Whether Leave Counts As Service

Miscellaneous leave guidelines

Approved by the FAC, ATO People, 14December 2011.
Overview
Miscellaneous leave may be granted where it is in the interests of the Australian Taxation Office (ATO) and leave is not available under any other specific leave arrangement.
The guidelines provide the criteria and conditions relating to specific reasons for the leave. It addresses a range of reasons that are in the interests of the ATO; specific circumstances previously covered by Public Service Determination 10 of 1983 (now repealed); and enables delegate to grant leave beyond these guidelines where they consider circumstances warrant.
Leave with pay counts as service for all purposes; unpaid leave does not unless the delegate determines that it will and exactly what purposes for which it will count. If an employee does not resume duty at the end of a period of the miscellaneous leave it will not count as service.
Long periods of leave are not available to probationers or employees participating in a graduated return to work plan.
Where an employee intends to undertake outside employment during a period of leave, they are required to provide notification of outside employment.
Managers' responsibilities
·  You must understand your responsibilities as a delegate under these guidelines and any specific provisions or conditions relating to the circumstances of a leave application.
·  Before you make a decision about miscellaneous leave check that you hold the relevant delegation. For managers and directors your delegation is limited to approving a maximum of one month of leave with pay, or 12 months without pay.
·  Your decisions need to take account of the individual circumstances of the situation, the guidelines, operational requirements and the enterprise agreement's requirements that any leave granted is for a purpose that is in the interests of the ATO.
·  Your decisions must comply with the Good decision-making model.
·  You must be satisfied that you have enough information to make an informed decision. Where insufficient information has been provided, you can request further information in support of the application.
·  You are required to provide your written decision for leave application (note: minimum requirements apply).
Employees' responsibilities
·  Before applying for miscellaneous leave consider whether another type of leave is more relevant to the situation.
·  Unless emergency or unforseen circumstances are involved, written applications are to be forwarded to your delegate with enough time to allow time for proper consideration and any consequential operational impacts/arrangements to be managed.
·  Ensure the delegate is provided with all necessary relevant details.
·  In emergency or unforseen circumstances, employees must notify a manager as soon as practicable of their absence and seek approval of their leave from their manager.

Purpose

These guidelines provide guidance to delegates and employees about leave under clause 106 of the ATO enterprise agreement. This clause allows for miscellaneous leave to be granted if leave is not available under any other specific leave arrangement and the grant is in the interests of the ATO.
While the agreements require that miscellaneous leave be for purposes that are in the interests of the ATO, some of the reasons for leave listed below are included because of a commitment made by the Commissioner that these guidelines would have regard to the leave types previously listed as separate leave types in Public Service Determination 10 of 1983 (now repealed).

Eligibility

These guidelines apply to all employees covered by the ATO enterprise agreement and are effective from 14December 2011.

General

These guidelines cover specific reasons for miscellaneous leave as well as reasons of a more general nature. They provide the criteria that should be satisfied in order to have the leave approved, and the conditions attached to the approval.
As miscellaneous leave encompasses a very wide range of possible reasons for leave, these guidelines may not provide definitive responses to all possible requests. Delegates will need to exercise their discretion in relation to applications for miscellaneous leave for reasons other than those specifically mentioned in these guidelines. Decisions need to take account of the individual circumstances of the situation, these guidelines, operational requirements and the requirement of the enterprise agreement that the leave be granted for a purpose that is in the interests of the ATO.
While there may be exceptional circumstances where the delegate considers there is sufficient reason to approve leave outside of these guidelines (including periods of leave that exceed these guidelines), the delegate must show that:
1.  the leave, including the reason for the leave and/or any other variations from these guidelines, is in the interests of the ATO; and
2.  the leave reason is not covered by another specific leave arrangement.
In respect of (2) it may be appropriate to grant miscellaneous leave without pay for a situation generally covered by another specific leave arrangement, but where the particular employee does not qualify for this leave arrangement. However, it would usually not be appropriate to grant miscellaneous leave, especially if with pay, to circumvent a specific leave arrangement.
Example:
Non-ongoing employees need to take other forms of leave if their jury service exceeds 10days. If some other kind of paid leave is unavailable, for example, a flexible absence or annual leave, or the employee does not wish to use these leave types, it would be appropriate to approve miscellaneous leave without pay. The employee should be released for jury service and therefore the test of ATO interest is met. However it would not be appropriate to grant paid miscellaneous leave as this would be contrary to our enterprise agreement leave provisions.
An employee may apply for miscellaneous leave for recreational purposes. Annual leave is another specific leave arrangement that is generally used for this purpose. Generally, if an employee has annual leave credits, they should be using annual leave before or in conjunction with miscellaneous leave (see Leave for other reasons). However if the employee does not have annual leave credits (or wants to supplement their annual leave to have a longer break) granting miscellaneous leave without pay would be appropriate, provided operational requirements and other factors have been weighed up against the ATO interest of helping an employee to refresh themselves and balance career and personal needs. Miscellaneous leave with pay would be inappropriate as this would circumvent the annual leave credit provisions.
Considering other types of leave
As miscellaneous leave is leave not covered under any specific leave arrangement, before an employee applies for, or a delegate approves, miscellaneous leave, consideration should be given to whether another type of leave is more relevant to the situation.
Annual leave
For miscellaneous leave without pay, especially if longer term and/or for personal/recreational purposes, it would be appropriate for delegates to review annual leave usage and consider requiring applicants use credits either before or in conjunction with miscellaneous leave. Employees who have unused annual leave credits before proceeding on long term leave should note that they may be directed to take annual leave on their return to work. (See Maximum amount of annual leave for further information.)
Personal leave
Sub-clause 97.42 of the ATO enterprise agreement precludes leave for sick or caring purposes from being approved under miscellaneous leave provisions. This means that miscellaneous leave with or without pay cannot be granted if an employee has insufficient personal leave credits. Instead unpaid personal leave should be used. However this does not preclude an employee applying for unpaid miscellaneous leave for personal/other reasons following or during illness or for caring needs that do not fit within personal leave criteria.

Whether leave counts as service

Miscellaneous leave may or may not count as service for any of the following purposes:
·  annual leave
·  long service leave
·  personal leave
·  salary advancement
In relation to these guidelines:
·  all leave with pay counts as service for all purposes provided that the employee resumes duty at the end of the leave
·  unpaid leave does not count as service for any purpose unless the delegate specifically approves the unpaid leave to count as service. Where this authority is being exercised the delegate must specify, in writing, for what purposes and for what period the leave is to count as service.
If leave counts for service it means that annual, personal and/or long service leave (as the delegate determines) will continue to accrue during the period of miscellaneous leave and/or the salary advancement due date is not affected.
If the leave does not count as service, the accrual date for personal leave, annual salary advancement due date and annual leave and long service leave credits will be affected where a total of more than 30calendar days of unpaid leave, not to count as service, are taken in an accrual year. However for most non-ongoing employees, any amount of leave not to count as service will defer their personal leave accrual.
Where a period of leave is granted to count for personal leave purposes the employee continues to accrue personal leave as if they were not on leave. These accrued credits are reduced by the sum of periods of personal leave granted in other employment, on account of illness. If these records are not available, the accrued credits are reduced by nine hours for each three months of leave. Personal leave clauses in the enterprise agreement set out the basis for these reductions.
Guidance is provided in this document as to whether leave should be granted to count or not to count as service under each of the circumstances involving unpaid leave.
Over and above the employee’s absence on miscellaneous leave, counting leave without pay as service involves considerable cost, as well as equity issues for other employees taking leave in similar situations.
/ A decision to grant leave to count as service for any reason, except as provided for in these guidelines, would need strong justification, particularly in terms of the interest and benefit to the ATO.

Superannuation

Employees who are members of the CSS or PSSdb
The PSSdb and CSS schemes detail when leave will count as service for superannuation purposes and whether employees are required, or allowed, to make contributions for a given period of leave based on the reason for the leave and, in some cases, the duration. The ATO uses fortnightly contribution salary (FCS) as the basis for contributions for the PSS Accumulation Plan and other accumulation plans and therefore PSS rules regarding leave and contributions will apply to those super funds as well.
Contributions are required for all periods of paid leave and for periods of unpaid leave up to 12 weeks duration. Essentially, the superannuation legislation states that contributors granted leave without pay for periods exceeding 12 weeks are not permitted to make superannuation contributions during that period. Employees can get more information from Comsuper (external website), or by phoning their advisory service on 1300000177.
Where an employee is granted leave without pay for private purposes or for study for a period exceeding 12 weeks the PSS and CSS allow the period of leave to count as service for superannuation purposes at the employer's discretion and only where the employer (the ATO) continues to pay the employer superannuation contribution. These contributions are a considerable cost to the ATO and the decision to continue to pay them during a period of leave without pay must only be made where it is clearly in the ATO’s interest to do so. During such periods of leave, the employee is not permitted to elect a zero (0) contribution.
Payment of the employer contribution for leave to study will only be considered where the leave is granted under clause 137 of the ATO enterprise agreement (leave for full time studies), and not under the miscellaneous leave provisions.
The agreement to pay the employer superannuation contribution for leave without pay for private or study purposes can only be made by the national program manager (NPM) for employees under their control.
Employees who are members of the PSSAP or another accumulation plan
The basis for superannuation contributions for employees who are members of the PSSAP or another accumulation plan is Ordinary Times Earnings. If the miscellaneous leave is with pay it will be included in the salary for superannuation contributions.

Applications for leave

Unless emergency or unforseen circumstances are involved, applications for miscellaneous leave are to be made in writing and are to be forwarded to the relevant delegate as far in advance as practical. Applicants should note that it is in their interest to provide all necessary relevant details and to apply sufficiently early to allow time for proper consideration of the request and any consequential operational impacts/arrangements.
In emergency/unforeseen cases, employees must notify a manager as soon as practicable of their absence and seek approval for leave from their manager. The application for leave should then be made as soon as practicable or immediately after returning to work.
All applications must be lodged through the ATO SAP Portal (ESS) (where possible). In situations where the ATO SAP Portal (ESS) is not available or where the leave involves the question of whether the leave is to count as service or is subject to conditions, an email to the People Helpline is required. A SAP application or an email satisfy the ‘in writing’ requirement. The delegate may request further information in support of the application.

Notification to employee

Delegates are required to advise employees in writing of the decision in relation to the leave application. The advice should include:
·  whether the leave has been granted as requested and, if not, the reasons why the leave has not been granted as requested
·  the period of leave including commencement date and cessation date
·  whether the leave is with or without pay
·  whether the leave counts for service or not, and if so for what purposes
·  any conditions attached to the grant of leave
Decisions recorded through the ATO SAP Portal (ESS) will be taken as meeting the in writing requirement. This may include a decision not to approve short periods of leave provided the rejection reasons are recorded.
An email message also meets the in writing requirement. An email or other written format will be necessary where the period of leave is longer, involves any conditions, or in the case of leave without pay, if it is being counted for any type of service. A copy of the leave approval notification must be forwarded to the People Helpline. Unless it is unavailable, the ATO SAP Portal (ESS) must still be used to record and approve the leave.
If a formal leave application is refused the delegate must retain a copy of the notification to the employee for 12 months.

Probationers

Long periods of leave should not be granted to probationers as this defeats the purpose of probation. Further information on probation can be found in Recruitment and selections PS CM 2009/01 or the Probation in the ATO - a team leader's guide.

Graduated return to work rehabilitation plan

Long periods of leave usually should not be granted to employees participating in a graduated return to work plan because this may undermine the rehabilitation process. Leave requests must be discussed with the relevant case manager before approval.

Extensions of miscellaneous leave

Delegates may approve applications for extensions of miscellaneous leave subject to the limitation on their delegated authority. Extension requests should be considered in the light of these guidelines, which include guidance on maximum periods. The delegate must also consider whether an extended period of leave would continue to meet the test of ATO interest. If leave without pay prior to the extension counted as service, the continuation of this condition must be reviewed.

Resumption of duty

Employees must resume duty at the end of the period of leave unless further leave has been approved.
For any miscellaneous leave (with or without pay) to count as service, the employee must resume duty in the APS at the conclusion of the period of leave. Refer Clause 106.5 ATO enterprise agreement. Even if the leave was approved to count as service, if the employee does not resume duty at the end of the leave the entire period of the miscellaneous leave will not count as service.

Reviewing decisions