# Long Service Leave - Governing Law for a Victorian Employee

## Which law applies

For an employee working in Victoria for a national-system employer covered by the Fair
Work Act 2009 (Cth), long service leave is governed by **Victorian state law** - specifically
the **Long Service Leave Act 2018 (Vic)** (which replaced and repealed the Long Service
Leave Act 1992 (Vic) from 1 November 2018).

The level of government whose law applies is the **State of Victoria** (the Victorian
Parliament / state legislature).

## Why state law, not federal law

Long service leave is not regulated by the Fair Work Act 2009 (Cth). The Fair Work Act
is the national industrial relations law and governs things like the National Employment
Standards (NES), modern awards, and enterprise agreements, but it does not set long
service leave entitlements. The NES (Part 2-2 of the Fair Work Act) explicitly
preserves state and territory long service leave laws: s 113 of the Fair Work Act
provides that an employee is entitled to long service leave in accordance with the
applicable pre-Fair Work Act instrument or state/territory long service leave law.

Because Victoria has its own Long Service Leave Act, that Victorian Act is the
controlling instrument for Victorian employees, regardless of whether their employer
is a national-system employer.

## What the Long Service Leave Act 2018 (Vic) provides

Under the Long Service Leave Act 2018 (Vic), the key entitlements are:

**Accrual rate:** An employee accrues long service leave at the rate of **1/60th of their
period of continuous employment** (i.e., approximately one week of leave for every
60 weeks, or 1.667 weeks per year of continuous employment).

**Threshold for taking leave:**
- After **7 years** of continuous employment, the employee may take long service leave
  (this was a key change from the 1992 Act, which required 10 years before leave
  could be taken).
- After **7 years**, the employee can take leave on full pay for the full accrued amount
  calculated at 1/60th of their service.

**Threshold for payment on termination:**
- If the employment ends after **7 or more years** of continuous employment, the employee
  is entitled to be paid out any accrued long service leave entitlement.
- If employment ends after **at least 1 year but less than 7 years** by reason of death,
  illness, domestic pressing necessity, or by the employer (other than for serious and
  wilful misconduct), a pro-rata entitlement is paid out.

**Rate of payment:** Long service leave is paid at the employee's "ordinary rate of pay" -
the base rate the employee would have received had they been at work, calculated on
the employee's average ordinary hours over the preceding 12 months (or over the period
of employment if shorter).

## Summary

| Question | Answer |
|---|---|
| Governing statute | Long Service Leave Act 2018 (Vic) |
| Level of government | State (Victoria) |
| Accrual rate | 1/60th of continuous service |
| Minimum to take leave | 7 years of continuous employment |
| Minimum for pro-rata on termination | 1 year (in qualifying circumstances) / 7 years (unconditionally) |

## Approach note

This answer identifies that long service leave in Australia is a state and territory
matter, not a federal one, even for national-system employers. The Fair Work Act
preserves state long service leave laws under s 113. For Victoria, the applicable
statute as at FY2025-26 is the Long Service Leave Act 2018 (Vic), which came into
force on 1 November 2018 and is the current governing instrument.