Long Service Leave
I was employed by a Singapore based IT company in Dec 1999 in Singapore. In May 2007 I was sent to Australia on 457 visa for executing a project on behalf of the company. I continue to live in Australia since then until now working for the same company and in this period of my stay in Australia, I was sponsored a permanent residency by my company and I have now taken Australian citizenship.
I now intend to take Long Service Leave. The question that I have is :
(A) Will my long service leave entitlement be for my employment with this company from Jul 2000 OR from April 2007, for calculation purpose - so that I can plan my LSL accordingly
(B) Is there any way the employer can find a reason to reject/refuse this LSL, on the grounds of 457 visa, my actual employment with this company starting in Singapore (and not Australia) etc, although it may not be the case that the employer will refuse
(C) Will I have to wait until May 2017 to avail LSL, as I would complete 10 years of continous employment in Australia (OR) am I already eligible for LSL given that my employment with the same company started in Dec 1999 although outside of Australia
I am just trying to get clarity so that I can plan my leave. Tried to seek answers with FWA regarding this but hasn't been helpful as they too are not very clear regarding this (... atleast the agent who spoke to me didnt have a clue as to how this would get addressed).
Any inputs please.
Generally, LSL entitlements in Australia are set out in State/Territory laws, so (for example) Queensland and New South Wales have similar but different LSL schemes. However, some workers get their long service leave entitlements from a Collective Agreement, or a Federal Award or even a State Award. Under some of these LSL schemes, the minimum qualifying period of service is 15 years of service.
One common feature of all of these sources (laws, agreements, awards, etc) is that they are limited in their geographic jurisdiction so, for example, a NSW long service law does not cover a Queensland worker. And none of them cover workers who aren't working in Australia.
I'm going to assume that you were an "Australia-based" worker from May 2007, paid in Australian dollars and paying Australian tax etcera. (Because the situation would be different if you were a Singapore-based employee being paid a Singaporean wage while temporarily stationed in Australia. But since you've been here since 2007 on a 457 visa and now as a citizen, that seems unlikely.) I also assume that you haven't had any significant interruptions in your service, such as periods of leave without pay.
As far as I know, being employed while on a 457 visa should make no difference at all to your long service leave entitlements. Therefore you are currently just short of completing 10 years service commencing May 2007, and you should be entitled to long service leave when you complete the minimum service period for LSL. Under most private-sector LSL schemes a worker is entitled to 2 months leave after completing 10 years service. However, different rules may apply depending upon where you are working. For example, under the Australian Capital Territory Long Service Leave Act 1976, a worker is entitled to 1.4 months of leave after completing 7 years of continuous service.
Your employer may have a company policy that grants you long service based on your service in Singapore as well as your service in Australia. That appears unlikely as long service leave seems to be uncommon as a workplace entitlement in other countries.
In summary, it seems to me that you should shortly complete 10 years' Australian service which will give you an entitlement to take 2 months of long service leave (unless you're unlucky enough to be in a job that is covered by one of the LSL schemes where you have to complete 15 years). Your earlier period of service in Singapore will neither add to nor reduce your entitlement to leave based on your Australian employment.
If you intend to take long service leave in the next few months, it's entirely appropriate to discuss this with your employer.
No you will not receive any joy on this topic from Fair Work because, as Greg has stated, LSL is governed by the respective state and territory legislation in Australia
Following on from Greg's detailed response, basically:
a) LSL applies to work carried out in Australia only - thus your employment in Singapore does not count towards this, only the time you have worked in Australia. Of course, if an employer chooses to recognize such overseas work, that is up to them, but the employer has absolutely no obligation to do so. So this means May 2017 is your tenth anniversary, assuming no gaps in employment, and you will (depending on the state/territory in which you work) be entitled to two months of LSL (or 8.67 weeks).
b) Visa holders working in Australia are entitled to the same employment conditions as an Australian employee although generally, on a pro rata basis because most visa holders are not here permanently.
c) The LSL entitlement is not an entitlement until the employee has worked for ten continuous years with the employer, depending on the state or territory in which you work. 'Continuous' means there has been no break/gap in service eg the most common being unpaid leaves of absence to travel or study or the taking of parental leave. In such examples, the time on LWOP does not break the continuity of service but does not count towards it. So, eg, a break of say six months would mean you would not be entitled to your LSL until November 2017.
d) An employee is not eligible to take LSL until they have the entitlement. However if an employee with less than ten years of service wishes to take their LSL, the employer may agree for them to do so but again, if it is not yet an entitlement, they are under no obligation to do so.
e) In some states, cashing out LSL (only provided it is an entitlement) is unlawful, in others, it may be done with agreement by the employer or, in Qld, with special dispensation by Qld Industrial Relations.
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