The Queensland Parliament passed the Community Services Industry (Portable Long Service Leave) Act 2020 on 17 June 2020. This amends the Industrial Relations Act 2016 in a number of ways, most of which do not affect QHA members, but significantly, amends the Industrial Relations Act 2016 to clarify that an employee with between 7 and 10 years’ service is entitled to receive proportionate payment of long service leave on termination of employment if the employment is ended by the employer because the employee has an illness related incapacity that is the reason for termination of employment. Illness is defined as including injury, incapacity or other medical condition.
It had been determined in Schipp & Anor v The Star Entertainment Qld Limited  ICQ 009 that the existing provisions of the Industrial Relations Act 2016 only recognised an entitlement to receive proportionate payment of long service leave on termination of employment if the employee terminated their own employment, not in circumstances where an employee with between 7 and 10 years’ service had their employment terminated because of an illness related incapacity. The amendments to the Industrial Relations Act 2016 now mean that where an employee with between 7 and 10 years’ of service ends, or has their employment ended, because of illness, pro rata long service leave is payable.
Employees with 10 or more years’ service receive their entitlement to long service leave on termination of employment, irrespective of the reason and who is the initiator of the termination.
When is long service leave payable on termination?
With the recent amendment to the Industrial Relations Act 2016 and the ongoing impacts of COVID-19 on operational requirements, QHA members should ensure that they understand when and to whom long service leave is payable on termination of employment. This is summarised below:
Type of Employment:
Full time, part time and casual employees all accrue long service leave. The amount of long service for a full time employee after 10 years of service is 8.6667 weeks. Where an employee has been employed across employment types or as a part time or casual employee, long service leave is calculated using a prescribed formula based on the number of ordinary hours of work over the period of employment.
Required Period of Service and Reason for termination of employment:
Employees with more than 10 years’ service are entitled to payment of long service leave on termination of employment irrespective of the reason. This means that in circumstances of serious misconduct, or employee resignation, accrued unused long service leave is payable on termination of employment.
Employees with between 7 and 10 years’ service only receive payment for proportionate long service leave on termination of employment in the following instances:
- Termination by the employer:
- because of the employee’s illness (illness includes injury, incapacity or other medical condition)
- for another reason other than the employee’s conduct, capacity or performance; or
- where the employer unfairly dismisses the employee.
- Termination by the employee:
- because of the employee’s illness; or
- because the employee has a domestic or other pressing necessity that has forced the employee to resign; or
- employment ends because of the employee’s death; or
- the termination is because of the passing of time (ie. a contract is ending) and—the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and the employee was prepared to continue the employment with the employer.
For members forced to consider their operational requirements as a result of COVID-19 and the possibility of positions no longer being required (that is the position is redundant), unused long service leave is payable to all types of employees with more than 7 years of service that are terminated because the position is redundant and no longer required. This includes casual employees. For further information regarding long service leave, including what is a domestic or pressing necessity, please refer to the QHA’s long service leave fact sheet, available HERE.
QHA members seeking more information or wishing to discuss a specific employment relations matter are encouraged to contact the Employment Relations Department for a confidential discussion by calling (07) 3221 6999 or emailing email@example.com.