## Long service leave: which law governs it, and why there is no single national figure

Long service leave (LSL) is the unusual entitlement that, for most employees, is **not** set by the Fair Work Act 2009 (Cth) at all. Being a national-system employer covered by the Fair Work Act does not mean a single, uniform LSL figure applies to your workforce across Australia. The entitlement, and the precise amount, turn on **where the employee is located** (the state or territory whose LSL law applies to their employment).

### Which level of law actually governs LSL

For the great majority of national-system employees, LSL is governed by the **long service leave law of the relevant state or territory**, not by the National Employment Standards (NES) in the Fair Work Act.

The reason is a deliberate carve-out in the Fair Work Act:

- The NES (Part 2-2) lists LSL as a minimum standard, but section 113 essentially **preserves the operation of state and territory LSL laws** as "applicable award-derived" or otherwise applicable long service leave terms. In practical terms, the Act points back to the state/territory LSL statutes rather than setting its own across-the-board entitlement.
- So even though you are a national-system employer, the actual accrual rate, qualifying period, and rules for cashing out or pro-rata payment on termination come from the **state or territory legislation** that covers each employee.

There are limited exceptions to be aware of:
- A small number of employees are covered by **pre-modern-award LSL terms preserved in the Act** (legacy "award-derived" or "agreement-derived" entitlements), and
- Some industries have their own **portable/federal LSL schemes** (for example, the **Coal Mining Industry (Long Service Leave) scheme** under federal law, and **portable LSL schemes** for sectors such as construction, cleaning, and community services run by state authorities).

But for ordinary employees, the default position is: **the applicable state or territory LSL Act governs**.

### Why there is no single uniform figure that applies the same way everywhere

Because LSL is set by eight separate state and territory regimes, the entitlement differs by jurisdiction. The two figures that vary most are (a) the **qualifying period** before an entitlement arises and (b) the **amount of leave** that accrues. These genuinely differ from place to place, for example:

- The **length of continuous service** required before LSL is payable differs (commonly in the range of around 7 to 10 years for a first entitlement, depending on the jurisdiction).
- The **rate of accrual / amount of leave** differs (for instance, some jurisdictions provide a set number of weeks after a set number of years, with further accrual thereafter; the actual weeks-per-period figure is not the same in every state and territory).
- The rules on **pro-rata payment on termination** (after how many years, and on what cessation grounds) also differ between jurisdictions.

So the correct answer to "is one figure the same everywhere?" is **no**. There is **no uniform national long service leave entitlement that applies the same way across the whole country**. Stating a single national LSL figure would be wrong.

### How to work out a given employee's entitlement

1. **Identify the employee's location / the jurisdiction whose LSL law applies** (generally the state or territory where the employee works; for mobile or interstate work, the connecting jurisdiction must be assessed under the relevant Act).
2. **Check whether a special scheme applies** instead of the general state/territory Act, for example the federal coal mining LSL scheme or a portable LSL scheme for that industry.
3. **Apply that jurisdiction's LSL Act** to determine the qualifying period, the accrual rate / amount of leave, the rate of pay (ordinary pay vs averaging rules), and the pro-rata-on-termination rules.
4. Only fall back to the **preserved NES/award-derived LSL terms** in the Fair Work Act if the employee is in the narrow category covered by those preserved entitlements rather than a state/territory Act.

**Bottom line:** As a national-system employer you are covered by the Fair Work Act, but LSL for most of your employees is set by **state and territory law (with limited federal/portable exceptions)**. There is **no single national figure** - the entitlement depends on each employee's location, so it must be worked out under the LSL law of that particular state or territory.