A recent Fair Work Commission (FWC) decision highlights the importance of how enterprise agreements are drafted, after an employer was ordered to make superannuation contributions for employees taking portable long service leave.
In short: An enterprise agreement can require superannuation contributions during portable long service leave, independently of superannuation guarantee legislation. Employers should review their agreement’s wording before treating the absence as unpaid leave for superannuation purposes.
While the decision is based on specific circumstances under a Victorian-based enterprise agreement, CCIWA Construction and Mining IR Services Manager Kate Schick said, "it puts construction contractors that contribute to MyLeave on notice".
“Construction employers should check if their enterprise agreements require superannuation contributions when employees take long service leave, even when a separate industry fund pays the leave entitlement," she said.
What is portable long service leave?
Portable long service leave is a paid leave scheme that follows workers within certain industries, allowing them to keep building their long service leave entitlement even when they change employers, unlike standard long service leave which is tied to one employer.
The FWC’s decision
As outlined in our Spring 2026 Construction Services Quarterly Industry Report, the dispute involved employees receiving portable long service leave payments through LeavePlus, Victoria’s equivalent of MyLeave.
The employer argued the employees were on unpaid leave from the company and were therefore not entitled to employer superannuation contributions during that period.
However, its enterprise agreement required contributions to continue during paid long service leave and did not distinguish between conventional and portable long service leave.
Commissioner Julia Fox found the employees were taking paid leave under the agreement, despite receiving payment through LeavePlus. The company was therefore required to continue making superannuation contributions.
It came down to the enterprise agreement
The employer relied on Australian Taxation Office guidance concerning portable long service leave payments under superannuation guarantee legislation.
The Commission found that guidance did not resolve the dispute because the obligation arose under the enterprise agreement.
The distinction is important: an agreement may create a payment obligation beyond the statutory superannuation guarantee requirements.
What should WA employers check?
The decision concerns a specific Victorian enterprise agreement. It does not automatically mean every WA employer must pay superannuation when an employee accesses MyLeave.
However, it is a timely reminder to:
- Review agreement clauses: Check how superannuation, paid leave, unpaid leave and long service leave are defined
- Check payroll practices: Ensure the treatment of portable long service leave reflects the applicable agreement
- Review potential historical exposure: Seek advice if contributions may have been missed
- Clarify future drafting: Ensure proposed agreement wording accurately reflects the intended obligations
Employers should also establish what payment information is needed to calculate any contributions and how it can appropriately be obtained.
For help reviewing your enterprise agreement or managing portable long service leave obligations, contact our Construction and Mining IR Services team.
