How Many Years Is The Term Of Service

Nearly Victorian workers qualify for long service leave if they take worked continuously with ane employer for at least 7 years. This applies to work that is:

• total time
• part time
• casual
• seasonal
• fixed term.

Long service leave accrues at a rate of ane week for every 60 weeks of continuous service – that's about 0.866 of a week each twelvemonth.

Employers must keep long service exit records and provide them to current or sometime employees on request.

In Victoria, from 1 July 2021, the Wage Theft Human action 2020 makes it a criminal offense to falsify employee entitlement records or to avoid keeping records to gain a financial advantage.

You can get an approximate of how much long service go out you take accrue d using the calculator on Business Victoria's website . The figurer provides an indicative calculation – businesses should check with their ain experts to calculate long service leave accruals that take into account all the relevant circumstances.

Business organisation Victoria also has information to help businesses maintain good staff records .

Nosotros accept a comprehensive guide to the Long Service Leave Act 2018:

Comprehensive Guide to the Victorian Long Service Leave Act 2018

pdf 893.47 KB

Our role

At the Wage Inspectorate we investigate reports most businesses withholding long service leave and respond general enquiries almost long service get out.

Inquire a question or report a business

Use our online grade to:

• report a business concern you suspect of breaking long service leave rules
• ask a question about long service leave
• submit additional documents for an existing report.

Ask a question or make a report

You tin also ask a question or make a report past calling u.s.a. on 1800 287 287 .

Often asked questions

• Most Victorian employees will exist covered by and entitled to long service leave in accordance with the Act, unless they accept a long service exit entitlement from another source. In brusk, about all Victorian workers will have a correct to long service leave, simply that right may be under the Act, an enterprise agreement, a pre-reform honor or under another workplace law.

  The Act does not use to employees who are entitled to long service leave nether another Victorian Human action to the extent of any inconsistency.

  The Act does not utilize to workers covered by the Construction Industry Long Service Leave Act 1997 (Vic) . At that place are also specific arrangements for portable long service for some industries under the Long Service Benefits Portability Human activity 2018 (Vic) that commence in 2019.

• After at least 7 years' continuous employment with one employer, an employee is entitled to:

  1. take their long service get out
  2. be paid any unused long service leave entitlement if employment ends.

  Example

  Jenny has worked at a chemist for 8 years and half dozen weeks.

  Jenny wants to renovate her house merely doesn't have the time. A friend of Jenny'southward tells her she might be entitled to have long service get out because she has more than 7 years' employment at the chemist.

  Jenny asks her employer if she is entitled to take long service leave. Jenny's employer calculates the amount of long service leave she tin take as follows:

  1. eight years multiplied by 52 weeks = 416 weeks.

  2. 416 weeks + 6 weeks = 422 weeks.

  3. 422 weeks divided past 60 = 7 weeks.

  4. Jenny is entitled to take upward to vii weeks' long service get out to renovate her firm.

• The Act provides entitlements for employees to long service exit. An employee is defined by the Human activity as a person employed by an employer to do any work for hire or advantage. It includes an apprentice and any person, such as a trainee, whose oral or written contract of employment requires him or her to learn or exist taught an occupation.

  Full time, office fourth dimension, coincidental and seasonal employees, and employees under certain fixed term arrangements, all accrue long service leave.

  An employee may have a more generous entitlement than the Act under a mutual police force employment contract. Still, a contract cannot legally contain long service get out entitlements inferior to the Deed. In addition, an employer cannot lawfully use a contract, understanding or human activity of any kind to avoid their obligation to pay the full amount of long service leave owed to an employee.

  Independent contractors

  Genuine independent contractors are not employees and are generally ineligible for long service get out under the Act. However, whether a person is truly an independent contractor or employee needs to be assessed on a instance by case basis.

  Outworkers in the article of clothing industry are deemed - by the Outworkers (Improved Protection) Act 2003 (Vic) - to be employees for the purposes of the Act and entitled to long service go out in accordance with the Act.

  Instance one

  Janika is offered and accepts a job every bit a retail salesperson. On the day Janika starts at the business concern, she signs a contract of employment which has a clause stating she won't be entitled to long service exit if employment ends before 10 years.

  Janika resigns from her employment after eight years and asks her employer to pay her vii weeks' long service exit. However, her employer points out that she signed a contract which stated she was non entitled to long service go out if employment ends before ten years.

  Despite the diction of her contract of employment, she is entitled to payment for 7 weeks' long service go out on the twenty-four hour period her employment ends. This is because long service go out terms in a contract that are bottom entitlements (i.east. less favourable) than under the Act are invalid, and the Human activity volition still use, even if an employee signed the contract. In this example, Janika'south employer is obliged to pay Janika her long service go out entitlement and Janika can withal enforce her legal correct to recover non-payment.

  ---

  Instance two

  Esther's employment ends after 10 years, and she is entitled to eight.7 weeks of long service exit.

  Esther and her employer become involved in a dispute over her long service leave entitlement, and Esther is offered a settlement past her employer equivalent to 6 weeks.

  Despite any settlement agreement, based on a x-year employment period, she volition be entitled to payment for 8.7 weeks of long service go out in accord with the Act, and she retains the right to recover the underpayment even if she has signed the settlement understanding.

• Yep, the Act explicitly entitles casual, seasonal and stock-still term employees to long service leave. A casual or seasonal employee'due south employment must nevertheless be 'continuous' under the Act.

  The rules for casual and seasonal employees mean that employment will be accounted continuous if in that location is not an absence of more 12 weeks betwixt any 2 instances of employment. Even so, a coincidental or seasonal employee'south employment will also remain continuous for long service leave purposes, despite an absenteeism from work exceeding 12 weeks, if:

  • the employee and the employer so hold before the start of the absence
  • the absence is in accord with the terms of the engagement
  • the absence is caused by seasonal factors
  • the employee has been employed by the employer on a regular and systematic basis and has a reasonable expectation of being re-engaged by the employer
  • the absence is due to the casual or seasonal employee taking upwardly to 104 weeks' paid or unpaid parental leave.

  Paid or unpaid absences of any elapsing considering of affliction or injury will too non interruption continuous employment.

  The casual hourly rate does not include an amount to comprehend long service go out. A coincidental hourly rate cannot be loaded to compensate for non-payment of long service go out. It is illegal to 'greenbacks out' an employee's long service exit entitlement instead of assuasive the employee to access the leave equally a intermission from work – except where employment has concluded.

  Fixed term employees

  The Act provides that where employment terminates because the fixed period of employment has expired, but the employee is re-engaged within 12 weeks, employment volition be deemed continuous for the purposes of long service leave.

  Example ane – casual or seasonal employee and employer agree

  Paul is a casual zoology tutor at a Victorian university. He has been employed past the aforementioned academy for 13 years.

  Paul and the academy have an agreement that Paul does non teach betwixt Nov and March, due to the university non-teaching period. Paul therefore has a 4-calendar month break from work each year. Yet, this is in accordance with his employment agreement and his employment is to exist regarded as continuous.

  Paul will exist eligible for long service go out despite the absences of more than than 12 weeks between instances of employment every year. This is because Paul and his employer have agreed that his employment continues despite the regular, lengthy absences.

  ---

  Example two – seasonal employment

  Russell works on a seasonal basis at Ruth's Establish Plant nursery. Russell has worked at the nursery for viii years.

  Russell does not piece of work in the coldest wintertime months when there is a dormant period for the plants. The non-working menstruation ranges from 5 weeks to a few months over the years of working at Ruth'south. On at least 3 occasions, the winter spell has lasted for more than than iii months. However, Russell's regular piece of work always recommences after the winter shut down although the gap varies according to the severity of a winter.

  Russell is eligible for long service because his absences are caused by seasonal factors.

  ---

  Example three – regular and systematic casual employment

  Leo works as a casual employee at his local supermarket. He is regularly rostered to work Mondays and has done so for the last 2 years.

  Leo's mother unfortunately falls ill, and Leo must take 4 months off work. He tells his employer this, and his employer assures him they will make shifts available to him again once he is able to return. Leo then returns to piece of work 4 months later when his female parent is feeling improve.

  Although there is no explicit agreement that his employment will not be cleaved for the purposes of long service leave, his service will be deemed continuous nether the Act. This is because Leo'south work is regular and systematic, and he has a reasonable expectation of being re-engaged following the absenteeism.

  ---

  Case four – casual or seasonal employee takes unpaid parental leave

  Ashanti works as a casual ski instructor during each Victorian ski season. Ashanti has worked every ski season for the past 6 years.

  Ashanti takes an initial menses of 52 weeks' parental leave. Before the end of the initial 52 weeks' unpaid parental leave, Ashanti applies to extend it by a further 52 weeks – making a combined total of 104 weeks' unpaid parental leave. Ashanti returns to piece of work at the start of the next ski season after her 104 weeks' unpaid parental leave.

  In this example, Ashanti's period of unpaid parental go out does non interrupt her continuous employment for long service go out purposes under the Human activity. Additionally, whatsoever further menstruation beyond 104 weeks' unpaid parental get out that elapsed before Ashanti could return to work also won't intermission her continuous employment if the farther absence was due to seasonal factors related to the ski flavor.

  ---

  Instance five – fixed term employment

  Karina works at an auditor's concern in the city. Karina has been employed at her job for 8 years. Karina is currently employed on an ongoing basis, only for the kickoff 3 years she was employed on a series of 12-month fixed term contracts. Karina was re-employed at the cease of each fixed term contract. On the first two occasions, the new employment contract commenced immediately after the expiration of the previous fixed term. On the terminal occasion, however, at that place was a gap of iv weeks betwixt the expiration of Karina's 3rd and concluding stock-still term contract and the commencement of her ongoing employment.

  Despite Karina existence employed under a full of 4 separate employment contracts, the beginning iii beingness fixed term engagements, her unabridged period of employment under each successive catamenia of employment, and any gap betwixt them, is deemed continuous nether the Human activity. This is because there was never a gap of more 12 weeks after the expiration of Karina'south stock-still term contracts on each occasion.

• Yes. An employer may agree to leave being taken before an entitlement is due. If the employment and so ends before the long service leave is accrued, the employer may deduct from monies owed to the employee on termination, an amount equivalent to the long service leave taken in advance. However, there is no requirement for an employer to agree to this.

• Yep. An employer may straight an employee to accept leave by giving at least 12 weeks' written notice. If the employee does non want to take their leave at the fourth dimension nominated by the employer, they can utilize to the Industrial Segmentation of the Magistrates' Court for a determination almost this dispute.

• Yes. An employer may agree to an employee taking a period of leave at half pay. For case, an employee with 13 weeks' accrued long service leave could take a 26 weeks' pause at one-half pay. Again, at that place is no requirement for an employer to agree to this.

  Taking half the leave at double pay is non permitted, every bit this is in breach of the Act's prohibition on 'cashing out' long service leave.

• Resignation, back-up, termination, death

  There is no entitlement to a payment of accrued long service leave unless at that place is at to the lowest degree 7 years' continuous employment immediately before employment ends.

  On the day that employment ends, an employee with at to the lowest degree 7 years' continuous employment with one employer is entitled to receive payment for whatever untaken long service leave. This volition apply whether the employee has resigned, has had their employment terminated by the employer, has been made redundant, or has died. If an employee has accrued long service leave but dies before it is taken, a payment must be fabricated to the employee's personal representative.

  It is an offence for an employer not to pay an employee the full amount of the employee'due south long service go out entitlement on the mean solar day the employment ends. The penalisation for this offence is 12 penalty units for a natural person and 60 penalization units for a body corporate. These penalties apply for each twenty-four hour period that the offence continues. If an employer is plant guilty of this offence, a criminal conviction may also be recorded.

  Where an employee has already taken some long service leave, the employer must pay any remaining accrued leave when employment ends. When calculating long service leave, weeks of long service get out already taken or paid for in accordance with the Act must exist deducted.

  It is important to annotation that payments in lieu of long service leave are prohibited (where employment is still standing), as this is in breach of the Human action's prohibition on 'cashing out' of long service leave.

  Instance one

  Jacqui resigns from her employment, and, following completion of her find period, her employment ends afterward 7 years and six months' continuous employment. Jacqui's long service leave entitlement is calculated as follows:

  Seven years multiplied past 52 weeks = 364 weeks.

  Six months = 26 weeks.

  364 weeks plus 26 weeks = 390 weeks in total.

  We then split the total weeks by threescore, as Jacqui will receive one week of long service leave for each lx weeks' continuous employment. 390 weeks divided by sixty equals half-dozen.5 weeks.

  Jacqui is therefore entitled to payment for six.5 weeks of long service leave on the 24-hour interval her employment ends.

  ---

  Case two

  Marcus resigns from his employment, offering one calendar month's notice, but his employer elects to pay him in lieu of find then that his employment ends on the mean solar day on which he resigns. Marcus' employment ends after half-dozen years and eleven months. As Marcus has not reached 7 years' continuous employment by the terminal day of his employment, there is no entitlement to a payment of accrued long service leave.

  If, yet, Marcus had worked out his menstruation of notice, he would have accrued 7 years' service, and would then be entitled to a payment in lieu of long service get out.

  ---

  Instance 3

  Jayne is retiring after 22 years. After eight years of employment, Jayne took 6 weeks of long service get out to visit her girl in Canada. Jayne's long service leave is calculated as follows:

  22 years multiplied by 52 weeks = i,144 weeks in full.

  We and so split 1,144 weeks by 60. 1,144 divided by threescore = nineteen.i weeks.

  We then deduct the half dozen weeks' long service leave already taken to calculate Jayne's final entitlement. xix.1 minus 6 = 13.1 weeks.

  Jayne is entitled to a payment for xiii.1 weeks of long service leave on the mean solar day her employment ends.

• No. Information technology is an offence under the Deed to give or receive payment for long service leave instead of the employee taking the break from work. An employee can only receive payment for any unused long service leave if their employment ends before the go out is taken (the only time long service exit can exist paid out is when employment ends). Both an employee and an employer can be liable for this offence. If an employer or employee is found guilty of this offence, a criminal confidence may also be recorded.

• Where a business is sold, transferred or assigned and an employee remains with the business, the new employer becomes responsible for the employee's long service go out entitlement. The period of employment with the old employer transfers to the new employer, who becomes liable for the long service leave accrued across the entire period of employment. Information technology is common for the auction of business organisation documents to reflect this liability, but such documents cannot validly exclude an employee'due south entitlement. Even if the contract for the sale of business does not include contingencies to cover a transferring employee's long service leave, the employee still has an entitlement with the new possessor under the Act.

  Where an employee will go on with the new possessor of the business organisation, the old employer generally should not pay out accrued long service go out to the employee, every bit this may corporeality to an unlawful 'cashing out' of the entitlement. There are sale-of business situations in which information technology may be unknown to an employer whether an employee may become re-employed by a new owner of their concern (discussed below).

  It is common for the parties to a sale of business organisation to factor long service leave liabilities into the buy price, or for an amount of money to exist put into trust for the employee's benefit to encompass the amount of long service exit the employee accrued during their employment with the old employer. Whatsoever the seller and purchaser agreed during their negotiation has no begetting on their continuing obligations to the employee under the Act, and any arrangement must ensure strict compliance with the Human activity.

  Sale of business

  If an employee is dismissed past the erstwhile concern owner but is employed by the new business possessor within 12 weeks later on their dismissal to do work which is the same (or substantially the aforementioned) as the work the employee did for the old owner, employment is deemed continuous for the purposes of long service leave accrual under the Deed.

• If an employer re-employs a person who was formerly the employer's apprentice inside 52 weeks afterward completion of the employee's apprenticeship, and so the menses of their apprenticeship counts towards the period of employment with that employer.

  Some apprentices are employed by a Grouping Training Visitor, which places the apprentice with a host employer. The apprentice may later become employed past the host employer straight. In this circumstance the rules that apply to insourcing and outsourcing will apply. That is, the continuous employment with the Group Training Company must be recognised by the host employer.

• Sure get out and/or absences occur in employment that affect both the continuity of employment on the one manus, and what counts towards the accrual of long service leave on the other. Sure absences practise non interruption continuous employment under the Act, while others do. Similarly, certain absences count towards the period of employment for long service leave purposes, while others do non. There are therefore ii primal questions that tin can usefully guide an assessment of a person's entitlement to long service exit under the Act, as follows:

  1. Has an employee taken any leave or absences of a type that interruption continuous employment?
  2. Do the types of leave or absences an employee takes during employment count towards the catamenia of employment for the purposes of the accrual of long service leave?

• For an employee to become entitled to long service exit, their employment with the employer must be continuous. This does not prevent the employee taking certain paid or unpaid breaks from work. Besides, some other specified exit and absences will be deemed to not interrupt or intermission continuous employment for long service leave purposes.

  Illness or injury

  Any paid or unpaid absence from work for any duration because of illness or injury, including WorkCover absences, will not break continuous employment.

  Paid or unpaid leave

  Annual leave, paid or unpaid parental exit for total fourth dimension or function time employees (or up to 104 weeks' paid or unpaid parental leave for seasonal or coincidental employees), or long service leave itself, will not break continuous employment. Whatever other form of leave provided for under an oral or written employment agreement will also non intermission continuous employment.

• Unpaid parental go out up to 52 weeks volition count towards continuous employment for accrual of long service exit, and no amount of paid or unpaid parental go out volition pause continuous employment for long service go out purposes.

  Unpaid parental leave exceeding 52 weeks volition not count towards the accrual of long service leave, unless:

  • the (longer) catamenia of absence is taken to be a period of employment in accordance with the relevant written or oral employment agreement
  • the employee and employer agree in writing before the (longer) get out is taken that the leave is to be regarded as a period of employment
  • the (longer) period of unpaid get out is any other form of leave provided for in the relevant written or oral employment agreement (Department 3 of the Human action contains a broad, not-exhaustive definition of what is meant by the term 'employment understanding').

  The Act's transitional provisions hateful that certain types of absence from work that occurred before 1 November 2018 will continue to non count towards the period of employment for accrual of long service leave purposes.

  If the Human activity commences during an employee's absence on unpaid parental exit, simply that function of the period of unpaid absence occurring on and from 1 November 2018 counts towards the employee's flow of employment for the purposes of accruing long service leave

• Under the Act, any paid or unpaid absence from work because of illness or injury occurring on and from the commencement of the Act on 1 November 2018 counts towards the menstruation of employment for long service leave purposes. Unpaid leave due to illness or injury includes a WorkCover absence.

  Where the unpaid absence because of illness or injury occurred before the kickoff of the Act, just 48 weeks' unpaid absence for that reason in any year counts towards the period of employment, as it occurred under the previous, 1992 Human action.

  The tables below identify common absences from work or interruptions to employment and country their consequence on continuous employment and what counts towards the period of employment for long service leave purposes. The absences identified are non an exhaustive list of all circumstances that may touch on the accrual of long service get out.

  The tables separately accost what the rule is for the absence/south or break/due south identified, depending on whether these have occurred under the Human action (from 1 Nov 2018), or the 1992 Act (as it previously applied).

  Tables: effect of absences/exit on long service get out

  Common absences and how they touch continuous employment if they occur on and from one November 2018

  Does non break continuous employment	Does pause continuous employment
  Almanac leave	In the case of a coincidental or seasonal employee, paid or unpaid parental leave exceeding 104 weeks (notation: a longer absenteeism may not break a casual or seasonal employee'south continuous employment in certain circumstances)
  Long service leave	Termination of employment at the initiative of the employer or the employee if the employee is not re-employed within 12 weeks
  Absence from work because of illness or injury
  Carer's leave
  Paid or unpaid parental leave for permanent employees
  In the example of a casual or seasonal employee, paid or unpaid parental leave up to 104 weeks (annotation: a longer absence may not suspension the continuous employment of a coincidental or seasonal employee in certain circumstances)
  Termination of employment at the initiative of the employer or the employee if the employee is re-employed within 12 weeks
  Whatever other form of paid or unpaid get out provided for nether the relevant employment agreement

  Common absences and how they bear on continuous employment if they occurred under the 1992 Deed (before i November 2018)

  Does not interruption continuous employment	Does break continuous employment
  Almanac go out	Termination of employment at the initiative of the employee
  Long service leave	The dismissal of an employee where the employee is non re-employed inside iii months
  Absence from work because of disease or injury	Parental get out exceeding 12 months unless otherwise specified in the relevant employment agreement or provided for under the National Employment
  Carer's leave
  Any other get out approved by the employer, excluding parental leave
  Parental leave upwards to 12 months or any other period specified in the relevant employment understanding or provided for nether the National Employment Standards
  The dismissal of an employee if the employee is re-employed within iii months of the dismissal

  Common absences from work that count or exercise not count towards the period of continuous employment if they occur on and from i November 2018

  Does count towards the menstruation of employment	Does non count towards the menstruum of employment
  Paid leave	Unpaid exit exceeding 52 weeks unless the leave is provided for under the relevant employment agreement
  Unpaid leave (including unpaid parental exit) upward to 52 weeks, or longer if the leave is provided for under the relevant employment understanding	Where an employee's employment ends, and the employee is re-employed within 12 weeks, the period during which the employee was not employed
  Leave on business relationship of affliction or injury

  Common absences from work that count or do non count towards the menstruation of continuous employment if they occurred before 1 November 2018

  Does count towards the period of employment	Does not count towards the period of employment
  The taking of any almanac leave or long service leave	Unpaid parental leave
  Any other paid or unpaid absence from work approved past the employer, including carer's leave but not including adoption, maternity or paternity leave	Where an employee is dismissed at the employer's initiative and the employee is re-employed within 3 months, the intervening period
  Any absence from work of not more 48 weeks in any year on account of affliction or injury	Any absence from work exceeding 48 weeks in any year on business relationship of disease or injury

Reviewed 11 November 2021

Source: https://www.vic.gov.au/long-service-leave

Posted by: rachalbeenarile.blogspot.com

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