In brief

The Victorian Parliament has enacted new long service leave legislation which will take effect on or before 1 November 2018, and replace the existing Long Service Leave Act 1992.

What you need to know

The new Act contains the following changes:

  • All employees will be eligible to take long service leave after 7 years of continuous service or have their long service leave paid out at a pro rata basis upon termination after 7 years. That is, employees will be able to take their accrued long service leave after 7 years on a pro rata basis rather than having to wait until they attain 10 years of continuous service.
  • Casual and seasonal employees will remain eligible to accrue long service leave unless there is a break of more than 12 weeks between their engagements. However, continuity of service will not be broken where a casual or seasonal employee:
    • takes up to 2 years parental leave (whether paid or unpaid);
    • the employer and the employee so agree in advance of the employee’s absence;
    • where the break is due to seasonal factors; or
    • where the employee has been engaged on a regular and systematic basis and has a reasonable expectation of being re-engaged.
  • Both paid and unpaid parental leave will count as service and accrue long service leave after the new Act commences.
  • Long service leave can be taken in agreed blocks of a minimum of 1 day, although an employer may refuse an employee’s request for leave of 1 day or more if the employer has reasonable business grounds to do so.
  • If an employee has variable hours or has changed hours during the 2 years prior to taking long service leave, the employee will be paid at the average weekly rate of the employee in the past year, the past 5 years, or over the entire period of the employee’s employment, whichever is more favourable to the employee.

Conclusion

Whilst the Long Service Leave Act 2018 repeals the entire 1992 Act, it unfortunately retains much of the antiquated language and many of the antiquated concepts.

Long service leave is an outpost in State-based legislation, separate from other employee entitlements set out in the more modern Fair Work Act 2009. Accordingly, it is recommended that legal advice is sought for any unusual or difficult issues arising under the Long Service Leave Act 2018.

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

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