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  1. #1
    Join Date
    Mar 2012
    Location
    Hong Kong
    Posts
    34

    Default Long Servie Leave - when should I start to count ??

    Hi HR Prefssional,

    I have a staff joined our UK office in Jun 2005 and was approved to relocate to hire under our Sydney entity on Sep 2014, next year, he worked in our company for 10 years, he is asking for the LSL.
    Can anyone advise me if he will entitled the 2 months LSL in Jun 2015 ? or his LSL entitlement should counted based on date for Sep 2014 ?


    one more,
    Long Service Leave : Does this include holidays and weekends :
    Example : Leave from Dec1 – Dec 31 2014 is 31 days or 21(excluding weekends , holidays) days?

    any one can give me some advises, many thanks.

    Best Regards, Elaine

  2. #2
    Join Date
    Apr 2012
    Posts
    196

    Default

    Long Service Leave applies to work performed in Australia ie depending on the state or territory the employee is working in - it is generally 2 months or 8.67 weeks after ten years of continuous service (ie breaks of LWOP do not break continuity but are not counted for purposes of calculating the service).

    The date of hire in Australia for purposes of calculating LSL for the UK national in your example, will be Sept 2014 which is the date from which accrual of LSL will begin. A common mistake with international companies if people work for an overseas operation and are offered jobs in Australia and the Australian entity retains the original hire date overseas - this may be well and good for long service awards which many orgs hand out after 20, 30 years of service but no help in Australia when it comes to calculating leave entitlements which are different here. The clock is reset at zero when the employee begins work in Australia. Of course the exception would be where you have transferred an Aussie overseas for a period and he is now returning. In that scenario, he would have been frozen/suspended in the Oz payroll and reactivated when he returns.

    To your second question, again, depending on the state or territory (LSL is not under the Fair Work Act but rather the result of differing legislation in each Australian state or territory), this can vary. In most states, public holidays falling within a period of LSL does not extend the leave. You count the normal working weeks (Mon-Fri) when working out dates of the leave. In your example, you need to look at the number of working days in December.

    Your next step is to review the LSL Act in the applicable state or territory.

    Tiger

  3. #3
    Join Date
    Mar 2012
    Location
    Hong Kong
    Posts
    34

    Default

    Hi Tiger,

    Many thanks for your reply.

    I tried to call the fair work Ombudsman this morning , and the Fair work Adviser said he can not gives me a answer and ask me to seek for legal advise, he said it is more a legal question and he can not tell me whether we should need to recongize his years of service that the worked for our UK entity.

    For this specific case, this employee is a local Australian, he original worked for our Sydney office since Jun 2005 - Sep 2008 and then relocated to UK for 6 years ( doing the same and similar job ), but sign a local UK employment contract and under the local UK package. And he relocated back to Sydney by Sep 1, ( doing the same and similar job ) and signing a new Sydney employment contract and under the local Sydney package.

    Under this scenario, will the answer make any difference ?

    He quote me the below :
    The below is an excerpt from the official workplaceinfo website (News & Info for Australian HR/IR Professionals):
    "It is possible for an employee to continue to be regarded as an employee for the purposes of long service leave even though a considerable period of time was spent outside Australia in the performance of the contract of employment. However, there is no fixed period or method of calculating how long an employee can remain outside the jurisdiction without losing the benefits of the legislation. Industrial tribunals have generally applied the following 'tests' when considering this issue:
    Was the employee employed in Australia in the first place?
    Was the employee sent interstate or overseas by the company at their request and at their expense to increase the knowledge of the employee which would ultimately benefit the company?
    Did the employee return to Australia for a substantial period?
    Was it the company's intention that the employee return to Australia for the major part of their employment with the company?
    Was the employment terminated in Australia?
    If most of these questions are answered in the affirmative, the employee may have continuity of service for the purposes of calculating an entitlement to long service leave."
    he said in his case all the above answer is YES, that's why he should eligible for the LSL based on his original hire date in Sydney ...

    can you please help to give me more advise on this case ?

    many appreciated.

    Elaine

  4. #4

    Default

    With due deference to Tiger, Elaine I would seek advice from an employment lawyer. Some years ago when I worked for an IT Company in NSW we had an employee transfer from the US (not an Australian) and she claimed LSL after a couple years in the Sydney Office as she then had 10 years experience with the company. The advice we received at the time was to pay the LSL as much as we didn't like it. Regards Tasman

  5. #5
    Join Date
    Apr 2012
    Posts
    196

    Default

    This additional information puts somewhat of a different slant on your
    issue. It now sounds like you actually transferred this employee
    overseas so firstly, the three years he initially worked for you will
    count towards his LSL. Then it will depend on your a) International
    Transfers Policy and b) the Contract this employee was issued with
    when he was transferred to the UK. International companies who move
    employees around always issue specific contracts related to the
    overseas secondment and will always have a policy. You need to review
    those to see what your company policy is or what was contractually
    agreed in relation to LSL.

    If your policy/contract states that the company will recognize
    overseas secondments in calculating length of service for purposes of
    LSL, then that time will count. But if your policy/contract is silent
    on this aspect, the time worked overseas is not counted because LSL is
    a leave type specific to working in Australia, not anywhere else.
    Further, I imagine that you would have suspended the employee in your
    Australian payroll when he was transferred because he would have had
    to have been paid by your UK entity - that further supports the fact
    that there is no LSL accrual for that secondment.

    It sounds like you need to get this right in this example because if
    you have other international secondments, this issue will come up again.


    One last point, if this wasn't an international transfer/secondment
    and the employee in fact resigned before moving to the UK (you
    indicate he had what sounds like a new employment contract given to
    him over there) and you rehired him on his return, then the continuity
    of service was well and truly broken and the clock resets at zero on
    his return to work date with you here.


    Finally, Fair Work are probably going to be little help in this
    because LSL is not governed by the Fair Work Act (and not one of the
    NES), it is state and territory based legislation which,
    infuriatingly, can be quite different from state to state.


    Assuming this employee worked/works in the State of NSW, your best
    source is the NSW Government Industrial Relations website - there is a
    telephone number on top of screen which you can call.

    Long service leave - NSW Industrial Relations

    If the employee is in another state, then google LSL for that state
    and contact that relevant state body who has jurisdiction over long
    service leave

    I Trust this helps and good luck with your resolution

    Tiger

  6. #6
    Join Date
    Apr 2012
    Posts
    196

    Default Long Service Leave

    Quote Originally Posted by Tasman McManis View Post
    With due deference to Tiger, Elaine I would seek advice from an employment lawyer. Some years ago when I worked for an IT Company in NSW we had an employee transfer from the US (not an Australian) and she claimed LSL after a couple years in the Sydney Office as she then had 10 years experience with the company. The advice we received at the time was to pay the LSL as much as we didn't like it. Regards Tasman
    Interesting Tasman - as recent as 2012, large global IT coy I was with had employees coming to Australia from Asia, US, etc and in no instance was the service in the prior countries recognized for purposes of LSL - only for that org's long service awards (they got a gold watch after 30 yrs!). In most cases the employees actually resigned and were rehired in Oz but not always. In only one case (because she had it written into her contract) was service in Asia (about 3 yrs) recognized for an Australian who returned to work in Oz company.

    But I agree - always best to seek legal advice - but be sure it is with a reputable law firm who specializes in employment law as sometimes they get it wrong as well.

  7. #7

    Default

    Yep! Agree with that Tiger and as you pointed out the structure in the contracts of employment are critical.

  8. #8
    Join Date
    Mar 2012
    Location
    Hong Kong
    Posts
    34

    Default

    Hi Tiger,

    thank you very much for your advices,

    We have a lot of relocations within our company, majority of the relocation will handle based on the local package not a secondment or oversea assignment, but one thing we applied to all the relocations are we will recongize all their past service - orignal hire date, so even this employee relocated to UK after he worked 3 years in our Sydney office, when he signed a new employment contract in UK, in the UK employment contract, we will indicidate that we will recongize his past servivce based on his original hire date in our Company.

    in Sep 2014, when we relocated him back to Sydney, we signed a new Sydey employment contract with him and we have this wording in his employment contract : Accordingly, your period of continuous employment with the Company commenced on 6th June 2005.

    with this, I am not sure, we need to give him the LSL next year Jun 2015.....

    " remarks : we did not mentioned any word related to LSL in our employment contract.

    BR/Elaine

  9. #9
    Join Date
    Mar 2012
    Location
    Hong Kong
    Posts
    34

    Default

    Hi Tiger,

    I just got the confirmation from a HR legal Adviser said that since the employees employment contracts were terminated but restarted on the day after immediately the termination, this is equal to re-employed by a related entity, so even the entity is not in oversea country, we need to honor this a "continuous service" and LSL need to calculate for all the services year they worked for us.
    they said there was certainly NO GAP between periods of employment sufficient to break the continuity of service ( the break must be for at least 8 weeks in accordance with the LSL Act), as a result , continuity is likely to be deemed.....

    I want to look for 2nd opinion, any one can referral me some good HR legal adviser ? many thanks.

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