Portable long service regulations for 2020

Following the introduction of the Long Service Benefits Portability Regulations 2020 (the ‘Regulations’), the Authority has identified the most commonly asked questions by employers and workers, in relation to the community service portable long service benefits scheme (‘Scheme’).  These FAQs should be read in conjunction with the fact sheets.

Why were the Regulations introduced?

To make clearer which workers in the community services sector are covered by the Scheme. The regulations did not introduce a new category of covered workers, instead they expressly stated which workers were always intended to be in the Scheme.

Has the Authority changed its position on who is covered by the portable long service scheme in the community services sector?

No. The purpose of the Scheme is to provide portability of long service benefits to workers employed in the community services sector.

In some instances, employers incorrectly believed a worker was excluded and therefore were not registering an eligible worker. The Regulations confirm that coverage of the Scheme for employers and those working in the sector is broad and a wide range of employers and workers are required to register for the Scheme.

How do the Regulations clarify who is covered?

The Regulations identified five awards common in the community services sector.  This means that if an organisation has a worker who is covered by one of the five awards, then, so long as they are employed by an eligible employer, those workers are a worker under the Scheme (with some limited exceptions).  

If the employer and worker fall within the scope of one of the awards, they are covered by the Scheme regardless of whether they are employed under the award, an enterprise agreement or an individual contract.

What is an award?

Awards are legal documents that outline the minimum pay rates and conditions of employment in Australia. Awards apply to employers and workers depending on the industry in which they work and the type of job they do. Some awards are industry based and others are occupation based. An employer can be covered by multiple awards but the award that applies to workers will depend on the job each worker does. 

Whether a worker is covered by an award is an objective assessment looking at the nature of the business for which they work and the work that each individual worker does. It is not a matter for an employer to choose which award covers their worker (although they may often be best placed to make an informed decision). 

If employers are not sure of their employment or industrial relations obligations, they should contact the Fair Work Ombudsman and/or obtain independent legal advice.

What if my workers aren’t covered by an award?

If you are an employer in the community services sector, then it is unlikely that you have true ‘award free’ employees, even if they are employed under a contract of employment or the National Employment Standards. 

The Social, Community, Home Care and Disability Services Industry Award (SCHADs) is a broad industry award applying to nearly every worker in the community services sector, even those in supervisory or management roles.  If you are an organisation in the community services sector but believe that the SCHADs award does not apply to all your employees, contact the Fair Work Ombudsman or obtain independent legal advice.

My workers are covered by an enterprise agreement that states that it "operates to the exclusion of any award".

The Regulations make clear that, even if an EBA applies to a worker, if they are covered by one of the five awards then they are still a worker for the Scheme. In approving EBAs, the Fair Work Commission will have assessed it against the award that applies to those workers. It is this award that will determine a worker’s eligibility. 

What are the five awards and what workers do they usually cover?

The five awards are:

• the Social, Community, Home Care and Disability Services Industry Award 2010  
• the Children's Services Award 2010  
• the Educational Services (Teachers) Award 2010 (and 2020)
• the Labour Market Assistance Industry Award 2020  
• the Supported Employment Services Award 2020  

Visit Fair Work Ombudsman(opens in a new window) for more information on the awards.

Can a worker ‘drop out’ of the Portable Long Service Benefits Scheme as a result of the Regulations?

This is unlikely. Workers covered and registered prior to 1 October 2020 will remain covered and should continue to be reported in quarterly returns. This is because workers covered by the five awards were always covered by the Scheme. There is a limited exception for workers employed under the Educational Services (Post-Secondary Education) Award working in Neighbourhood Houses. Other workers employed at Neighbourhood Houses and covered by SCHADs continue to be a worker for the Scheme.

If an employer stops including eligible workers on their quarterly returns the Authority will take appropriate and proportionate compliance action. This includes compelling employers to provide information, conducting audits and investigations and, where other compliance measures do not achieve compliance, commencing proceedings and obtaining financial penalties.

Can a community services ‘worker’ covered by SCHADs be excluded from the Scheme?

Generally, no. If a worker is covered by SCHADs, then unless their employer falls within one of the limited exclusions, they will be a worker for the Scheme and must be registered. Employers should familiarise themselves with SCHADs and if in doubt on how it applies to their workers, contact the Fair Work Ombudsman or obtain legal advice.

What does being ‘employed under’ a particular award mean?

‘Employed under’ means covered by one of the five awards. Whether an award covers a worker is an objective test and not an individual employer’s choice. If an employer is complying with workplace laws, then the award under which a worker is employed should also be the award that covers the worker. In the community services sector this will nearly always be the SCHADs award or one of the other four included awards.

In some instances, workers are employed under a different or incorrect award or an employer believes the award does not apply to a more senior worker. In administering the Act, the Registrar will assess whether a worker is covered by one of the five included awards based on:

• information provided to it by employers, regarding the position description, roles and responsibilities of the worker and the nature of the employer’s business
• information from workers (in some instances)
• the words of the relevant industrial award and
• any additional relevant evidence.

The Registrar will make its decision on whether it is more likely than not that the worker is covered by one of the prescribed awards. 

We have identified workers who we thought weren’t covered by the Scheme because we thought they didn’t perform community services work, such as IT support or human resources. What should we do?

There was previously some confusion amongst employers about whether some workers in the community services sector are covered. The Regulations clarified that if a worker is covered by one of the five included awards, then they are a worker for the community services scheme and must be registered. Please see the Worker Fact Sheet below for further guidance. 

The SCHADs Award is an industry-based award which means it applies to workers working in the industry, not just workers in specific classifications. It has broad coverage and can apply to frontline  staff, IT and administrative support through to supervisory, managerial and even executive staff.  Further information is available in Clause 4 of the SCHADs award and schedule. If in doubt, please contact the Fair Work Ombudsman(opens in a new window) or obtain independent legal advice. 

Are workers covered by the Supported Employment Services Award 2020, such as factory workers, covered by the Scheme even though they don’t perform ‘traditional’ community services work?

The Supported Employment Services Award 2020 covers not only organisations that provide employment support services for workers with disability but also employees with a disability where the employer uses the Supported Wage System. This means that a factory worker who is undertaking work as part of the Supported Wage System is considered to be performing community services work.   

I’ve just realised that some of my workers should have been registered since 2019 and/or should have never been removed from my quarterly returns. Am I going to get into trouble and am I expected to pay for it all at once?

The Authority will work with employers to bring their quarterly return reporting up to date. If there is no evidence of deliberate avoidance and the employer works to achieve compliance on their quarterly returns promptly, the Authority will not take further compliance action. If an employer needs time to pay the outstanding levies, in suitable circumstances the Authority is prepared to enter into appropriate payment plans.

To rectify any data missing from quarterly returns, complete the adjustment spreadsheet provided by the Authority and email this information to enquiries@plsa.vic.gov.au(opens in a new window). This will determine additional levy payments. Invoices for additional levy payments will be issued by the Authority once quarterly return adjustments have been completed.

It is important that employers do not delay progressing quarterly returns. If the Authority subsequently becomes aware that an employer has identified workers who should have been registered but has not taken steps to register them, then appropriate compliance action will be taken, including potential court proceedings and seeking financial penalties.

 

Fact Sheet - Community Services - Employers - February 2023

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Fact Sheet - Community Services - Workers - February 2023

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