by the new owner from the day on which the employee first started employment at that business.

If an employee performs duties in connection with any assets used in the carrying on of a business owned by the employee's employer and those assets are transferred to another employer who continues the employment of the employee—

the employee is taken to have started employment with the new owner on the day on which the employee started employment at that business; and

the new owner must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued before the transfer.

Subsection (8) applies if—

an employee performs duties in connection with any assets used in the carrying on of an employer's business; and

the employee is dismissed by that employer; and

those assets are transferred to another employer; and

within 12 weeks after the day of the dismissal, the other employer employs the employee to perform duties in relation to those assets or other assets of a similar kind.

An employee referred to in subsection (7) is taken—

to have finished employment with the employee's former employer on the day before the assets were transferred; and

to have started employment with the new employer on the day the assets were transferred; and

to have been employed by the new employer from the day on which the employee first started employment at that business.

Subsection (10) applies if—

an employee performs work in the course of employment with the employee's employer (the first-mentioned employer); and

the first-mentioned employer enters into a contract with another person (the second-mentioned employer) for the performance of work that is the same (or substantially the same) as the work performed for the first-mentioned employer; and

as a consequence of that contract, the employee ceases employment with the first‑mentioned employer and commences employment with the second-mentioned employer.

An employee referred to in subsection (9) is taken to have started employment with the second-mentioned employer on the day on which the employee started employment with the first‑mentioned employer.

The second-mentioned employer referred to in subsection (9) must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued while the employee was employed by the first-mentioned employer.

In this section—

This section sets out several situations in which an employee is taken, for the purposes of this Act, to be continuously employed.

An employee's employment is taken to be continuous despite an absence from work caused by the employee taking—

annual leave; or

long service leave; or

paid or unpaid parental leave (other than in the case of a casual or seasonal employee); or

in the case of a casual or seasonal employee, paid or unpaid parental leave that is not longer than 104 weeks; or

carer's leave; or

leave on account of illness or injury; or

any other form of leave not referred to in this subsection that is provided for under the relevant employment agreement.

A casual or seasonal employee's employment is taken to be continuous despite an absence from work that is longer than 12 weeks, starting at the end of a particular instance of employment and ending at the start of another particular instance of employment if—

the casual or seasonal employee and the employer so agree before the start of the absence; or

the absence is due to the terms of engagement of the casual or seasonal employee; or

the absence is caused by seasonal factors; or

the employee has been employed by the employer on a regular and systematic basis and the employee has a reasonable expectation of being re-engaged by the employer.

An employee's employment is taken to be continuous despite an absence from work caused by the employer terminating or interrupting the employment with the intention of avoiding an obligation in relation to long service leave.

An employee's employment is taken to be continuous despite an absence arising solely from the transfer of assets from one employer to another, if the employee usually performs duties which are connected with those assets.

An employee's employment is taken to be continuous despite an absence from work caused by the termination of the employee's employment—

at the initiative of the employer or the employee, if the employee is re‑employed by the employer within 12 weeks after the termination; or

because of the expiration of a specified term of an employment contract, if the employee is re‑employed by the employer within 12 weeks after the expiration; or

because the employee's apprenticeship to an employer is completed, if the employee is re‑employed by the employer within 52 weeks after the end of the apprenticeship.

An employee's employment is taken to be continuous despite the employer standing down the employee—

during industrial action if the employee cannot be usefully employed because of the industrial action; or

because of a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible if the employee cannot be usefully employed because of the breakdown; or

because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible if the employee cannot be usefully employed because of the stoppage.

An employee's employment is taken to be continuous despite any interruption arising directly or indirectly from an industrial dispute.

In this section—

the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

a ban, limitation or restriction on the performance of work by an employee or on the acceptance of, or offering for, work by an employee;

a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

an employer prevents an employee from performing work under the employee's contract of employment without terminating that contract.

Despite anything to the contrary in subsection (9), industrial action does not include the following—

action by employees that is authorised or agreed to by the employer of the employees;

action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

action by an employee if—

the action was based on a reasonable concern of the employee about an imminent risk to the employee's health or safety; and

the employee did not unreasonably fail to comply with a direction of the employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

The following periods of absence from work referred to in section 12 are taken to be periods of employment when calculating the length of an employee's period of continuous employment—

a period of paid leave;

if a period of unpaid leave is less than or is 52 weeks, that period;

if a period of unpaid leave is more than 52 weeks, the initial 52 weeks;

if a period of unpaid leave is more than 52 weeks, the entire period of unpaid leave if—

the period of absence is taken to be a period of employment in accordance with the relevant employment agreement; or

the employer and the employee agreed in writing before the leave was taken that the period is taken to be a period of employment; or

the leave is taken on account of illness or injury or is any other form of leave provided for under the relevant employment agreement;

a period of absence arising from—

an interruption to, or termination of, employment caused by the employer with the intention of avoiding an obligation in relation to long service leave; or

the transfer of assets from one employer to another if the employee usually performs duties which are connected with those assets.

If an employee enters into a contract of employment with an employer within 52 weeks after completing an apprenticeship with the employer, the period of apprenticeship is taken to be a period of employment when calculating the length of the employee's period of continuous employment.

a period of unpaid leave in excess of 52 weeks (other than the initial 52 weeks) unless—

the period of absence is taken to be a period of employment in accordance with the relevant employment agreement; or

the employer and the employee agreed in writing before the leave was taken that the period is taken to be a period of employment; or

the unpaid leave is taken on account of illness or injury or is any other form of leave provided for under the relevant employment agreement;

an absence following the ending of the employee's employment described in section 12(6)(a) or (b);

an absence caused by an employer standing down the employee described in section 12(7)(a), (b) or (c);

an interruption described in section 12(8).

For the purposes of this Act, and subject to this section, ordinary pay—

means the pay that an employee is entitled to receive on the day on which the employee starts long service leave, calculated on the employee's normal weekly hours at the employee's ordinary time rate of pay; and

includes the cash value of any board or lodging that an employee receives from the employee's employer.

If an ordinary time rate of pay is not fixed for an employee's work under the relevant employment agreement, the employee's ordinary time rate of pay is the greatest of the following—

the average weekly rate earned by the employee in the 52 weeks immediately before the employee starts long service leave;

the average weekly rate earned by the employee in the 260 weeks immediately before the employee starts long service leave;

the average weekly rate earned by the employee during the employee's period of continuous employment with the employer immediately before the employee starts long service leave.