Victorian Lsl Review - Survey Questions

VICTORIAN LSL REVIEW - SURVEY QUESTIONS

ADAPTED FROM APPENDIX 1 OF LSL DISCUSSION PAPER: SUMMARY OF OPTIONS FOR REFORMING THE LSL ACT (INCLUDING ADDITIONAL QUESTIONS)

Please respond to this survey by no later than 10 March 2016

Issue:Removing limitations on agreements to take any period of LSL

Section 67 of the LSL Act says that LSL should be taken in one period. However, if an employer and employee agree, an employee may take the first 13 weeks of LSL in two or three separate periods and may take any further LSL to which he or she becomes entitled in two separate periods.

Question1.1:Should employers and employees be allowed to agree that LSL be taken in smaller increments?

Answer:Yes

Question 1.2:If the answer to Question 1.1 is “Yes”, should there be any minimum periods to these increments (e.g. no less than 1 week)?

Answer:Yes

Question 1.3:If the answer to Question 1.1 is “Yes”, should there be any safeguards to protect employees from the risk of being pressured by employers to take LSL in smaller increments?

Answer:Yes

Question 1.4:Would allowing employees to take shorter periods of LSL put undue pressure on your business?

Answer:Yes

Issue:Cashing out LSL

Section 74 of the LSL Act makes it an offence for an employer to pay, or receive payment, in lieu of LSL. LSL must be taken as leave unless

the employment has been terminated.

Question 2.1:Should employers and employees be allowed to agree to cash out accrued LSL?

Answer:Yes

Question 2.2:If the answer to Question 2.1 is “Yes”, should there be any safeguard to protect employees from the risk of employers pressuring them to accept money instead of LSL?

Answer:Yes

Issue:When can LSL be taken?

Section 58 of the LSL Act provides that a pro rata LSL entitlement is available after 7 years’ service, but only on the termination of employment. Therefore, if the employment ends, the LSL is paid out. Otherwise, the employee has accrued the leave pro rata but can only take the LSL once they have ten years’ continuous service.

Question 3.1:Should pro-rata LSL be allowed to be taken after 7 years’ service (i.e. between 7 years and 10 years continuous service)?

Answer:Yes

Issue:Calculating payment whilst on leave

Section 64 of the LSL Act uses the concept of ‘ordinary pay’ to determine the amount an employee is entitled to receive at the time they take LSL.

‘Ordinary pay’ is the pay an employee is entitled to receive at the time they take LSL. If no ordinary time rate of pay is fixed the employee’s ordinary time rate of pay is taken to be the greater of either the average weekly rate earned in the 12 months immediately before they take LSL or the average weekly rate earned in the five years immediately before they take LSL.

Question 4.1:Should LSL be calculated based on the employee’s actual rate of pay for their usual hours of work at the time leave is taken (i.e. including penalties and any non-monetary benefits)?

Answer:Yes

Issue:Changes to hours worked

Many workers, particularly women, change their hours of work. Currently, if this happens, their hours of work for calculating LSL are averaged over the previous 12 months, or five years (whichever is the greater).

Question 5.1:Should the hours of work for employees who change their hours of work during the course of their employment be averaged over the full period of those employees’ employment?

Answer:Yes

Question 5.2:If this calculation is based on the length of the employee’s employment, is this likely to create administrative complexity for your business?

Answer:Yes

Issues:Treatment of family leave

Section 62 the LSL Act describes which types of absences do not break continuity of service, but do not count as service.

Section 63 of the LSL Act describes absences that do not break continuity of service, and also count as service. A period of up to 12 months of family leave, whether paid or unpaid, will not break continuous service. However, this period will not count as service if it is unpaid. The 12 month restriction does not apply to other forms of leave (e.g. annual leave).

The FW Act provides that employees may take up to two years unpaid family leave.

Generally, a period of unpaid leave is not counted as service.

Question 6.1:Should the LSL Act be amended to provide that a period of family leave of up to 12 months, regardless of whether it is paid or unpaid, will be counted as service?

Answer:Yes

Question 6.2:Should the LSL Act be amended to provide that a period of family leave greater than12 months, regardless of whether it is paid or unpaid,will not break continuity of service (but will not count as service)?

Answer:Yes

Issue:What counts as service for casual and seasonal employees?

Section 62 of the LSL Act refers to ‘continuous employment’ for determining an entitlement to LSL, but does not define the term, other than to specify that interruptions to work will not break continuity.

Section 62A says that casual and seasonal employees are regarded

as having continuous employment in defined circumstances.

In 2005 amendments were made to the LSL Act to clarify that casual and seasonal employees are entitled to LSL even though the Act does not expressly provide that interruptions to employment inherent in a casual/seasonal employment relationship count towards the period of continuous employment

Question 7.1:Should the LSL be amended to make it clear thatcertain interruptions to employment of a casual or seasonal employee still count towardsthe periodof continuous employment?

Answer:Yes

Issue:Recognising prior service where a business is sold

Section 60 of the LSL Act defines the term ‘one employer’ and sets out several situations in which an employee is to be regarded as having been employed by the one employer, even though the employee may have worked over the relevant period of time for more than one employer in a strict legal sense.

Where there has been a transferof a business, and assets, physical or intangible, have also transferred, the LSL Act is clear that employment with the original employer will count as service. However, it appears that where no physical assets have transferred, on the transfer of the business, employment with the first employer may not count as service, depending on the circumstances.

Question 8.1:Should the LSL Act be amended to provide morecomprehensive definitions of the terms ‘transfer of business’ and ‘assets’?

Answer:Yes

Issue:Right to seek an exemption

Sections 65(2) – (5) of the LSL Act allow an employer to apply to the Industrial Division of the Magistrates’ Court to be exempted from complying withthe LSL Act in respect of some, or all of its employees.

It is believed that the last time this provision was used was sometime

in the 1960s.

Question 9.1:Should this exemption be abolished?

Answer:Yes

Issues:Quantum of penalties, enforcement and record keeping

The LSL Act imposes penalties (both criminal and civil) for a range

of offences. Penalties in the LSL Act range from five penalty units to 20 penalty units. A penalty unit is about $150. The criminal penalties were last reviewed in 2005, when they were increased. They are, however, still comparatively low, particularly when compared to penalties applying under the Commonwealth Fair Work Act 2009. For example, the penalty for contravening a modern award under the Fair Work Act 2009 is up to 60 penalty units ($10,800).

The LSL Act does not provide Departmental officers with the power to require employers to produce documents, such as time sheets or pay records. This hampers the officers’ ability to properly investigate claims, and prepare a case for recovery of unpaid entitlements. Whilst most employers do the right thing, unfortunately there are some employers who not only refuse to pay LSL to their employees, but actively obstruct attempts by the Victorian Government compliance officers.

Question 10.1:Should the penalties in the LSL Act be increased to bring them more into line with comparable legislation such as the Fair Work Act 2009?

Answer:Yes

Question 10.2:Shoulddepartmental officers have the ability to require the production of documents and materials for investigating complaints?

Answer:Yes

Question 10.3:Shouldpenalties be imposed on businesses which do not produce documents when requested to do so by departmental officers for the purposes of investigating complaints?

Answer:Yes

Question 10.4:Shoulddepartmental officers be allowed to enter a business premises to inspect documents in order to check compliance?

Answer:Yes