Legal Insights

Updates to Local Government Long Service Leave: Removing outdated provisions, re-ordering, and other minor updates

By Lindy Richardson, Ross Jackson & Michael Wells

• 16 July 2021 • 11 min read

The Local Government (Long Service Leave) Regulations 2021 (Vic) (2021 Regulations) came into force on 1 July 2021, replacing the 2012 Regulations of the same name. The 2021 Regulations provide for long service leave entitlements for Victorian local government employees.

The 2021 Regulations are similar to the 2012 Regulations, both in substance and structure. However, they do include the removal of outdated provisions, a re-arrangement of numbering, and other minor updates.

Because of, or in anticipation of, marriage” bites the dust

The regulations governing long service leave in the local government sector have traditionally provided that, in certain circumstances, local government employees (with five or more years’ service) are entitled to payment for long service leave on a pro-rata basis if their employment comes to an end.

One of those certain circumstances is when an employee quits their job “because of, or anticipation of, marriage”. This curiously worded provision is likely a remnant from a by-gone era where women were forced to resign from employment upon marriage, or alternatively chose not to work. For instance, the former Victorian Public Service Act 1958 provided at section 37 that “no married woman shall continue in office or employment in the public service after her marriage”. The 2012 Regulations (and its predecessors) appear to have intended to provide women a pro-rata long service leave payment in recognition of their service before they entered married life and would likely cease paid employment.

Now many decades after it was first introduced, the 2021 Regulations remove this entitlement and provide that the only avenues for local government employees (with five or more years’ service) to claim pro-rata payment for long service leave is if they:

  1. retire because of age or ill-health;
  2. have their employment terminated (except for serious or wilful misconduct or for poor performance - compared with the broader entitlement under the Long Service Leave Act 2018, which contains no such exceptions albeit the entitlement applies after 7 years);
  3. resign because of impending parenthood; or
  4. resign while on paternity leave.

Transferring to the public service? Council no longer may pay – it must

The 2021 Regulations alter the circumstances in which a local government employee with seven years of service is able to transfer their accrued entitlement to long service leave to new employment with another Council or public service body.

The 2012 Regulations required local governments to transfer an employee’s entire long service entitlement to the employee’s next local government employer. But what if the employee wanted to take up employment with a public service body i.e. a State Government Department? The 2012 Regulations provided that the employee’s local government employer may pay to the public service body or special body a pro-rata amount of long service leave.

The 2021 Regulations retain this pro-rata entitlement for local government employees transferring to the public service, but they now impose an obligation that local governments must effect that transfer – may has turned into must.

Out with the old, in with the new… numbering

The 2021 Regulations also slightly re-arrange the numbering of regulations. We include below in Table 1 a list of the equivalent numbers, regulations and changes between the 2012 Regulations and 2021 Regulations.

Other updates

Taking its place as a statutory instrument of the 21st century, the 2021 Regulations also pivot terminology towards gender neutral language by replacing the words ‘his or her’ with ‘their’.

Lastly, the 2021 Regulations remove the ability of a person employed by a ‘licensee’ under the Water Industry Act 1994 (Vic) to carry their long service leave with them if they commence employment with a local government. We consider this removal a non-issue because ‘licensees’ have not been active since their enabling provisions were repealed from the Water Industry Act 1994 (Vic) in 2012.

Implications

There are likely limited implications for councils in the change from the 2012 Regulations to the 2021 Regulations, other than to ensure that you are using the updated regulation numbers and title. We have updated our Local Government template contracts to ensure they refer to the 2021 Regulations.

Table 1 – Equivalent regulations and changes between 2012 Regulations and 2021 Regulations

2012 Regulations

2021 Regulations

Changes

Previous Regulation

Equivalent Regulation

1

Objective

1

Objective

-

2

Authorising provision

2

Authorising provision

-

3

Commencement

3

Commencement

-

4

Revocation

-

-

Removed

5

Definitions

4

Definitions

-

6

Previously revoked in 2012

-

-

-

7

Council must not grant leave or pay for service if leave or pay already granted in respect of that service

6

No long service leave if already granted

-

8

General entitlement to long service leave

5

General entitlement to long service leave

Paragraphs re-arranged into sub-lists.

9

Entitlement to long service leave on voluntary termination if member has 7 years of recognised service

7

Long service leave on voluntary termination

Council must (previously, may) pay to the public service body in circumstances where an employee defers taking LSL because they intend to work with another public service body.

10

Entitlement to long service leave on death

9

Long service leave on death

-

11

Entitlement to long service leave on termination in other circumstances

8

Long service leave on termination in other circumstances

Removed entitlement to LSL if employee voluntarily terminates their employment ‘because of, or in anticipation of, marriage’.

Wording slightly re-arranged for clarity.

12

Recognised service under these Regulations

10

Recognised service under these Regulations

Wording slightly re-arranged for clarity.

13

Recognised service—Absences that must be included

11

Recognised service—Absences that must be included

Reference to Accident Compensation (WorkCover Insurance) Act 1993 changed to Workplace Injury Rehabilitation and Compensation Act 2013.

14

Recognised service—Absences and service not included

12

Recognised service—Absences and service not included

Wording slightly re-arranged for clarity.

15

Recognised service to include prior employment with other Councils, persons or bodies

13

Recognised service to include certain prior employment

A ‘licensee’ is no longer a recognised service.

16

Public holidays

14

Public holidays

-

17

When leave can be taken

15

When leave can be taken

-

18

Double leave at half pay

16

Double leave at half pay

-

19

No other employment

17

No other employment

-

20

Exchange of information between Councils

18

Exchange of information between Councils

-

21

Transfer of payments between Councils in respect of entitlements

19

Transfer of payments between Councils

A ‘licensee’ is no longer a recognised service.

22

Agreements regarding transfer of entitlements

20

Agreements regarding transfer of entitlements

Councils can no longer enter into agreements with a ‘licensee’.

23

Part-time or casual service prior to 1 January 1986

21

Part-time or casual service prior to 1 January 1986

Wording slightly re-arranged for clarity.

24

Saving of earlier entitlements

22

Saving of earlier entitlements

Wording slightly re-arranged for clarity.


Do you have any questions about the Local Government (Long Service Leave) Regulations?

Please contact a member of our Employment, Safety & People Team.

By Lindy Richardson, Ross Jackson & Michael Wells

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