Local Government (Long Service Leave) Regulations 2021
S.R. No. 70/2021
Version as at
1 July 2021
TABLE OF PROVISIONS
Regulation Page
Part 1—Preliminary 1
1 Objective 1
2 Authorising provision 1
3 Commencement 1
4 Definitions 1
Part 2—General entitlement to long service leave 3
5 General entitlement to long service leave 3
6 No long service leave if already granted 3
7 Long service leave on voluntary termination 4
8 Long service leave on termination in other circumstances 5
9 Long service leave on death 7
10 Recognised service under these Regulations 8
11 Recognised service—Absences that must be included 8
12 Recognised service—Absences and service not included 9
13 Recognised service to include certain prior employment 10
14 Public holidays 11
Part 3—Manner in which long service leave entitlement may be taken 12
15 When leave can be taken 12
16 Double leave at half pay 12
17 No other employment 12
Part 4—General 13
18 Exchange of information between Councils 13
19 Transfer of payments between Councils 13
20 Agreements regarding transfer of entitlements 14
21 Part-time or casual service prior to 1 January 1986 15
22 Saving of earlier entitlements 15
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Endnotes 17
1 General information 17
2 Table of Amendments 19
3 Amendments Not in Operation 20
4 Explanatory details 21
Version No.001
Local Government (Long Service Leave) Regulations 2021
S.R. No. 70/2021
Version as at
1 July 2021
Part 1—Preliminary
1 Objective
The objective of these Regulations is to provide for long service leave for members of Council staff.
2 Authorising provision
These Regulations are made under section 325 of the Local Government Act 2020.
3 Commencement
These Regulations come into operation on 1 July 2021.
4 Definitions
In these Regulations—
Authority has the same meaning as in section 3(1) of the Water Act 1989;
member has the same meaning as member of Council staff;
public service body has the same meaning as in section 4(1) of the Public Administration Act 2004;
recognised service has the meaning given by regulation 10;
special body has the same meaning as in section 6 of the Public Administration Act 2004.
Part 2—General entitlement to long service leave
5 General entitlement to long service leave
(1) Subject to these Regulations, every member who has completed an initial period of 10 years of recognised service is entitled to—
(a) 3 months long service leave with ordinary pay; and
(b) one-tenth of 3 months long service leave with ordinary pay in respect of each additional year of completed recognised service.
(2) Subject to these Regulations, a member is entitled to—
(a) access their long service leave entitlement after completing an initial period of 7 years of recognised service; and
(b) one-tenth of 3 months long service leave with ordinary pay for each year of that service.
(3) Subject to regulation 21, the long service leave entitlement for a part-time or casual member is to be calculated on a pro rata basis.
6 No long service leave if already granted
For the purposes of calculating the period of long service leave, or pay instead of that leave, to which a member is entitled under these Regulations, the Council must not grant long service leave or pay instead of that leave for any period of recognised service in respect of which the member has already taken long service leave or been granted pay instead of that leave.
7 Long service leave on voluntary termination
(1) This regulation applies to a member who has completed an initial period of 7 or more years of recognised service and who voluntarily terminates their employment.
(2) The member may, in writing, request that the Council grant pay instead of long service leave.
(3) If a request is made under subregulation (2), the Council must pay the member one-tenth of 3 months ordinary pay for each year of completed recognised service.
(4) If the member intends to commence work with another Council or a public service body or special body, the member may elect to defer the taking of the long service leave entitlement because—
(a) the member does not intend to take the long service leave to which the member is entitled; or
(b) before their termination becomes effective, the member does not request pay instead of that leave.
(5) If the member elects to defer the taking of the long service leave entitlement under subregulation (4)—
(a) in the case of a member who intends to commence work with another Council, the Council must transfer the long service leave entitlement to the other Council with the payment to be transferred under regulation 19(3); or
(b) in the case of a member who intends to commence work with a public service body or special body, the Council must pay to the public service body or special body (as the case requires) an amount equal to one‑fortieth of one month's ordinary pay for each completed month of recognised service of the member calculated in accordance with these Regulations.
(6) If, before the member's termination becomes effective, the member has not taken the whole of the long service leave to which the member is entitled or pay instead of that leave, or deferred the taking of the long service leave entitlement under subregulation (4)—
(a) the member is not entitled to take the remaining long service leave with pay; and
(b) the Council must pay the member one-tenth of 3 months ordinary pay for each year of completed recognised service.
8 Long service leave on termination in other circumstances
(1) Subject to these Regulations, a member who has completed 5 or more years of recognised service is entitled to long service leave at the rate of one‑tenth of 3 months leave for each completed year of recognised service if the member—
(a) retires because of age or ill-health; or
(b) has their services terminated for any reason (except serious or wilful misconduct or for poor performance); or
(c) voluntarily terminates their employment—
(i) because of impending parenthood; or
(ii) while on parental leave.
(2) A member who ceases employment in any of the circumstances set out under subregulation (1) may, by notice in writing to the Council, elect to take pay instead of all or any part of the long service leave to which the member is entitled.
(3) If a member makes an election under subregulation (2), the Council must pay the member one-tenth of 3 months ordinary pay for each year of completed recognised service.
(4) If a member who ceases employment in any of the circumstances set out under subregulation (1) has not taken the whole of the long service leave to which the member is entitled or pay instead of that leave before their termination or retirement becomes effective—
(a) the member is not entitled to take the remaining long service leave with pay; and
(b) the Council must pay the member one-tenth of 3 months ordinary pay for each year of completed recognised service.
(5) A member who has completed an initial period of 7 years of recognised service and who has been terminated for serious or wilful misconduct or for poor performance is entitled to one-tenth of 3 months long service leave with pay based on the member's ordinary pay for each year of that service.
(6) A member referred to in subregulation (5) is not entitled to take the long service leave with pay and the Council must pay the member one-tenth of 3 months ordinary pay for each year of completed recognised service.
(7) For the purposes of this regulation, a member retires—
(a) because of age, if on or after attaining the age of 55 years the member ceases to be a member; or
(b) because of ill-health, if the member has ceased to be a member because of ill-health that is assessed as likely to be permanent at the time of retiring—
(i) by a medical practitioner approved by the Council; and
(ii) in accordance with the applicable rules under the Council's recognised superannuation fund for assessing eligibility for access to benefits.
9 Long service leave on death
(1) A member who has completed 5 or more years of recognised service and who dies before or while taking long service leave is entitled to be granted pay instead of long service leave at the rate of one-tenth of 3 months ordinary pay for each completed year of recognised service.
(2) If the member dies before or while taking long service leave, or before being paid in full for long service leave, the Council must pay to the legal personal representative of the member (as the case requires)—
(a) the pay which the member elected to take; and
(b) pay instead of any long service leave to which the member was entitled and which the member had not taken, or for which the member had not been paid.
10 Recognised service under these Regulations
(1) For the purposes of calculating a member's entitlement to long service leave or pay instead of that leave under these Regulations, the member's period of recognised service must be calculated in accordance with regulations 11, 12 and 13.
(2) The period of recognised service may be made up of aggregated periods of service if those periods are not continuous.
11 Recognised service—Absences that must be included
(1) The member's period of recognised service must include any period during which the member was absent from work for any of the following reasons—
(a) the taking of long service leave by the member;
(b) the taking of any paid leave by the member including personal, annual, and parental or sick leave;
(c) action by the Council with the intention of avoiding obligations in respect of long service leave or annual leave;
(d) service in a temporary capacity by the member in the defence forces of the Commonwealth (other than service as a member of the permanent defence forces whilst the member is also employed by the Council);
(e) the taking by the member of unpaid sick leave where the absence from work was not—
(i) more than 6 months in total in the initial 10 year entitlement period; or
(ii) one-tenth of 6 months in total in each subsequent annual entitlement period;
(f) an injury for which weekly payments or compensation are payable to the member under the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013;
(g) service by the member on temporary assignment with another Council or a person or body referred to in regulation 13(4).
(2) For the purposes of subregulation (1)(a) the period of recognised service during a period of leave on half pay must be calculated on a pro rata basis.
12 Recognised service—Absences and service not included
The member's period of recognised service must not include—
(a) any absence due to the taking of unpaid leave by the member (except unpaid sick leave as provided under regulation 11(1)(e)); or
(b) if the member's employment with the Council was terminated or the member retired due to ill-health or age (within the meaning of regulation 8(7)) and the member has recommenced employment with the Council more than 12 months after the date of termination or retirement, any service prior to that date; or
(c) any service prior to an absence referred to in paragraph (a) that exceeds 12 months unless the absence is for parental leave approved under the National Employment Standards under section 76 of the Fair Work Act 2009 of the Commonwealth.
13 Recognised service to include certain prior employment
(1) Subject to subregulation (5), the member's period of recognised service must include any period of prior service by the member with any of the following, if the period of service would have been included in the member's period of recognised service with the other Council under these Regulations—
(a) another Council after 1 March 1975;
(b) another Council prior to 1 March 1975 if that Council was the member's employer on 1 March 1975.
(2) If 2 or more Councils are amalgamated and any member of Council staff of the previously existing Councils is employed by the new Council, the period of service of the member with the previously existing Council is taken to be service with the new Council.
(3) Subject to subregulation (5), the member's period of recognised service must include any period of prior service of the member with a public service body or special body if that prior service would have been taken into account by the body in calculating the member's entitlement to long service leave when the member was employed by the body.
(4) To the extent provided for in any agreement made under regulation 20 between the Council and the authority, person responsible for the office or Authority (as the case may be), the member's period of recognised service must include any period of prior service of the member with—
(a) any local government authority under the law of the Commonwealth or any Territory or any State other than Victoria; or
(b) any office under the Crown in the right of the Commonwealth or any State; or
(c) any State, Territory or Commonwealth public authority; or
(d) an Authority.
(5) The Council must not include in the period of recognised service under subregulation (1) or (3) any period of service prior to the member ceasing employment with another Council, or body referred to in subregulation (3), if the member did not commence work with the Council within 12 months after ceasing that employment.
(6) The Council may include, to the extent determined by the Council in each particular case, the whole or any portion of a period of service when the member was absent from duty with the prior or subsequent approval of the Council.
14 Public holidays
(1) If a public holiday falls during any period taken as long service leave taken by a member under these Regulations—
(a) it is not to be regarded as part of the long service leave; and
(b) the Council must grant the member a day off instead of the public holiday.
(2) The day off instead of the public holiday is to be taken—
(a) by agreement at the conclusion of the long service leave period; or
(b) at a mutually convenient time to the member and the Council.
Part 3—Manner in which long service leave entitlement may be taken
15 When leave can be taken
A member may take all or part of their long service leave entitlement at any time which is mutually acceptable to the member and the Council.
16 Double leave at half pay
A member may, with Council approval, take all or part of their long service leave entitlement at half the salary for twice the period.
17 No other employment
A member on long service leave must not engage in any employment for hire or reward, unless the member has the prior approval of the Council to do so.
Part 4—General
18 Exchange of information between Councils
A Council must, at the request of any other Council, provide that other Council with any information in its possession which may be required by that other Council for the purposes of these Regulations.
19 Transfer of payments between Councils
(1) This regulation applies if a member is employed by a Council within 12 months of ceasing employment with another Council.
(2) The Council must inform the other Council (former Council) of the employment within 2 months of the commencement of the employment.
(3) If the service with the former Council would be included in calculating the period of recognised service entitling the member to long service leave under these Regulations, the former Council must, within 2 months of being informed of the employment, pay to the Council an amount equal to one-fortieth of one month's pay for each completed month of service of the member with—
(a) the former Council; and
(b) any other Council, or authority, office or Authority referred to in regulation 13(4).
(4) The amount to be paid by the former Council to the Council under subregulation (3) is to be calculated on the basis of the member's ordinary pay at the time they ceased employment with the former Council.
(5) A Council must refund a payment made to it under subregulation (3) by the former Council if—
(a) the member in respect of whom the payment was made ceases to be employed by the Council; and
(b) within 14 months after the cessation—
(i) the Council has not been informed that the member has been employed by another Council; and
(ii) no agreement under regulation 20 has been made by the Council with another employer in respect of the member's service to which the payment relates; and
(c) the member did not receive any long service leave, or pay instead of that leave, from the Council; and
(d) the member is not entitled to receive any long service leave, or pay instead of that leave, from the Council.
20 Agreements regarding transfer of entitlements
A Council may enter into an agreement with an authority, person responsible for an office or Authority referred to in regulation 13(4), providing for the following—
(a) payments by the Council to the authority, person or Authority in respect of long service leave for a person or class of persons transferring from employment with the Council to employment with the authority, office or Authority;
(b) payments to the Council by the authority, person or Authority in respect of long service leave for a person or class of persons transferring from employment with the authority, office or Authority to employment with the Council.
21 Part-time or casual service prior to 1 January 1986
(1) A part-time or casual member who worked less than 24 hours per week before 1 January 1986 is not entitled to accrue long service leave entitlements in respect of that work on a pro rata basis.
(2) However, the period of service during which that work was carried out must be included as recognised service in accordance with these Regulations for the purpose of the member's long service leave entitlement.
22 Saving of earlier entitlements
(1) If a provision of these Regulations has the following effect, that provision, to the extent that it has that effect, has no force—
(a) reducing or adversely affecting the position of any person in respect of service under—
(i) the Local Government Act 1958 (as in force before the commencement of section 101 of the Local Government Act 1989); or
(ii) the Local Government Act 1989 (as in force before the commencement of section 50 of the Local Government Act 2020);
(b) specifying a level of benefits for any person or class of person which is less than the level which applied under—
(i) the Local Government Act 1958 (as in force before the commencement of section 101 of the Local Government Act 1989); or
(ii) the Local Government Act 1989 (as in force before the commencement of section 50 of the Local Government Act 2020).
(2) If subregulation (1)(a)(i) or (b)(i) applies, the position of the person, or the level of benefits which is to apply, is to be determined as if the Local Government Act 1958 (as in force immediately before the commencement of section 101 of the Local Government Act 1989) were still in force.
(3) If subregulation (1)(a)(ii) or (b)(ii) applies, the position of the person, or the level of benefits which is to apply, is to be determined as if the Local Government Act 1989 (as in force immediately before the commencement of section 50 of the Local Government Act 2020) were still in force.
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Local Government (Long Service Leave) Regulations 2021, S.R. No. 70/2021 were made on 29 June 2021 by the Governor in Council under section 325 of the Local Government Act 2020, No. 9/2020 and came into operation on 1 July 2021: regulation 3.
The Local Government (Long Service Leave) Regulations 2021 will sunset 10 years after the day of making on 29 June 2031 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
There are no amendments made to the Local Government (Long Service Leave) Regulations 2021 by statutory rules, subordinate instruments and Acts.
3 Amendments Not in Operation
This version does not contain amendments that are not yet in operation.