The Long Service Benefits Portability Act 2018 (Vic) To Impact On The Victorian Community Service Sector, Security And Contract Cleaning Industry Employers From 1 July 2019

By Chao Ni, Principal, MST Lawyers

Employers in the community services sector, contract cleaning industry and security industry should take note of the Long Service Benefits Portability Act 2018 (Vic) (LSBP Act) that will come into effect on 1 July 2019.   The Long Service Benefits Portability Regulation is currently being drafted and will further clarify the scope of the LSBP Act upon being finalised and released.

See our previous article on the LSBP Act here.  This article contains more in-depth information about the coverage and scope of the LSBP Act.

Are You Covered By The LSBP Act?

1. Community Services Sector

The community services sector includes any sector in which community service work is performed.  Community service work is work that provides:

• training and employment support, or employment placement, for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or
• financial support or goods for the assistance of persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or
• accommodation, or accommodation-related support services, for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or
• home care support services for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or
• other support services for —
  • persons with a disability or their carers; or
  • persons who are vulnerable, disadvantaged or in crisis; or
• community legal services, community education and information services, or community advocacy services; or
• community development services; or
• fundraising assistance for community groups; or
• services assisting particular cultural or linguistically diverse communities; or
• a service, or a service of a class, the provision of which is prescribed to be community service work.

Community service work does not include:

• an activity that is funded by the National Disability Insurance Scheme within the meaning of the National Disability Insurance Scheme Act 2013 (Cth), unless such an activity, or class of activity, is prescribed to be community service work; or
• a service provided by an entity that is a licensed children’s service under the Children’s Services Act 1996 (Vic) or an approved provider under the Education and Care Services National Law (Victoria), unless such a service, or class of service, is prescribed to be community service work; or
• an activity, or class of activity, prescribed not to be community service work. (Refer to the Regulations).

An employer for the community services sector includes:

• a non-profit entity that employs one or more individuals to perform community service work; or
• an entity for profit that employs one or more individuals to perform community service work for persons with a disability; or
• a person who is, or is a member of a class, prescribed to be an employer for the community services sector.

The following are not employees for the community services sector:

• if the employer operates a business in addition to being a licensed children’s service under the Children’s Services Act 1996 or an approved provider under the Education and Care Services National Law (Victoria)— an individual employed by the employer unless the individual’s role is to care for children or coordinate the care of children;
• if the employer is a community health centre registered under section 48 of the Health Services Act 1988—an individual employed by the employer unless the individual’s role is to carry out community service work at the community health centre;
• if the employer provides services for persons with a disability—an individual employed by the employer whose primary role is to provide health services to those persons approved provider;
• employees to whom the Aged Care Award 2010 applies
• if the employer provides services for persons with a disability—an individual employed by the employer whose primary role is to provide health services to those persons.
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2. Security Industry

The security industry includes an industry in which security activities are undertaken by persons licensed to undertake them under the Private Security Act 2004 (Vic).

Security work:

• is work performed in the security industry
• includes an activity, or an activity of a class, prescribed to be security work.
•  includes:
  • protecting, guarding or watching property;
  • acting as a bodyguard;
  • acting as a crowd controller;
  • installing, servicing or repairing security equipment;
  • providing training in relation to private security.
• does not include an activity, or an activity of a class, prescribed not to be security work, such as:
  • • installing a lock as part of work as a builder;
    • cutting unrestricted keys;
    • operating a prison or other correctional facility;
    • selling self-install security systems.

An employer for the security industry includes:

• a person engaged in the industry in Victoria who employs someone else (whether in Victoria or elsewhere) to perform work in the industry;
• a person who employs or engages someone else (a worker) to perform work in the industry for another person engaged in the industry in Victoria for fee or reward and there is no contract to perform the work between the worker and the person for whom the work is performed.
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3. Contract Cleaning Industry

The contract cleaning industry is considered to be an industry in which employers provide cleaning work to other people through the provision of workers’ services.

Cleaning work:

• is work that has, as its only or main function, the bringing of premises into, or keeping of premises in, a clean condition; or
• is an activity, or an activity of a class, prescribed to be cleaning work.
• includes the cleaning of a swimming pool and the grounds surrounding the swimming pool.
• does not include:
  • the removal of waste from commercial waste receptacles; or
  • the bringing of grounds surrounding a building or house into, or keeping the grounds in, a clean condition; or
  • work of a cleaning nature performed on a building or house under construction; or
  • work of a gardening nature, including the removal or alteration of vegetation; or
  • an activity, or an activity of a class, prescribed not to be cleaning work.

An employer for the contract cleaning industry includes:

• a person engaged in the industry in Victoria who employs someone else (whether in Victoria or elsewhere) to perform work in the industry;
• a person who employs or engages someone else (a worker) to perform work in the industry for another person engaged in the industry in Victoria for fee or reward and there is no contract to perform the work between the worker and the person for whom the work is performed (labour hire employer).

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Portable Long Service Benefits Authority Registration

Established businesses that employ any employees for the community services sector, contract cleaning industry and security industry (as defined above) must register with the Portable Long Service Authority between 1 July and 30 September 2019.  New businesses must register within three months of establishment.

Registration opens on 1 July 2019 and can be completed online. 

Lodging Your Quarterly Return

 Each quarter; January, April, July and October, registered businesses are required to lodge a quarterly return to the Portable Long Service Authority.

The quarterly return will include information about:

• all workers who have worked for the business during that quarter
• the ordinary hours they have worked
• the pay they received during the quarter

The first quarterly return will require businesses to register all workers for the first time.

How To Pay The Employer Levy 

 When a quarterly return is lodged, a levy must be paid at the same time.  The levy is calculated based on the worker’s ordinary pay as follows:

• 1.65% for community services
• 1.80% for contract cleaning
• 1.80% for security

If you suspect that this new portable long service leave legislative regime will impact your business, please contact the MST Lawyers Employment Law team by email or call +61 3 8540 0200 to speak with a specialist employment lawyer