The Industrial Magistrate found that under s 9(1a) an employee may unilaterally nominate to take all of their long service leave, provided certain conditions are met, and under s 9(1b) the employer’s agreement is required for an employee to take portions of their long service leave.

Background

The claimants were employees of the respondent. The claimants performed an important role in the respondent’s business, without which the respondent’s production could be adversely impacted.

In October 2020, the claimants each requested long service leave from 19 to 24 December 2020. The respondent declined each of their long service leave requests. The claimants then proposed alternative dates in April 2021. On or about 19 December 2020, the respondent notified the claimants that it was unable to accommodate their alternative leave requests.

Contention

The claimants sought a declaration under s 11(1) to determine the statutory construction of s 9.

The claimants contended that s 9(1a) allows an employee to unilaterally nominate to take all or a portion of their outstanding long service leave. The claimants stated that the ordinary meaning of the words ‘not to refuse’, ‘at any time suitable’ and ‘any period’ when read in context, was consistent with such a contention.

The respondent contended that s 9 allows an employer to refuse an employee’s request to take long service leave for periods that are less than the employee’s overall long service leave entitlement. Further, an employee is not permitted to unilaterally take long service leave for periods less than their overall long service leave entitlement, where the long service leave entitlement accrued more than 12 months earlier.

Findings

The claims were dismissed.

Under s 9(1a) of the Act, an employee may unilaterally nominate to take all of their long service leave, which has accrued 12 months prior, provided the employee provides more than 2 weeks’ notice to the employer.

Section 9(1b) requires an employer’s agreement for an employee to take portions of long service leave in separate periods.

Thus, based on statutory construction, the purpose of the Act and Parliamentary intention, the Act does not allow an employee to unilaterally nominate to take a portion of their long service leave, which has accrued 12 months prior.

The decision can be read here.