# Long service leave for a Victorian employee of a national-system employer

*This is a benchmarking hypothetical, not legal advice. The law is stated as at FY2025-26.*

## Short answer

The employee's long service leave (LSL) is governed by **State law**, not Commonwealth (federal) law. The level of government whose law applies is the **State of Victoria**, and the specific statute is the **Long Service Leave Act 2018 (Vic)**.

Being employed by a national-system employer under the *Fair Work Act 2009* (Cth) does **not** push the entitlement onto a federal scheme. There is no single national LSL figure that applies uniformly across Australia, because LSL is set jurisdiction by jurisdiction by the States and Territories, and the rules (qualifying period, accrual rate, pro-rata thresholds) differ between them.

## Why State law, not federal

It is natural to assume that because the *Fair Work Act 2009* (Cth) is the national workplace relations law and the employer is a "national-system employer", every entitlement must come from the Commonwealth. For LSL that assumption is wrong, for two related reasons.

**1. The Fair Work Act deliberately does not provide a general LSL standard; it preserves State and Territory LSL laws.**

LSL sits in the National Employment Standards (NES) only in a transitional, deferential way. The NES does not set out a free-standing federal LSL entitlement with its own qualifying period and accrual rate. Instead, under the Fair Work Act:

- The LSL provision in the NES (s 113) keeps in force the LSL entitlement that applies under an "applicable award-derived" or "applicable agreement-derived" long service leave term, and otherwise leaves the entitlement to be determined elsewhere. It is not a self-contained national formula.
- The Act's interaction rules (s 27, the provision dealing with State and Territory laws that are *not* excluded) **expressly carve out long service leave** from the laws that the Fair Work Act would otherwise override. Section 27(2)(g) lists long service leave among the State and Territory laws that continue to operate alongside the federal scheme.

The combined effect is that, for most national-system employees who are not covered by a preserved award-derived or agreement-derived LSL term, the operative LSL entitlement is the one in the **State or Territory long service leave statute** that applies to their employment. The federal scheme makes room for State law rather than displacing it.

**2. LSL has historically been, and remains, a State and Territory matter.**

Long service leave originated and developed as State legislation, and that allocation was preserved when the national system was built. Each State and Territory runs its own LSL Act. So the question "how much LSL, and on what terms?" is answered by the law of the place where the relevant employment is governed - here, Victoria - not by a single Commonwealth standard.

## The applicable Victorian law

For this employee, working in Victoria, the governing statute is the:

> **Long Service Leave Act 2018 (Vic)**

That Act sets the Victorian terms - among them, that an employee becomes entitled to take LSL after **7 years** of continuous employment, accruing at a rate that works out to **1/60th of the period of continuous employment** (broadly, about 8.667 weeks of leave for each 10 years of service), with a pro-rata entitlement payable on the end of employment once the employee has completed **at least 7 years** of continuous service. (Figures stated for orientation only; the Act and its definitions of "continuous employment" and "ordinary pay" govern the exact calculation.)

## Why there is no single national figure

Because each State and Territory legislates its own LSL, the headline numbers differ across the country. As illustration, the standard qualifying period for a full entitlement is **7 years in Victoria** under the *Long Service Leave Act 2018 (Vic)*, but it is **10 years** in most other jurisdictions (for example New South Wales under the *Long Service Leave Act 1955 (NSW)*), and the pro-rata-on-termination thresholds and accrual mechanics also vary. Quoting one Australia-wide LSL number would therefore be wrong: the correct entitlement depends on the jurisdiction whose law applies.

## How to work it out (decision path)

1. **Is there a preserved federal LSL term?** Check whether the employee is covered by an applicable *award-derived* or *agreement-derived* LSL term that the Fair Work Act (s 113 NES) keeps in force. If yes, that term governs.
2. **If not, apply the relevant State/Territory LSL Act.** For employment in Victoria, that is the **Long Service Leave Act 2018 (Vic)**, which the Fair Work Act preserves via s 27(2)(g). Apply its qualifying period (7 years), accrual rate (1/60th of continuous service), continuous-employment rules, and ordinary-pay definition to compute the entitlement.

## Bottom line

- **Level of government:** the **State** government - here, **Victoria**.
- **Governing law:** the **Long Service Leave Act 2018 (Vic)** (subject to any preserved award- or agreement-derived LSL term under s 113 of the Fair Work Act).
- **Not** a single uniform national figure - LSL terms differ between the States and Territories, so the entitlement must be worked out under the applicable State/Territory law, not a Commonwealth-wide standard.

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### Note on approach

The task is a jurisdiction question dressed as a calculation question, and the trap it sets is the natural inference that a "national-system employer" under a Commonwealth Act means a Commonwealth entitlement. I anchored the answer on the one thing that resolves it: the Fair Work Act does not provide a general national LSL standard and, through s 27(2)(g) and the deferential NES provision (s 113), it preserves State and Territory LSL laws. From there the answer is determined by location of employment (Victoria), pointing to the *Long Service Leave Act 2018 (Vic)*. I named the level of government explicitly (State / Victoria), refused to give a single uniform national figure (instead contrasting Victoria's 7-year threshold with the 10-year norm elsewhere to make the point that LSL is set jurisdiction by jurisdiction), and laid out a short decision path (preserved federal term first, otherwise the State Act) so the reasoning is checkable. Statutory specifics (the 7-year qualifying period and 1/60th accrual in Victoria) are included for orientation, flagged as governed by the Act's own definitions rather than presented as a precise computed figure.