Game changer for portable long service leave

The AWU Victoria has won a decision at the Fair Work Commission that changes the rules for construction workers across Victoria. Super must be paid on portable long service leave. Downer EDI got it wrong. Thousands of workers are getting superannuation back pay, and the contributions keep coming from here. This is not a technical win buried in a decision no one reads. This is money back in members’ retirement savings, and a precedent that reaches well beyond one company.

Portable long service leave in Victorian construction runs through the LeavePlus scheme, which either pays workers directly while they take their leave or reimburses the employer. Downer’s argument was that because the money came from the scheme rather than from the company, workers were on unpaid leave and no super was owed.

Clause 20.6 of Downer’s 2024 Victorian road maintenance agreement says super keeps being paid while a worker is on paid leave, covering annual leave, personal leave, long service leave, public holidays, jury service and bereavement leave. Downer reached for clause 20.6(b), the unpaid leave exclusion, and tried to shove portable long service leave into it. Our members raised it, and the AWU took Downer to the Commission.

Commissioner Julia Fox knocked every argument over. She found the agreement makes no distinction between long service leave and portable long service leave. It is paid leave, and super is payable on it. The unpaid leave exclusion does not apply, because that clause is about absences without pay, and a worker drawing their entitlement through LeavePlus is not absent without pay. They are being paid.

Long service leave is a paid entitlement under the Construction Industry Long Service Leave Act, and the Commissioner said it would be inconsistent for workers to keep accruing other entitlements under that Act while on portable long service leave but miss out on super. Why it matters beyond Downer is that this decision turns on the words in the agreement, and those words are not unique to one company. Agreements right across the construction industry treat long service leave as paid leave in the same way. Every employer running the same line is now on notice, and every worker covered by a similar clause has an argument.

Construction Organiser Joel said the decision would be felt across the industry. “This one is a game-changer. Downer told our members they were on unpaid leave, and anyone who has worked a day in this industry knows that is rubbish. You earn portable long service leave through years on the tools, and you should not be going backwards on your retirement to take it. Our members raised it, the union ran it, and the Commission agreed. And it will not stop with Downer. There are agreements all over this industry with the same clause in them.”

AWU members raised it, delegates and organisers backed it, and we took it all the way. Every member collecting that back pay is collecting it because they are part of something bigger than themselves. We are stronger together.