Under the Portable Long Service Benefits Scheme, the Authority has the responsibility to collect money from employers and must act with the highest standards of financial probity. This duty extends to compliance and enforcement activities.
Non-compliance with the Act and Regulations undermines the equitable intent and beneficial effects of the Scheme.
Compliance and enforcement principles
In administering the Scheme, the Authority is guided by the following principles, ensuring high ethical standards of behaviour and decision making, and consistency of outcomes.
| Fairness | The Authority will act within the Victorian Model Litigant Guidelines and the legal ethics framework for the conduct of compliance activities, including enforcement using legal action. |
| Transparency | The Authority will make its compliance and enforcement positioning clear to the participants in the Scheme. Compliance matters finalised by litigation will be made public as part of being transparent. |
| Accountability | Decision making in the area of compliance and enforcement will take place within a framework of rigorous corporate governance and the checks and balances that the Authority is subject to. |
| Proportionality | The Authority’s compliance and enforcement responses will be proportional to the conduct creating the non-compliance and the resulting or potential harm caused. |
| Timelines | The Authority will conduct compliance activities, including investigations and enforcement as efficiently as possible to avoid undue delay and uncertainty to those affected by the non-compliance, both workers and employers. |
| Confidentiality | The Authority will act with confidentiality in matters under investigation and will not make public comment on matters that may or may not be under investigation. |
Where a matter is in the public domain and it is in the public interest to make comment, the Registrar may make comment on a matter. No comment will be made on cases that are before the courts.
Offences that the Authority can prosecute
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The Authority can prosecute the following offences under the Act where employers fail to comply with their obligations under the Scheme:
- failure to apply for registration within the required time
- failure to notify a change of registered active employer details
- failure to notify a registered active employer ceasing to be an employer for a covered industry
- failure to give the Authority a quarterly return
- failure to pay the portable long service levy to the Authority
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The Authority can prosecute the following offences under the Act where an employer takes adverse action against workers in relation to their long service entitlements:
- an employer for a covered industry taking adverse action against a worker because the worker is entitled to long service benefits under the Act
- an employer for a covered industry taking adverse action against a worker because the worker sought to exercise the entitlement to long service benefits under the Act
- an employer for a covered industry taking adverse action against workers because the workers made an enquiry as to their entitlements to long services benefits under the Act
- an employer for a covered industry taking adverse action against a worker because the worker applies to the Authority for a determination as to the taking of long service leave under the Act
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The Authority can prosecute where the employer fails to keep and/or provide a worker with access to long service records under the Scheme:
- an employer for a covered industry failing to keep long service records for a worker while employed by that employer
- an employer for a covered industry failing to keep long service records for a worker for 7 years after the worker stops working for the employer
- making a false or misleading statement in or material omission from a long service record without reasonable excuse
- an employer for a covered industry refuses a request by a worker or worker’s personal representative to provide a copy of a long service record relating to that worker.
The Authority can prosecute where a person has not complied with a notice to produce information or documents:
- failing to comply with a notice under s.61 to produce documents or provide information
- knowingly producing a document to an authorised officer under s.61 that is false or misleading in a “material particular”.
Monitoring and investigating compliance
For the Scheme to provide long service benefits in a fair and equitable way it is necessary for the Authority to monitor compliance with the requirements imposed on employers in the covered industries and to respond to instances of where it is alleged that a regulatory offence has been committed.
Non-compliance with the Act will result in the Authority using the appropriate legal enforcement measures to ensure that eligible employers and workers are registered with the Scheme and recover any money that is owed to the Authority and restore the employer to compliance.
The Authority will ensure that:
- eligible employers are registered and recording service for workers
- quarterly returns are filed
- levies are paid to the Authority when invoices are issued
- the Worker and Employer Registers are up-to-date
- no adverse action is taken against workers for having or seeking to exercise their entitlements under the Act
- determinations made by the Authority are complied with
- notices to produce records and other documents are complied with
- that false or misleading information is not supplied to the Authority.
Reviewed 25 October 2021