Long service leave disputes and records
Sections 13, 14, 14A, 15 & 16
Most disputes are about a pro rata entitlement. Some may be avoided by the employee providing full details of the reason for termination to the employer prior to ceasing employment. The circumstances where an entitlement will exist are discussed in the section - 'Pro Rata Long Service Leave'.
Disputed long service leave matters may be referred by employers or employees to WorkSafe Tasmania which will investigate the dispute and attempt to resolve it with the parties.
If a dispute cannot be resolved, WorkSafe Tasmania will submit a report to the Tasmanian Industrial Commission outlining the circumstances of the dispute. A hearing date will be set and the matter heard and decided by a Commission member.
Parties to proceedings may choose to represent themselves or seek to be represented by an agent, including a union but excluding a barrister or legal practitioner.
After hearing the parties the Commission may either dismiss an application or make an order. An order may direct an employer to pay a long service leave entitlement or a pro rata long service leave entitlement.
Decisions of a single Commissioner can be appealed to a Full Bench of the Industrial Commission.
If an employer does not comply with the Commission's decision, it can be enforced through the Magistrates Court.
The Long Service Leave Act 1976 requires employers to keep long service leave records. Keeping records is in the interests of both employees and employers.
Accurate records are important, particularly in the event of a dispute. Long service leave records may be incorporated into any other employment record. The Long Service Leave Regulations 2000 specifies that the record for each employee must include:
- the employer's name and address
- the employee's name, address and position
- the date employment commenced
- details of any additional period of employment to be served, due to an absence or interruption that does not count towards 'continuous employment'.
- the end date of the qualifying period, after allowing for any additional period(s) required to be served
- details of leave taken, including: commencing date, finishing date, number of days taken, amount paid, and method of payment
- details of termination of employment, including: date of termination, reason for termination and rate of ordinary pay at the date of termination.
Employers should be aware that the records of a previous employer are to be transferred to a new employer on the transmission of business.