Long-service leave entitlements need overhaul, legal advocates say

The Law Council of Australia has called for sweeping reform to National Employment Standards, including changes to long-service leave, personal leave and redundancy entitlements.

Editor’s note: This story first appeared on HR Leader’s sister brand, Lawyers Weekly.

Legal advocacy body, the Law Council of Australia (LCA), has highlighted the complexity and inadequacy of the current long-service leave framework, calling for a unified national scheme, in its submission to the House of Representatives standing committee on employment, workplace relations, skills and training on the operation and adequacy of the National Employment Standards (NES).

Current long-service leave entitlements differ across state jurisdictions, with long-service leave entitlements allowed only under certain conditions, contingent on outdated awards and agreements. LCA emphasised that this has led to confusion and inconsistency.

In 2016, the Senate education and employment references committee argued that these inconsistencies led to a “glacial rate of progress” towards a national standard.

In its submission, the Law Council said that a review of the NES presents an opportunity to revive efforts towards a national long-service leave scheme that will simplify the existing system and align with the Fair Work Act’s emphasis on productivity and fairness.

Law Council of Australia president Tania Wolff said: “The National Employment Standards are intended to provide a clear, consistent foundation for minimum workplace protections.”

LCA said the unworkable complexity of current long-service leave entitlements and the divergent schemes across states and territories make reform necessary, highlighting the challenges SMBs and employees without union representation face in understanding complicated long-service leave entitlements.

“Long-service leave remains an exception, operating through a complex patchwork of state and territory laws that can create unnecessary administrative burdens, particularly for employers operating across jurisdictions,” Wolff said.

In addition to advocating for nationalising a long-service leave scheme, the submission called for a review of the redundancy pay scale, which reduces entitlements after 10 years of service, and submitted that employers should provide reasons for termination in writing to reduce unmeritorious claims and improve clarity for employees.

Further, LCA addressed the reasonableness of requests to work on public holidays and the interpretation of personal leave entitlements. Adding that further guidance from the Fair Work Ombudsman on what constitutes a reasonable request to work on a public holiday would benefit many, while also calling for the clarification of the definition of a “day” in the wording of personal leave legislation to ensure consistency and understanding.

“The Law Council’s submission encourages the review to revisit the longstanding objective of a national long-service leave scheme,” Wolff said.

“While such a reform would require careful design, a nationally consistent framework would provide greater clarity, fairness and efficiency for both employers and employees,” she said.

The submission follows calls from the Australian Services Union for a four-day work week, and from the Australian Council of Trade Unions for 10 days of paid reproductive health leave and five weeks of annual leave.