Long Service Leave Just before Eligible

Youi2018 on 28/06/2019 - 11:36
Last edited 28/06/2019 - 11:36

Hi all

I am in melbourne

According to fair work vic i can get my pro rata LSL after 7 years

I signed an E.A which states i can get my pro rata LSL after 10 years

I have called and been advised the E.A agreement over rides fair work vic laws and thats fine

However i am currently on mat leave which will end 1st May 2020 . I dont know if i will be able to go back to work with 2 kids and my 10 years will be 1st Aug 2020

If i dont go back is there any chance i could get my pro rata LSL at 9 years and 9 months ?

Has anyone been through this and what happened ?

Any advice would be appreciated

Thanks

Education & Work

Comments

  • cjbowden on 28/06/2019 - 11:45
    +9

    In Victoria, LSL does not accrue whilst on Maternity Leave. You might be going back to work for longer than you imagined.

    • Youi2018 on 28/06/2019 - 11:53

      I know its dosent accrue . But it is included in “ years worked “ for LSL

      • cjbowden on 28/06/2019 - 13:41
        +1

        So you have already worked at this job for 9 years and 9 months, or you have worked there for 8 years 10 months now and it will be 9 years 9 months in May 2020?

        • Youi2018 on 28/06/2019 - 17:19

          It will be 9 years and 9 months on may 2020

    • Melbourne Matt on 29/06/2019 - 12:57

      It does now. This was one of the changes introduced in the new Vic legislation that took effect on 1 Nov 2018.

      Under the old legislation parental leave up to 12 months didn’t break continuity of service, but LSL didn’t accrue. Now no amount of parental leave will break continuity and up to 12 months of unpaid parental leave will accrue LSL. This applies to parental leave post 1 Nov 2018 (and if the leave started before 1 Nov, only to the bit that happened after 1 Nov; parental leave taken prior to 1 Nov continues to be treated as per the 1992 rules)

      See https://www.business.vic.gov.au/hiring-and-managing-staff/lo…

      “Most forms of paid and unpaid leave – including unpaid parental leave up to 52 weeks (and longer in certain circumstances) – will count towards the period of employment, and so LSL will continue to accrue during this time. ”

      (Not that this necessarily helps the OP of course as it seems her EA overrides the Vic state legislation…)

  • Antares on 28/06/2019 - 12:35
    +3

    Can you go back as part time or casual? LSL accrues, at least in Queensland, even if you're casual as long as you have a regular shift… I think once a month is okay?

    • hashtagbargain on 28/06/2019 - 12:43

      Wont the accrual be prorated to your hours? You'll just be wasting time.

      • Love a bargain on 28/06/2019 - 13:32

        It seems like OP just wants to get to the point where she's entitled to the leave, and doesn't care too much about the incremental leave balance

      • Antares on 28/06/2019 - 17:33

        You would be prorated based on your total worked hours over the 10 years.
        So you won't get much LSL for the remaining casual/part time work, but you will get full LSL for the past 9 years of full time work.

    • Youi2018 on 28/06/2019 - 17:19

      I might have to go back part time

  • Smiley82 on 28/06/2019 - 13:37

    Have you only taken 1 year of Mat leave? Any chance you can request to extend it to August?

    I think your chances of getting it early are slim. It's date based eligibility, and anything else is purely discretionary.

    • Youi2018 on 28/06/2019 - 17:20

      This is my second year of maternity leave for my second child so i dont think i can extend it any longer

      • Gandalf the Thrifty on 28/06/2019 - 21:55

        If on long unpaid leave remember to check your super contributions, as insurance in super is going to end on 1 July if you haven't put any money into super for 16 months.

  • Love a bargain on 28/06/2019 - 13:38

    It depends if you intend to stay at the company or if you're looking to resign after the end of the LSL I guess.

    If you're just hoping to take a bit more time off after your maternity leave and would like to return to your job afterwards, you company might be willing to let you use your LSL early for staff retention. However, not sure if they'd feel the same way if you're going to resign anyway - in which case your best bet is probably to negotiate to work reduced hour on your return and take your LSL after the 10-year mark.

  • Quaker on 28/06/2019 - 13:52
    +1

    I got my prorata LSL as I was leaving employment to look after my two young children full time (was pregnant with child no. 2 at the time).
    If you google you will find cases where pro-rata Long Service leave was payable (under domestic necessity) when the person was resigning from employment to become a full-time carer for the children.

    Not sure if laws have changed since then but for me that was around 7.5 years ago and in NSW.

    http://workplaceinfo.com.au/payroll/leave/q-a/pro-rata-long-…

    • Youi2018 on 28/06/2019 - 17:30

      From what i have looked at so far it seems this is only in NSW

      Ill keep looking

    • Ozpit on 29/06/2019 - 09:53

      It’s worth noting that when you take LSL your employer continues to pay super payments if you are still employed with them. A lot of people resign and take their LSL prorata payment as a lump sum without realizing this. While it may not suit most people, it is financially advantageous to resign after LSL is taken. Alternatively, you could give notice of resignation before the end of your LSL - for whatever the notice period requirement is, e.g. 2 weeks or 4 weeks.

  • mikljon on 28/06/2019 - 13:53

    I just took my LSL in W.A. at 9 years and 3 months, I had to sign an agreement that said im not entitled to it until March 2020.
    I work fulltime for my company and they gave me 7 weeks LSL.

  • Skramit on 28/06/2019 - 14:11
    +7

    Um talk to your employer HR? They can probably answer you on the spot. Everything else in this thread will just be pointless.

    HR are literally employed and paid real money to answer questions like this from employees.

    • cypher67 on 28/06/2019 - 14:29
      +17

      Logic doesn't apply in forums, please move aside and let the experts talk

      • Skramit on 28/06/2019 - 14:31
        +7

        I apologise, you are correct.

      • mbck on 28/06/2019 - 14:32

        Damn right.

        Now op, just call this number, they'll help you and things will be ok.

        1800 245437

    • Youi2018 on 28/06/2019 - 17:27

      I will talk to them

      I just wanted to know if anyone had a similar experience and what hapenned to them

    • Vote for Pedro on 29/06/2019 - 11:55

      It depends on the culture in your organisation but HR may only think and advise in the employers best interests.

  • AFOS on 28/06/2019 - 15:43

    You become entitled to take LSL after 7 years of continuous service (Long Service Leave Act Vic 2018). Prior to 01.11.2018 this term was 10 years (having said that, LSL was still payable upon termination of employment after completion of 7 years of continuous service).

    BTW Any period of paid parental leave and up to 12 months of unpaid parental leave will count as service.

    Employment agreement (I guess, that's what EA here stands for) can not override current legislation. In this case you should be able to take LSL as you have worked longer than 7 years

    However, if you are covered by Enterprise Business Agreement (which EA can also stand for) then things start looking differently. Enterprise agreements generally provide more generous conditions for employees then Awards or NES. They are approved by FWC and have to pass better off overall test. You should have been notified by HR when you started employment if such agreement exists. Alternatively you can find it online. EBA will need to be amended to reflect legislative changes once it has expired (normally valid for 3 years). Until then all your leave provisions are covered by it.

    • Youi2018 on 28/06/2019 - 17:26
      -1

      I spoke to fair work vic about the whole 7 versus 10 year pro rata LSL

      I advised them where i work ( its under financial industry). They had a look and said my employees E.A or E.B.A is on a federal level and that over rides fair work vic law

    • Hardlyworkin on 28/06/2019 - 17:32

      AFOS; what you are saying kind of makes sense; up until the point that it is wrong. The Vic state LSL legislation doesn't apply to all employees in Victoria, just one of the complexities of the IR system. For example those employed by the federal government and working in Victoria have to wait 10 years as federal long service leave legislation doesn't have pro rata after 7 years.

      Do you work for Employsure by any chance?

      At best OP could sounds out HR to see if they can come to an arrangement. If not then she will have to wait unfortunately.

      • Youi2018 on 28/06/2019 - 18:04

        I work for one of the big 4 banks

      • AFOS on 28/06/2019 - 19:51

        You are right from perspective of Fair Work Act which applies to national system employees (public sector entities are not national system employers). However, unlike FWA, LSL Act does not apply only to national system employees. There are a couple of excluded industries but their provisions are already more generous than the ones prescribed by the Act.

        I also agree that the best course of action would be to talk to HR and ask specifically on what grounds leave application is rejected.

        As far as I can see even EBA should take second place if its LSL provision is less favorable than LSL Act's one (p 5.b).

        I also concur that employment law is quite complicated and therefore response of Fairwork representative may not be 100% correct. They are not employment lawyers.

        • Ozpit on 29/06/2019 - 10:23

          This ^. When digging deep into employment law, not all employment circumstances are clearly covered, i.e. there are grey areas. In these circumstances, HR will usually just side with the employer and advise accordingly.

          Note that what terrifies HR departments across the land is creating a precedent that will result in ongoing costs for the company as other employees subsequently making similar claims.

          However, if it goes to arbitration, the employer can often be found to be wrong. Even the threat of arbitration can force the employer’s hand.

          OP, if this issue means a lot to you, I would advise seeking legal advice from a third party that specialises in employment law.

  • grog on 28/06/2019 - 17:21
    +1

    Your union will advise you

  • Itsagooddeal on 29/06/2019 - 10:38
    -1

    You can ask your employer but they may well decline your request to pay out your LSL early.

    I work in HR and can confirm FW advise is usually correct. If you have an EA with LSL conditions, your EA conditions take precedence over the new very generous Vic LSL conditions.

    You could write to your employer (when you are due to return) and request to be paid out LSL. I would frame the request for payout that except for parental leave you would have met the 10 yr requirement.

    You could add in the letter that a refusal could be seen as discrimination on both hgrounds of gender (women have to take the time away from work, not men) and carer responsibilities.

    You could accept your LSL to be paid out on your active employment period (7 or 8 years) rather than the 10.

    Do you have personal leave? If you have heaps, you could ask to return as minimum hours per week and then keep taking paid personal leave as often as possible until you reach your 10 years.

    Maybe now is a good time to join the union for a couple of months (many unions offer deduced subs during parental leave) and then have them advocate for you.

    If it gets your LSL paid it, it's a good investment!

  • Vote for Pedro on 29/06/2019 - 13:53

    Maybe now is a good time to join the union for a couple of months

    This is the kind of selfish approach that ties up union resources from helping members who contribute for the overall good as opposed to joining when you need something and then leaving. If you want fee for service as and when you want to pay for it, go pay a lawyer

    • Hardlyworkin on 29/06/2019 - 16:12
      -1

      That's right, the union's have enough on their hands defending domestic violence.

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