Application
This Policy applies to all departments and public sector bodies of the State of Victoria and their non-executive level employees, as defined under the Public Administration Act 2004 (Vic) (PA Act) and other Victorian legislation.
Overview
In the Victorian public sector, the entitlement to long service leave can derive from a variety of instruments, including the National Employment Standards under the Fair Work Act 2009 (Cth) (FW Act) and the Long Service Leave Act 2018 (Vic) (LSL Act). Public sector employers must properly identify the source of long service leave entitlements for their employees to ensure that they meet their statutory obligations.
Sources of long service leave entitlements
National Employment Standards (NES)
The NES are the minimum safety net of entitlements for employees as provided under the FW Act. Section 113 of the FW Act incorporates ‘applicable award-derived long service leave terms’ into the NES. The effect of which is to incorporate the long service leave entitlements of an award that would have covered the employee at the time of the commencement of the FW Act (1 January 2010), had the employee been employed at that time as an NES entitlement.
Not all public sector employees would have been covered by a pre-modern award at the commencement of the FW Act. However, where this is the case and this provision of the FW Act is enlivened, the pre-modern award long service leave entitlement will comprise part of the employee’s NES entitlements. For example, for Victorian Public Service employees, the minimum entitlements for long service leave for the NES purposes will derive from the Victorian Public Service Award 2005. Other public sector employees will, similarly, only have an award derived long service leave entitlement if their employer is specifically listed as a respondent to a pre-modern award.
Section 56 of the FW Act makes clear that a term of a modern award or enterprise agreement has no effect to the extent that it is detrimental to an employee in any respect when compared to the NES. This means that any applicable enterprise agreement term has no effect to the extent that it is detrimental in any respect when compared to the pre-modern award entitlement.
Long Service Leave Act 2018
Where a public sector employer is not a direct respondent to a pre-modern award, any LSL entitlement included in a public sector employer’s enterprise agreement will not be an entitlement under the NES. In this scenario, had an employee been employed when the FW Act commenced operation (1 January 2010) there would have been no award-derived long service leave entitlement. In these circumstances, the LSL Act will set the applicable minimum standards.
Public sector employers with no award-derived long service leave entitlements must ensure that their enterprise agreements provide long service leave terms that are at least as favourable as the LSL Act is the minimum standard. Where the provisions are not as favourable, employers are expected to apply the LSL Act’s more favourable provisions.
To that end, public sector employers must ensure that long service leave provisions in their enterprise agreements:
- provide that up to the first 52 weeks of unpaid parental leave counts towards a period of continuous service, and
- ensure that the employer complies with any relevant legislation, and
- do not permit the employer to withhold payment of long service leave on termination due to disciplinary misconduct processes.
Other legislation and/or regulations
In certain sectors, LSL entitlements may be derived from legislation other than the LSL Act, to the exclusion of the LSL Act and/or the NES, including but not limited to the Education and Training Reform Act 2006 (Vic). Where this is the case, LSL entitlements provided by the relevant legislation will set the applicable minimum standards. Public sector employers must ensure compliance with the relevant legislation where applicable. Portfolio departments should also consider any legislation-derived long service leave entitlements when assessing portfolio agency enterprise agreement outcomes.
Summary of long service leave entitlements in the Victorian public sector
The table below provides a summary of LSL entitlements for Victorian Public Service and Victorian public sector employers where they derive an entitlement from an enterprise agreement, a pre-modern award derived long service leave entitlement (NES entitlement), or the LSL Act. The table is not intended to cover all scenarios across the Victorian Public Service and Public Sector, noting that LSL entitlements may be derived from other legislation and/or associated regulations.
| Employer | Enterprise Agreement | Pre-modern award derived long-service leave entitlement | NES entitlement to long service leave | Effect |
|---|---|---|---|---|
| Victorian Public Service | Victorian Public Service Enterprise Agreement 2024 (or its successor(s)) | Yes – under the Victorian Public Service Award 2005 | Yes | LSL provision in enterprise agreement cannot be detrimental in any respect, compared to the pre-modern award entitlement.
|
| Public sector employer | Various | Yes – where there is an award to which they are a direct respondent | Yes – derived from the pre-modern award | |
| Public sector employer | Various | None | No – however, the LSL Act is not displaced by the FW Act and in these circumstances establishes the legal minimum. | Where the LSL entitlement in the relevant enterprise agreement is less beneficial than the LSL Act, provisions of LSL Act will apply.
|
Further Information
For further information and advice employees and public sector union representatives should contact the local Human Resources or People and Culture Unit (or equivalent) of the relevant entity in the first instance.
People and Culture Representatives of Public Sector Entities should contact their Portfolio Department for further assistance in the first instance.
People and Culture Representatives of Portfolio Departments should contact their usual Industrial Relations Victoria portfolio contact for further assistance in the first instance.
Related Policies or Documents
- Enterprise Bargaining and Agreement Making
Updated