Authorised officers
Authorised officers are appointed to carry out certain functions under the Act. They are employed by the Wage Inspectorate.
Authorised officers can require a person to provide information or documents for monitoring and enforcing compliance with the Act. Where an authorised officer exercises this power in person, the officer must produce their identity card for inspection. An authorised officer must also produce their identity card for inspection at any time during the exercise of a power under the Act, if asked to do so.
In some circumstances, it is a criminal offence not to provide the information or documents requested by an authorised officer in accordance with the Act. It can also be a criminal offence to produce a false or misleading document.
Can an employer or employee be penalised for breaching the long service leave act?
Yes, there are penalties for breaching the Act.
Penalties may apply where an employer:
- fails to pay an employee for the period during which the employee is taking long service leave;
- fails to pass on a pay increase that occurred while the employee was on long service leave;
- fails to pay an accrued long service leave entitlement on termination of employment;
- fails to pay an accrued long service leave entitlement on the employee’s death;
- pays an employee in lieu of allowing the employee to take long service leave as a paid break from work;
- knowingly employs a person while that employee is on long service leave from employment with that employer or another employer in relation to the hours for which they are taking the leave;
- fails to maintain correct long service leave records or to keep those records for at least seven years after the employee stops working for the employer;
- makes a false or misleading statement in a long service leave record;
- fails to provide information or documents to an authorised officer in accordance with a notice to produce;
- provides a false or misleading document to an authorised officer;
- refuses an employee’s request to be provided with a copy of a long service leave record relating to the employee; or
- takes adverse action against an employee because they have or exercise an entitlement under the Act or make an enquiry about such an entitlement.
Penalties may apply where an employee:
- accepts payment in lieu of taking long service leave as a paid break from work
- works while on long service leave of this guide for information on the rules that apply when an employee has more than one job).
Most offences under the Act attract a penalty of 12 penalty units for natural persons and 60 penalty units for a body corporate.
Prosecution time limits
Strict time limits apply to enforcement by the Wage Inspectorate of an employer’s obligations under the Act. If a dispute arises as to allegedly unpaid entitlements, seek advice without delay.
Information on long service leave can be obtained from the Wage Inspectorate on 1800 287 287.
Can directors or company officers be personally liable for a corporation’s breach of the act?
Yes. Under the Act, an officer of a body corporate may be liable for the conduct of the body corporate where the officer authorised or permitted the conduct or was knowingly concerned in any way (whether by act or omission).
If found guilty, the officer would then be liable for penalties and/or criminal conviction, in the same way as the body corporate.
However, it is not necessary that the body corporate first be prosecuted or found guilty of an offence, for a natural person, or officer, such as a director, to be found guilty of that offence. In some circumstances, the body corporate may have wound up and no longer exist.
Can a corporation be liable for the conduct of a director, employee or agent of the body corporate?
Yes. Conduct of an officer, employee or agent acting within their actual or apparent scope of employment or apparent authority is also taken to be conduct of the body corporate itself.
Penalties for failure to keep records under the Act
An employer must keep accurate long service leave records for employees during the entire period of their employment, and retain these records for at least seven years after the employment ceases.
The Act defines a long service leave record to include any register, certificate, notice, pay sheet or other document relating to an employee's long service leave entitlement. In order to comply with your obligations, records should include relevant information that demonstrates the following:
- the calculation of ordinary pay
- continuity of employment, highlighting any gaps in service
- any changes in business ownership
- any leave periods taken, including any periods of long service leave.
The FW Act, which applies to all Victorian businesses, also requires an employer to keep certain employment records and to provide payslips to employees.
It is an offence to fail to keep records in the manner prescribed by the Act. The penalty for this offence is 12 penalty units for a natural person, and 60 penalty units for a body corporate. If an employer is found guilty of this offence, a criminal conviction may also be recorded.
An employer must not refuse a request from an employee (or their personal representative) or an authorised officer of the Wage Inspectorate to produce the employee’s long service leave records. The penalty for this offence is 12 penalty units for a natural person, and 60 penalty units for a body corporate.
What happens if an employee is owed long service leave and the employer fails to pay?
Taking legal action to recover long service leave - civil remedies
An employee can seek recovery of money owed for long service leave entitlements under the Act by making a civil claim in the Industrial Division of the Magistrates’ Court. An order made by the Court in the employee’s favour may include a requirement that the employer pay the employee in respect of their long service leave, with interest. The civil claim must commence within six years of the employee’s entitlement arising – usually being the date employment ends. In this type of application, the employee would be alleging that the employer failed to pay the long service leave entitlement on termination.
Employees may ask an organisation registered under the FW Act (for example, a union) to act to recover money on their behalf. They may make such a request if they are a member of the organisation or eligible to be a member. If an employee is deceased, their estate may make a claim on their behalf.
The Industrial Division of the Magistrates’ Court issues practice notes which provides guidance on procedures for Procedure in the Industrial Division (Civil Jurisdiction) for civil claims and can be found at mcv.vic.gov.au.
Criminal prosecution
If an employer fails to pay the full amount of an employee’s long service leave entitlement on the day employment ends, the employer may be prosecuted in the Industrial Division of the Magistrates’ Court for a criminal offence. Only the Wage Inspectorate or an authorised officer may bring a prosecution. Unions and other employee groups cannot bring a criminal prosecution.
If an employer is found guilty of failing to pay a long service leave entitlement, the employer may be fined an appropriate penalty and may also have a criminal conviction recorded against them.
The penalty for this offence is 12 penalty units for a natural person and 60 penalty units for a body corporate. These penalties apply for every day during which the offence continues, which may result in a significant fine.
If the employer is found guilty, the Court may also order that the employer pay the outstanding long service leave entitlement to the employee and may also order that interest be paid.
Adverse action against employees prohibited
What is adverse action?
Adverse action is defined in the Act to mean:
- dismissing an employee
- injuring an employee in their employment
- altering the position of an employee to their prejudice
- discriminating against the employee
- knowingly or recklessly making a false representation about an employee’s long service leave entitlements.
It is an offence under the Act for an employer to take adverse action against an employee because:
- the employee has an entitlement under the Act; or
- the employee seeks to exercise an entitlement under the Act
- the employee enquires about their entitlements under the Act
- the employee challenges a direction to take long service leave in the Magistrates’ Court.
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