# Long Service Leave for a Victorian Employee of a National-System Employer

## Which law governs?

Long service leave is **not** set by a single uniform national standard. Although the employee works for a national-system employer covered by the **Fair Work Act 2009 (Cth)**, that Act does **not** contain a substantive long service leave entitlement of its own. Instead:

- The National Employment Standards (NES) include long service leave only as a **transitional entitlement** (s 113 of the Fair Work Act), which preserves long service leave terms from certain pre-modern awards (pre-2010 award-derived long service leave terms) where they applied.
- For most employees, s 113 simply operates to **pick up the applicable State or Territory long service leave law**.

## The level of government whose law applies

For this employee, the governing law is **State law** — specifically, the law of **Victoria**.

The applicable statute is the **Long Service Leave Act 2018 (Vic)**. Because the employee works in Victoria, this Victorian Act sets out:

- the qualifying period of continuous employment (under the Victorian Act, an entitlement to take leave arises after **7 years** of continuous employment with one employer);
- the rate of accrual (**1/60th of the period of continuous employment**, i.e. roughly 6.1 weeks after 7 years);
- rules on continuity of employment (e.g. treatment of parental leave, transfers of business, casual and seasonal employment); and
- payment on termination for accrued but untaken long service leave after the qualifying period.

## Caveats

- If a **pre-modernisation federal award** contained long service leave terms that applied to the employee immediately before 1 January 2010, those terms may continue to apply via s 113 of the Fair Work Act instead of the Victorian Act.
- Some industries have **portable long service leave schemes** (in Victoria, under the Long Service Benefits Portability Act 2018 (Vic) for community services, contract cleaning and security), and construction workers may be covered by CoINVEST.
- An enterprise agreement cannot exclude the Victorian statutory entitlement unless it provides for it in a way the State law permits.

**Summary:** The entitlement is governed by **Victorian State legislation — the Long Service Leave Act 2018 (Vic)** — not by a uniform Commonwealth standard. The relevant level of government is the **State (Victoria)**, with the Commonwealth Fair Work Act operating only to preserve certain transitional award-derived entitlements.