Introduction
Long service leave (LSL) entitlements can be complex when employment spans multiple jurisdictions or includes overseas service. Recent decisions in Queensland and Victoria highlight the very different approaches courts and legislation can take to cross-border service, applying the “substantial connection” requirements, and the treatment of foreign entitlements.
For ACT building and construction employers, these cases provide valuable guidance. Understanding how other jurisdictions have addressed these issues can help employers avoid unexpected liabilities under the Long Service Leave Act 1976 (ACT) and the Long Service Leave (Portable Schemes) Act 2009 (ACT).
The Queensland case: Fox v Infosys Technologies Ltd [2024] QIRC 109
Infosys Technologies, incorporated in India and registered in Australia as a foreign company under the Corporations Act 2001 (Cth), frequently assigns its Indian-based employees to overseas roles, including in Australia.
In this case, the Queensland Industrial Relations Commission (QIRC) considered whether Mr Narendra Gade, an Infosys employee, was entitled to LSL under the Industrial Relations Act 2016 (Qld). His continuous employment spanned more than 10 years:
Infosys had already paid Mr Gade entitlements under India’s Payment of Gratuity Act 1972, but refused to recognise Queensland LSL. The QIRC held that under s 93(b), service “partly in and partly outside the State” counts towards the ten-year qualifying period. The Court also found that, when Mr Gade was transferred to Brisbane (even briefly) his contract of employment was altered to reflect that location. Accordingly, work performed during his notice period in Brisbane was sufficient to establish service “in Queensland,” triggering the application of Queensland law. Also, just because payments were already made under Indian legislation, this did not offset Queensland entitlements.
Also see: Infosys Technologies Limited v Fox [2025] QCA 45 (1 April 2025) and Infosys Technologies Limited v Fox [2025] HCADisp 153 B16/2025
The Victorian case: Infosys Technologies Limited v State of Victoria [2021] VSCA 219
The Victorian Court of Appeal considered similar issues under the Long Service Leave Act 2018 (Vic). Unlike Queensland, the Victorian legislation does not expressly provide that service outside the state counts automatically.
The Court concluded that all service must have a “substantial connection” to Victoria to qualify as continuous service for LSL. This interpretation was informed by section 48(b) of the Interpretation of Legislation Act 1984 (Vic), which presumes a territorial connection unless legislation clearly indicates otherwise.
Thus, while Queensland legislation explicitly allows service performed outside the state to be counted, Victoria requires a real and ongoing connection to the jurisdiction.
Implications for ACT employers
In the ACT, long service leave is governed by the Long Service Leave Act 1976 (ACT). The legislation provides that employees become entitled to LSL after 7 years of continuous service and it continues to accrue for each additional year after that. Importantly, service performed temporarily outside the ACT still counts towards continuous service, provided the employment relationship would otherwise be continuous if performed inside the ACT. For the building and construction industry, the Long Service Leave (Portable Schemes) Act 2009 (ACT) also applies. It states that a person is an employer if they engage in the industry in the ACT, even if some work is performed elsewhere. A worker is considered an employee for the scheme if employed or engaged by such an employer, whether the work occurs in the ACT or outside it.
This is broad and can be interpreted literally, like in the Queensland case outlined. It might mean that ACT law does recognise certain forms of interstate or overseas service, and that assessment will turn on whether the work remains connected to an ACT based employer.
Employers should carefully review employee service records, employment contracts, and applicable legislation to ensure compliance. Where entitlements are unclear, employers are encouraged to contact Master Builders ACT’s Workplace Relations team at 6175 5900 or via email at workplace@mba.org.au.
