# Which Law Governs Long Service Leave for This Employee

## Short Answer

The employee's long service leave entitlement is governed by **Victorian state law** — specifically the ***Long Service Leave Act 2018* (Vic)** — enacted by the **State** of Victoria.

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## Why Not the Fair Work Act?

A common misconception is that the *Fair Work Act 2009* (Cth), as the national industrial relations framework for national-system employers, also sets long service leave entitlements. It does not.

The *Fair Work Act* establishes the **National Employment Standards (NES)** in Part 2-2. Although the NES cover entitlements such as annual leave, personal/carer's leave, and notice of termination, long service leave is deliberately excluded from the NES as a substantive entitlement. Instead, **section 113** of the *Fair Work Act* expressly **preserves** the operation of state and territory long service leave laws. It provides that an employee is entitled to long service leave in accordance with the applicable state or territory law, and that nothing in the NES limits those rights.

This means the fact that the employer is a "national-system employer" covered by the *Fair Work Act* does **not** displace Victoria's long service leave legislation.

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## The Governing Law: *Long Service Leave Act 2018* (Vic)

Because the employee works **in Victoria**, the applicable law is the ***Long Service Leave Act 2018* (Vic)**, which came into force on 1 November 2018 and replaced the earlier *Long Service Leave Act 1992* (Vic).

| Feature | Detail |
|---|---|
| **Level of government** | **State** (Victorian Parliament) |
| **Jurisdiction** | Victoria |
| **Statute** | *Long Service Leave Act 2018* (Vic) |
| **Administered by** | Wage Inspectorate Victoria |

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## How the Entitlement Is Calculated Under the 2018 Act

Under the *Long Service Leave Act 2018* (Vic) the core formula is:

> **Long service leave = 1/60th of the employee's period of continuous employment**

### Threshold for access

| Trigger | Effect |
|---|---|
| **7 years** of continuous employment | Employee becomes entitled to take (or be paid out on termination for) long service leave accrued to that point |
| Resignation or dismissal after **7 years** | Employee is entitled to a pro-rata payment |
| Dismissal on grounds of serious misconduct before 7 years | Generally no entitlement |

### Quantum example

An employee with **10 years** of continuous employment has accrued:

$$\frac{10}{60} \text{ years} = \frac{1}{6} \text{ year} \approx 8.67 \text{ weeks}$$

An employee with **7 years** of continuous employment has accrued:

$$\frac{7}{60} \text{ years} \approx 6.07 \text{ weeks}$$

Leave is taken on **ordinary pay** (or the rate applicable under any applicable award or enterprise agreement if higher).

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## Summary

The **State of Victoria** (not the Commonwealth) governs this employee's long service leave. The Commonwealth *Fair Work Act* explicitly steps aside and preserves Victoria's legislation. The employee's rights are therefore determined solely by the *Long Service Leave Act 2018* (Vic), which provides an accrual of one week of leave for every 60 weeks (approximately 1.15 years) of continuous employment, accessible after a minimum of seven years.