Today’s correspondent has a question about transferring leave between NSW and Tasmania.  They say:

I was working for NSW Ambulance for 12years. At the start of the year, I decided to transfer interstate to Tasmania, working for Ambulance Tasmania. Before I left NSW, I received advice from NSW Health payroll that my sick leave entitlements would be recognised by Tas Dept of Health. 

Upon moving down here, payroll in Tasmania have provided advice outlining a number of different polices/ act/ legislation regarding criteria for eligibility to transfer sick leave (portability of sick leave credits). 

Ministerial Direction No. 1.1-2002 (18 Feb 2002) deals with portability of sick leave. It states (at pp 9-10):

“Where a person, immediately before becoming a State Service employee, was employed by a State Authority [as defined in section 3 of the Long Service Leave (State Employees) Act 1994] 

(i) that period of employment shall be treated as if it were a period of employment as a State Service employee for the purposes of calculating sick leave entitlements; and

(ii) any sick l eave granted to him/her during that period shall be treated as if it were leave of absence granted to him/her as a State Service employee.”

Definition (under the LSL act)- An employee who was employed by the commonwealth, or another state or a territory of the commonwealth…” 

I would of thought that’s my situation and therefore my sick leave should transfer. I note that they have accepted my eligibility for long service leave has transferred.

First, it is not up to NSW Ambulance to say whether sick leave/LSL will be credited by Ambulance Tasmania so the advice from NSW Ambulance is irrelevant.

My correspondent has quoted what they say is the definition under the Long Service Leave (State Employees) Act 1994 (Tas) (the LSL Act) but I that is not correct. The quote is from s 9 which I will come to later. 

Sick leave

The LSL Act s 3 defines an employee as:

… a State Service officer, State Service employee or any other person who is employed in any capacity by a State authority or a prescribed employer as a full-time employee or a part-time employee and includes–

(a) a person so employed whose terms and conditions of employment are prescribed by an industrial award; and

(b) a person appointed under the Parliamentary Privilege Act 1898

The term ‘State Authority’ means (emphasis added)

(a) any person appointed by the Governor under any Act; or

(b) any body constituted or established under any Act –

to administer any department, business or undertaking on behalf of the State;

The Acts Interpretation Act 1931 (Tas) s 43(1) says that the term ‘state’ means ‘a State of the Commonwealth’ but the LSL Act refers to ‘the’ state, not ‘a’ state.  Section 43(1A) of the Acts Interpretation Act says that ‘In any Act, a reference to the State, this State or Tasmania is a reference to the State of Tasmania and its dependencies’.]

So, notwithstanding the definition of the word ‘state’, the reference to ‘the state’ in the definition of state authority means it is limited to Tasmanian state authorities.  NSW Ambulance is not a relevant ‘state authority’.  Accordingly, my correspondent’s service with NSW Ambulance was not service with ‘a State Authority [as defined in section 3 of the Long Service Leave (State Employees) Act 1994]’ and their sick leave entitlements will not transfer.

Long Service Leave

The entitlement to Long Service Leave is dealt with differently. Section 9 of the LSL Act says 

An employee who–

(a) was employed by the Commonwealth or another State or a Territory of the Commonwealth; and

(b) became an employee within 3 months after ceasing to be so employed–

is entitled to be credited with up to 65 days of the long service leave the employee would have been entitled to or eligible for if the employee had not ceased to be so employed and if the employee has not received any payment in respect of that long service leave.

That is not a definition of the term ‘employee’.  The definition of employee is in s 3 and is quoted above. in short, it is an employee of a Tasmanian state authority. What s 9 says is that an employee of a Tasmanian state authority who was previously employed by the Commonwealth or another state is entitled to carry over their Long Service Leave entitlement.  Section 9 is not defining the term ‘employee’ for other purposes, it is saying that a current employee who meets other criteria – was previously employed by the Commonwealth or another state – can transfer their long service leave. This section has no impact on the analysis for sick leave, above. 

Conclusion

A person transferring from NSW Ambulance to Ambulance Tasmania could expect that their long service leave entitlements will transfer; their sick leave entitlements will not.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.