Building and Construction Industry Long Service Payments Regulation 2022

The Regulation is organised around a set of recurring administrative concepts that operate together to determine who accumulates service credits, when and how long service levies are charged and calculated, and how disputes and compliance are handled.

Prescribed awards and Commonwealth instruments (ss 4-5)

• The Regulation lists specific modern awards (MA000020 Building and Construction General On‑site Award 2020 and others) and specified pre‑Fair Work State awards for older contracts (s 4). It also prescribes what counts as a Commonwealth industrial instrument for the Act , modern awards, enterprise agreements, Division 2B State instruments and certain transitional instruments (s 5). These lists feed into the Act’s definitions of “building and construction work” and “Commonwealth industrial instrument” and therefore determine which workers and contracts fall within the Act’s coverage.

Standard pay (s 6)

• The Regulation prescribes the technical proxy for “standard pay” used in the Act: ordinary pay payable to a carpenter and joiner of the relevant classification (Level 3 (CW/ECW 3) under the Building and Construction General On‑site Award 2020) for five working days during ordinary hours. This produces a concrete benchmark for calculating certain payment entitlements under the Act.

Non‑service days and service credit calculations (ss 7-9)

• Section 7 prescribes specific categories of non‑service days (pregnancy‑related absence; carer absence if the worker receives a Commonwealth carer allowance; Crown/local council employment under arrangements that do not provide long service benefits; certain Commonwealth places within the State; personal illness/injury; and immediate family serious illness/injury/death). The section cross‑references the Act’s definition and the Fair Work Act for “immediate family”.
• Section 8 prescribes that deductible costs for claims relate to materials and contracts for labour and services and are those permissible to deduct under the Income Tax Assessment Act 1997, thereby aligning accounting treatment for allowable deductions with tax deductibility.
• Section 9 fixes an adjustment rule for transferred service records, setting a worker’s period of service to 220 days less the number of days the worker is already credited in relevant records where a transfer/adjustment is invoked.

Levy design and exemptions (ss 12-15)

• The Regulation prescribes exemptions from the long service levy: small projects below a monetary threshold (threshold was $25,000 until 31 Dec 2022 and $250,000 from 1 Jan 2023), works for certain public bodies where workers are employed directly by the body, exempt development under planning controls, and a “voluntary component” of work (s 12). It defines relevant persons (church, non‑profit, owner‑builder) and the voluntary component (not exceeding 50% of the cost, as assessed by the Corporation).
• A special bushfire relief exemption applies to rebuilding works replacing or repairing buildings destroyed/damaged by bushfire in a specified window (1 July 2019 to 2 March 2020), exempting the first $1,000,000 of cost subject to application timelines and other conditions (s 13).
• Prescribed levy rates are 0.35% until 31 Dec 2022 and 0.25% from 1 Jan 2023 (s 14). The Regulation also notes that the same rate applies when calculating an additional levy amount under a provision in the Act.
• Prescribed monetary amounts for thresholds and caps are set: $25,000 for specified Act provisions (ss 41(6)(b), 42(5)(b)) and $10,000,000 for another Act provision (s 43(6)(b)) (s 15).

Enforcement, interest and penalties (ss 16-17, Schedule 1)

• The Regulation prescribes the Director of the Corporation as the office capable of certifying levy payment (s 16).
• Overdue interest is prescribed as 6 percentage points above the Reserve Bank of Australia’s published cash rate, determined separately for the two half‑year periods (s 17).
• Schedule 1 lists particular statutory provisions for which penalty notices may be issued and the fixed penalty amounts attached (for example s 39 attracts $500, various other listed sections attract $200 or $500).

Appeals and procedural rules (Part 4)

• The Regulation defines Committee procedures for appeals, including the nominated Committee Secretary (s 18), a 42‑day time limit for lodging appeals after notification (extendable to six months in exceptional circumstances) (s 19), form and content requirements for notices of appeal, and limits on evidence (no calling of witnesses or cross‑examination) (ss 20-21). It also prescribes administrative powers for the Committee to decide on the papers, request further information and schedule hearings.

Recordkeeping and service (ss 22-24)

• Employers must retain specific books and records (time sheets, particulars including name, address, email, registration number, award, payslips, PAYG summaries, weekly days worked more than half the ordinary day, and details of long service leave payments) (s 22). Subcontract recordkeeping requirements are also set out (financial records relating to claims and copies of claims) (s 23). Electronic records must be producible in written form (ss 22(2), 23(2)).
• Service of documents via a web portal by electronic message is permitted where the person consents (s 24).

Savings and continuity (s 25)

• Acts and entitlements in force immediately before the repeal of the 2017 Regulation continue to have effect under the new Regulation (s 25).

Collectively, these concepts convert statutory discretion and definitions in the Act into administrable criteria and numeric rules. Where the Regulation uses language such as “the Corporation is satisfied”, “the Committee may”, or “in the opinion of the Corporation”, it preserves decision points for officials and delegations, but within a framework that sets out thresholds, times and required documentation.

Primary affected parties identified by the Regulation are building and construction workers, employers in the building and construction sector, subcontractors, owner‑builders, relevant non‑profit and church organisations, local councils and county councils, the Corporation (the statutory long service payments body under the Act), and the internal appeals Committee.

Workers

• The Regulation affects which days count as service for a worker’s long service payment entitlements by listing non‑service days (s 7). It also affects the benchmark for “standard pay” used in payment calculations (s 6) and the computation of adjusted service periods when transferring or validating service credit records (s 9). Workers whose service is recorded under a corresponding law are affected by the prescribed 4‑year interval rule when claiming between reciprocating jurisdictions (s 11(1)(b)).

Employers and principal contractors

• Employers are affected by recordkeeping obligations (s 22) which specify the exact particulars to be retained, and by the liability to long service levies under the Act as modified by exemption rules in the Regulation (ss 12-15). Employers who engage subcontract workers must ensure subcontract records for service credit claims are maintained (s 23). Employers may also be the recipients of penalty notices for specified breaches in Schedule 1 (Sch 1).

Subcontractors

• Subcontractors carrying out building and construction work are affected both by the levy framework (as payers or as participants in projects where levies apply) and by the explicit requirement to keep copies of financial records and claims regarding service credits (s 23). Subcontractor records must be capable of production in written form even if maintained electronically (s 23(2)).

Owner‑builders, churches and non‑profits

• The Regulation exempts certain works conducted by relevant persons (owner‑builders, churches, non‑profit organisations) or parts of works carried out voluntarily, up to a defined “voluntary component” (s 12(1)(d), s 12(3)). Relevant persons are defined in s 12(3).

Public bodies and local government

• The Regulation exempts from levy the erection of a building for a body constituted under State or Commonwealth legislation (subject to a specific exception in the definition), local councils and county councils, but only where the Corporation is satisfied that all workers are employed under contracts of employment with the body or council (s 12(1)(b)). It also prescribes that days worked for the Crown, local council or county council under arrangements that do not provide for long service benefits count as non‑service days (s 7(1)(c)).

Corporation and Committee

• Administrative responsibility sits with the Corporation and its Director (prescribed office) for certification of levy payments (s 16), for satisfaction in relation to exemptions (s 12), for accepting and processing applications claiming bushfire relief exemptions (s 13(4)), and for calculating refunds (ss 12(2), 13(5)). The appeals Committee and its Chairperson exercise discretion over appeal timelines and procedures; the Chairperson nominates a Committee Secretary for correspondence (s 18).

Persons subject to service by electronic means

• Where persons consent, documents may be served via a web portal (s 24). That affects parties who choose to handle correspondence electronically.

Financially, the rule changes affect project cost dynamics:

• Levy payers see the prescribed levy rate fall from 0.35% to 0.25% from 1 January 2023 for the basic levy (s 14), which mechanically reduces levy charges on the cost of erecting a building after that date. Conversely, overdue payments attract an interest rate of cash rate plus 6 percentage points, which raises the cost of delayed compliance (s 17).

The Regulation also affects dispute resolution pathways for aggrieved persons by setting appeal windows (42 days, with a possible extension to six months for exceptional circumstances) and detailed requirements for notices and hearings (ss 19-21). Finally, Schedule 1 identifies particular statutory breaches that may be enforced by penalty notices with set monetary penalties, directly affecting compliance risk for particular sections of the Act (Sch 1 and Sch 1 cl 1).

The Regulation imposes procedural duties on regulated parties and creates corresponding rights to exemptions, refunds, administrative review and defined forms of service. The core duties and rights are set out below with their statutory anchors.

Duties to keep records and make them producible (ss 22-23)

• Employers must keep specified books and records: time sheets/attendance records; particulars including worker name, address, email, registration number, kind of work performed, award under which the worker is paid, details of payments under the Long Service Leave Act 1955, the total number of days each week the worker performed building and construction work for more than half of the worker’s ordinary work day, payslips and PAYG payment summary statements (s 22(1)(a)-(b)). If records are electronic, they must be capable of being produced in written form (s 22(2)). Subcontractors must keep copies of financial records relating to service credit claims and the claims themselves; those too must be producible in written form (s 23).

Duty to calculate and pay levies, and rights to exemptions and refunds (ss 12-15)

• The Regulation prescribes when long service levies are not payable (s 12(1)), for example: works below monetary thresholds (s 12(1)(a)), works for certain public bodies where workers are direct employees of the body (s 12(1)(b)), exempt development under planning instruments (s 12(1)(c)), and voluntary components of works for relevant persons (s 12(1)(d)). It also provides a statutory right to a refund where a relevant person has paid a levy that is subsequently not payable due to the voluntary component exemption (s 12(2)) or due to the bushfire relief exemption (s 13(5)). The bushfire relief exemption itself is time‑limited to works replacing or repairing buildings destroyed or damaged by bushfire within a specified period and is conditional upon application within prescribed deadlines (s 13(1), (3)-(4)).

Right to administrative review and appeal (Part 4)

• Appellants have a right to appeal certain decisions under the Act to the Committee by lodging a notice of appeal with the Committee Secretary in the approved form within 42 days of being notified of the decision; the Chairperson may permit an appeal up to six months post‑notification where exceptional circumstances exist (s 19). The notice of appeal must state the decision or part of the decision appealed, the grounds, contact details, whether oral submissions are intended and whether those will be made in person or by audio visual link and with or without a legal representative, together with other information required by the Committee (s 20(2)). The appellant has the right to make oral submissions if so indicated and to be notified in writing of the Committee’s decision (s 21(3), (7)).

Duty to certify and pay interest on overdue levies (ss 16-17)

• The Regulation prescribes that the office of Director of the Corporation is the office that may certify levy payment (s 16). Overdue levy amounts incur interest at a prescribed rate equal to 6 percentage points above the RBA cash rate as published immediately before each half‑year period (s 17). That creates a duty to pay on time or incur defined financial consequences.

Service and procedural duties (ss 20, 24)

• Appellants and parties must lodge correspondence and documents with the Committee Secretary; where the Committee specifies a lodging period, materials must be lodged within that period (s 20(3)). Service by electronic message using a web portal is permitted with the person’s consent (s 24).

Enforcement and penalties (Schedule 1)

• Schedule 1 prescribes the offence provisions for which penalty notices may be issued and fixes the penalty amounts. The Schedule further restricts issuing penalty notices where the specified provision is qualified or limited by the Act, ensuring penalty notices are only issued in situations within the provision’s operative scope (Sch 1 cl 1).

Rights preserved under savings (s 25)

• Actions and entitlements that had effect under the previous Regulation immediately prior to repealing continue under this Regulation (s 25), which preserves existing rights and duties in the transition.

Discretionary decision points and delegated powers

• Several provisions leave satisfaction and opinion calls to the Corporation or the Committee (for example s 12(1)(b) “if the Corporation is satisfied”; s 12(1)(d) “if the Corporation is satisfied”; s 13(4) “or a later date approved by the Corporation”; s 19(2) “if the Chairperson is satisfied exceptional circumstances exist”). Those clauses allocate discretion to administrative actors and create rights that are contingent on administrative satisfaction.

All duties and rights in the Regulation operate as detail and procedure delegated from the Act. The Regulation frequently cross‑references the Act (for example, the definition of building and construction work at s 4 refers to the Act, s 3), and in several places the Regulation’s definitions incorporate concepts from other statutes such as the Fair Work Act (s 7(2)) and the Veterans’ Entitlements Act (s 10).

The Regulation establishes enforcement tools in two broad forms: statutory penalty notices for specified offences (Schedule 1) and interest on overdue levy payments (s 17). It also prescribes administrative enforcement mechanisms through recordkeeping requirements that are amenable to compliance checks.

Penalty notices (Schedule 1)

• Schedule 1 identifies particular provisions under the Act for which a penalty notice may be issued and sets the fixed penalty amount for each. The schedule is applied “for the Act, section 64A” (Sch 1, cl 1(1)(a)). The table specifies:
  • Section 16A , $200
  • Section 20(1) , $200
  • Section 31A , $200
  • Section 39 , $500
  • Section 41(2) , $200
  • Section 41(4) , $500
  • Section 56(3) , $200
• Clause 1(2) of Schedule 1 states that where a listed provision is qualified by words that restrict operation to limited kinds of offences or to offences committed in limited circumstances, a penalty notice may be issued only for those limited kinds or limited circumstances, which constrains the administrative reach of penalty notices to the statutory circumstances intended by the Act and the Regulation.

Interest rate and overdue payments (s 17)

• The prescribed interest rate on overdue long service levy amounts is 6 percentage points above the Reserve Bank of Australia’s published cash rate, with the applicable reference date being immediately before 1 January for interest accrued from 1 January to 30 June, and immediately before 1 July for interest accrued from 1 July to 31 December (s 17). This creates a mechanistic and predictable formula for calculating interest on overdue levy liabilities.

Certification and administrative discretion (s 16)

• The Director of the Corporation is the prescribed office for certifying levy payment (s 16). Certification of payment is an administrative act that could be a precondition for certain legal effects under the Act (the Act references ss 45 and 47(5) , see s 16). The Regulation thereby concentrates a compliance gate in a single office.

Recordkeeping enforcement (ss 22-23)

• The Regulation prescribes specific record types that employers and subcontractors must retain, and requires that electronic records be producible in written form (ss 22(1)-(2), 23(1)-(2)). Those prescriptions create a compliance baseline for audits and inspections: failure to keep or produce these records potentially triggers enforcement under the Act (see reference to s 56 of the Act in these provisions) and, as noted in Schedule 1, section 56(3) is a penalty notice provision attracting $200.

Appeals and procedural limits (Part 4)

• The Regulation sets out an administrative appeal route to the Committee with strict timeframes (42 days, extendable in exceptional circumstances) and procedural limits on evidence (for example, parties may not call witnesses or cross‑examine at appeal hearings, s 21(5)). These constraints limit the form of contestation available in appeal hearings and concentrate the Committee’s role on documents and oral submissions rather than formal evidentiary testing.

Refund pathways (ss 12(2), 13(5))

• Where levies are paid but later found not payable under prescribed exemptions (voluntary component for relevant persons or bushfire relief exemption), the Regulation entitles the payer to a refund of the part of the levy not payable. That places an administrative duty on the Corporation to process refunds and creates an enforcement dimension in ensuring refunds are made where statutory criteria are satisfied.

Discretion and administrative decisionmaking

• Multiple provisions vest the Corporation or the Chairperson with assessment or satisfaction powers (for example s 12(1)(b), s 12(1)(d), s 13(4), s 19(2)). Those delegated decision points can affect the operation of enforcement (for instance, whether a site is exempt from levy because the Corporation is satisfied workers are employed under contracts of employment with the body). The Regulation therefore embeds administrative discretion into enforcement outcomes.

Collectively, the Regulation supplies administrative enforcement tools (penalty notices tied to Act provisions, interest on overdue payments, recordkeeping obligations) and channels disputes into internal administrative review mechanisms. The Regulation also prescribes constrained processes for appeals that limit formal evidentiary mechanisms, and concentrates some certification and satisfaction functions in specified offices and the Corporation.

The Regulation frequently cross‑references the Act and other Commonwealth and State statutes to define terms, set thresholds and align administrative treatment. The interaction is primarily definitional, procedural and fiscal.

Primary interaction with the Act

• The Regulation operates to prescribe matters required or permitted by the Act. Numerous sections begin “For the Act, section ...” and provide the prescribed particulars. Examples include s 4 (prescribing awards for the Act, s 3 definition of building and construction work), s 5 (prescribing Commonwealth industrial instruments for the Act, s 3), s 6 (prescribing standard pay for the Act, s 3), s 7 (prescribing non‑service days for the Act, s 19), and others throughout Parts 2-5 and Schedule 1. The Regulation therefore functions as a delegated instrument that supplies the Act with concrete values, lists and procedural forms.

References to Commonwealth employment and industrial law

• The Regulation explicitly imports definitions and instruments from the Fair Work Act 2009 (ss 4 and 5). Section 7(2) imports the meaning of “immediate family” from the Fair Work Act. Section 5 prescribes that modern awards and enterprise agreements within the meaning of the Fair Work Act are Commonwealth industrial instruments for the purposes of the Act. Those cross‑references align the Regulation’s coverage and worker classification determinations with federal industrial frameworks.

Interaction with tax law

• Section 8 prescribes that costs deductible for service credit claims are losses and outgoings relating to materials and contracts for labour and services and are those permissible to deduct under the Income Tax Assessment Act 1997. This ties allowable deductions for service credit claims directly to federal income tax treatment.

Interaction with planning and building laws

• Section 12(1)(c) exempts erection of a building from levy where an environmental planning instrument provides the building may be erected as exempt development or development that does not otherwise require development consent under the Environmental Planning and Assessment Act 1979. The Regulation therefore uses planning law outcomes to determine levy liability.

Interaction with State home building and long service leave regimes

• The definition of owner‑builder in s 12(3) is the holder of an owner‑builder permit under the Home Building Act 1989. Section 22(1)(b)(v) requires recordkeeping of payments under the Long Service Leave Act 1955, which connects recordkeeping obligations to the State long service leave regime. Section 9 references “records of building and construction workers’ service kept under a corresponding law” for adjustment of service periods, and s 11 provides rules for transferring service credits in reciprocating States or Territories. Those provisions manage overlaps and transfers between State schemes and the Act regulated by this Regulation.

Interaction with veterans’ entitlements

• Section 10 prescribes the “prescribed retiring age” for a worker receiving a pension under the Veterans’ Entitlements Act 1986, referencing sections 37 and 38 of that Commonwealth Act. The Regulation therefore synchronises a specific definition with an external Commonwealth pension eligibility standard.

Administrative and procedural interface

• The Regulation prescribes the Director of the Corporation for certification purposes (s 16) and creates an appeals path to the Committee for decisions under the Act (Part 4). The appeals process, recordkeeping obligations, penalty notice availability and refund mechanisms operate within the administrative architecture established by the Act, so the Regulation’s procedural rules must be read and applied in conjunction with the Act’s substantive provisions and enforcement powers.

Transitional continuity and repeal

• Section 25 preserves acts and entitlements that had effect under the repealed 2017 Regulation, ensuring continuity across the repeal of the earlier subordinate instrument. The note to s 2 explicitly records that the 2017 Regulation was repealed on commencement of the 2022 Regulation.

In short, the Regulation is tightly integrated with the Act and uses external statutes as definitive reference points where the Act delegates or contemplates alignment. Where the Regulation refers to other legislation for meanings (Fair Work Act, Income Tax Assessment Act, Environmental Planning and Assessment Act, Home Building Act, Long Service Leave Act, Veterans’ Entitlements Act), it creates direct operational dependencies between the Act’s delegated framework and those external legal frameworks.

The Regulation’s text records its commencement, replacement of the prior subordinate instrument, and explicit amendment notation in respect of one section. The statutory history contained in the text is as follows.

Commencement and repeal of previous Regulation

• The Regulation commenced on 1 September 2022 (s 2). The note to s 2 states that this Regulation replaces the Building and Construction Industry Long Service Payments Regulation 2017, which was repealed on 1 September 2022 by s 10(2) of the Subordinate Legislation Act 1989.

Recorded amendment

• Section 7 carries an amendment notation: “s 7: Am 2024 No 84, Sch 1.2.” That indicates section 7 (Non‑service days) was amended by a 2024 amending instrument number 84, Schedule 1.2. The text of s 7 as presented is the amended version, and the amendment citation is recorded within the Regulation.

No other amendments are recorded within the body of the Regulation provided

• Other parts of the Regulation do not carry explicit amending citations in the supplied text. The Regulation contains notes and cross‑references to other Acts, but the only explicit recorded amendment to a numbered provision in the text supplied is the amendment to s 7 referenced above.

Transitional saving

• Section 25 provides a saving provision to preserve acts, matters or things that had effect under the old 2017 Regulation immediately before its repeal. The effect is to ensure continuity for rights and obligations across the repeal and replacement process.

Contextual notes

• The Regulation includes notes that clarify relationships to the Act and other statutes (for example the note in s 3 that “The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation”), but these notes are interpretive aids rather than formal amendments.

For a complete formal amendment chronology beyond what is recorded in the Regulation text provided, users should check the authorised consolidated version or the NSW legislation database for amendment instruments listed against the Regulation. The Regulation itself records the major legislative transition (replacement of the 2017 Regulation) and the 2024 amendment to s 7; the remainder of its operational content appears to have been enacted at commencement on 1 September 2022.

The Regulation text supplied does not refer to any judicial decisions, appeals to courts, or litigation outcomes. It names administrative decisionmakers (the Corporation, its Director, the Committee and the Chairperson) and sets out internal appeal procedures (Part 4), but it contains no reported case citations, litigation summaries or references to specific tribunal or court determinations.

What the Regulation itself records that is relevant to dispute resolution:

• Part 4 creates an internal administrative appeal mechanism to the Committee for decisions under the Act, prescribing timelines, content of appeal notices, the powers of the Committee to determine appeals on the papers or following oral submissions, procedural limits (no calling of witnesses or cross‑examination), and notification duties (ss 19-21). Those provisions frame the administrative path for contestation before resort to external courts or tribunals, but do not address subsequent judicial review or litigation rights beyond the statutory appeal channel.

Absence of case law in the text

• Because the Regulation is a delegated legislative instrument prescribing administrative detail for the Act, any litigation that might arise would be under the Act or challenging administrative decisions made under the Act and this Regulation. The Regulation contains no internal record of any such litigation or judicial interpretation.

Guidance for practitioners

• Where legal outcomes or authoritative interpretations are required, practitioners must look beyond the Regulation’s text to decisions under the Act, tribunal determinations, judicial review proceedings in courts and any published guidance from the Corporation or the Committee. None of those items are provided or referred to in the Regulation text supplied.

In short, the Regulation establishes administrative and procedural frameworks susceptible to challenge in courts or tribunals, but the Regulation text itself does not record or supply any litigation history. Users should consult case law databases and the decisions records of relevant tribunals or courts for litigation that engages the Act and the Regulation.

The Regulation contains a number of technical and time‑sensitive provisions that can produce operational pitfalls if overlooked. The following points are grounded in the text and are likely to be material in practice.

Timing and retrospective thresholds

• Levy rate change is time‑dependent: 0.35% applies until 31 December 2022 and 0.25% from 1 January 2023 (s 14). Projects straddling those dates must be carefully allocated to the correct rate. Related calculations for any additional levy amount under the Act are to be calculated at the same prescribed rate (s 14 note). Practitioners should not assume a uniform rate across a project without checking the date the cost is incurred or the Act’s relevant charging provision.

Size thresholds change

• The exemption threshold in s 12(1)(a) rises from $25,000 until 31 December 2022 to $250,000 from 1 January 2023. This large numeric change materially affects small works: many projects that attracted a levy under the pre‑2023 threshold may be exempt after 1 January 2023. The change is in the Regulation itself, so project timing and dates on contracts or completion/determinate events are critical.

Voluntary component and owner‑builder nuances

• The voluntary component exemption is capped at 50% of the cost of erecting the building as assessed in the opinion of the Corporation (s 12(3), definition of voluntary component). The cap is administered by the Corporation: the exemption requires satisfaction by the Corporation and creates a discretionary assessment that can vary by case. Voluntary labour expressly includes the labour of an owner‑builder (s 12(3) note), which interacts with the definition of owner‑builder under the Home Building Act 1989 (s 12(3)).

Bushfire relief statutory window and application deadline

• The bushfire relief exemption (s 13) applies only to works replacing or repairing buildings destroyed or damaged by bushfire between 1 July 2019 and 2 March 2020 and does not apply to works by or on behalf of the Crown (s 13(1)-(2)). The exemption covers the first $1,000,000 of the cost but is conditional on making a written application to the Corporation by 2 March 2023 or by a later date approved by the Corporation (s 13(3)-(4)). That deadline means there is a statutory cut‑off for claiming the exemption, unless the Corporation approves a later date , the Regulation gives the Corporation discretion to allow a later date but does not set criteria for approval.

Service credit and transferred records adjustment

• Where an adjustment under s 24 of the Act is engaged, the Regulation prescribes the worker’s period of service must be adjusted to 220 days less the number of days the worker is already entitled to be credited in relevant records (s 9). Practitioners should note that this is a fixed numerical adjustment (220 days) and that “relevant records” are records kept under a corresponding law. The consequence for service credit calculations can be material to entitlement thresholds.

Non‑service day categories include public employment and Commonwealth places

• Non‑service days expressly include days on which a worker performs building and construction work as an employee of the Crown, a local council or county council under an arrangement that does not provide for payment of long service benefits (s 7(1)(c)). Section 7(1)(c1) also treats work on Commonwealth places (within the State) as non‑service days. That has the effect of excluding service credit accrual in those circumstances and is a nuance often relevant to workers employed on multi‑jurisdictional or government projects.

Record production requirement for electronic records

• Both ss 22(2) and 23(2) prescribe that electronic books and records must be capable of being produced in written form. Maintaining records only in a format that cannot be printed or otherwise produced in writing would fail the Regulation’s requirement.

Strict, but slightly flexible, appeals timetable

• The default appeal period is 42 days after notification of the decision appealed against (s 19(1)). However, the Chairperson may, if satisfied of exceptional circumstances, permit an appeal up to six months after notification (s 19(2)). The appeal regime therefore has a strict default window with limited grace built in, dependent on discretionary satisfaction of exceptional circumstances by the Chairperson.

Penalty notices limited to specified provisions

• Schedule 1 lists specific sections of the Act for which penalty notices may be issued and limits issuance where the provision is itself qualified (Sch 1 cl 1). Practitioners must ensure the infractions at issue align with the listed sections and the qualifying words of those sections; a misapplied penalty notice could be invalid if the underlying provision is qualified and the particular facts do not fall within the limited operation.

Certification concentrated in one office

• The Regulation prescribes the office of the Director of the Corporation for levy certification (s 16). Because certification may be a precondition to legal effects under the Act, reliance on a single office for certification can create operational bottlenecks or delays if not managed.

Interest calculation and periodicity

• Overdue interest is linked to the RBA cash rate plus 6 percentage points, with the relevant published cash rate taken immediately before the commencement of each half‑year period (s 17). Interest calculation therefore requires attention to the correct reference date for each accrual period and to potential cash rate volatility.

Preservation of pre‑existing effects

• Section 25 preserves acts and matters that had effect under the 2017 Regulation immediately before repeal. Practitioners dealing with legacy matters should not assume that repealing the prior Regulation removed prior rights or obligations; the saving clause preserves continuity.

Each of these points is supported by text in the Regulation. Overlooking timing, documentation, the Corporation’s discretionary satisfaction tests, or the precise record production requirements are concrete practical risks under the Regulation.

Compliance under the Regulation requires attention to several distinct operational obligations involving recordkeeping, levy calculation and payment, application for exemptions or refunds, procedural adherence for appeals, and readiness for administrative interaction. The following steps are grounded in the Regulation’s provisions.

1. Identify applicable awards and instruments

• Determine whether work and workers fall within the awards and Commonwealth industrial instruments prescribed by the Regulation (ss 4-5). For purposes of the Act’s definitions (s 3), check whether the relevant modern award or State award listed in s 4 applies to the worker and whether any enterprise agreement or transitional instrument listed in s 5 is relevant. Use the prescribed lists to identify coverage and applicable pay classifications.

2. Use the prescribed “standard pay” benchmark where required

• When the Act requires “standard pay” for calculations, apply the Regulation’s prescription: ordinary pay payable at the rate for a carpenter and joiner Level 3 (CW/ECW 3) under the Building and Construction General On‑site Award 2020 for five working days (s 6). Ensure payroll calculations reflect that benchmark when the Act calls for it.

3. Maintain the required employer books and records

• Keep and be able to produce the specific employer records listed in s 22: time sheets/attendance records and particulars including name, address, email, registration number, kind of work, award under which the worker is paid, details of Long Service Leave Act payments, total number of days each week the worker performed building and construction work for more than half the ordinary work day, payslips and PAYG payment summary statements. If records are electronic, ensure they are printable or otherwise producible in written form (s 22(2)). This is a central compliance obligation and supports audits, claims and appeals.

4. Ensure subcontractor records are maintained and producible

• Require subcontractors to keep copies of financial records relating to service credit claims and copies of the claims themselves as mandated by s 23, and ensure electronic records can be produced in written form (s 23(2)). Consider contract clauses to ensure subcontractors provide access to these records on request.

5. Calculate levies using the correct rate and ascertain exemptions early

• For levies on erection of buildings, apply 0.35% of the cost until 31 December 2022 and 0.25% from 1 January 2023 (s 14). Before applying or remitting levy payments, check exemption criteria in s 12: small works below the monetary threshold (note the threshold change from $25,000 to $250,000 depending on date), works for certain public bodies where workers are employed directly by the body, exempt development under the planning instrument, and voluntary component exemptions for relevant persons up to 50% of the cost (s 12(1)-(3)). For bushfire relief rebuilding works in the specified period, assess entitlement to the first $1,000,000 exemption and submit the required written application to the Corporation before 2 March 2023 or seek a later date approved by the Corporation if necessary (s 13(3)-(4)).

6. Apply for refunds where levies have been overpaid

• If a levy has been paid but later found not payable under the voluntary component exemption or the bushfire relief exemption, claim the statutory refund (s 12(2), s 13(5)). Keep documentary evidence to support the refund claim for the Corporation’s assessment.

7. Manage certification and payment timing to avoid interest

• Seek certification from the Director of the Corporation where certification of levy payment is required under the Act (s 16). Be aware that overdue levy amounts attract interest at the prescribed rate (cash rate + 6 percentage points) calculated against the correct RBA cash rate reference dates (s 17). Treat timely payment as a compliance priority to avoid those additional costs.

8. Prepare for appeals with form‑ and time‑bound procedures

• If disputing a decision under the Act, lodge a notice of appeal with the Committee Secretary in the form approved by the Committee within 42 days of being notified of the decision (s 19(1), s 20(1)). If exceptional circumstances apply, be prepared to seek an extension from the Chairperson within six months of notification (s 19(2)). Ensure an appeal notice includes the decision or part appealed, grounds of appeal, contact details, whether oral submissions will be made and how (in person or audio visual link and with or without a legal representative), and any other details required by the Committee (s 20(2)). Remember that the Committee may determine appeals on papers if the appellant does not indicate intent for oral submissions, and that calling witnesses or cross‑examination is not permitted at hearings (s 21).

9. Consent to electronic service where appropriate, and ensure capacity to receive and store

• If intending to accept service by web portal, provide consent so documents may be served by electronic message using the web portal (s 24). Ensure systems are in place to receive, store and convert electronic messages into written form where necessary.

10. Contractual and operational controls

• Where projects involve owner‑builders, churches or non‑profit organisations, or involve voluntary labour, review project contracts to capture evidence of the voluntary component and obtain the Corporation’s satisfaction where possible (s 12(1)(d), s 12(3)). For projects involving government bodies or local councils, verify employment arrangements and documentation showing that workers are employed under contracts of employment with the body if relying on exemption s 12(1)(b). Maintain records demonstrating the basis for any exemption claim.

11. Internal accountability and delegation

• For corporates and principals, nominate an internal compliance owner responsible for ensuring documentation, payment and refund claims meet the Regulation’s specifications. Because certification and many exemption decisions rely on the Corporation’s satisfaction or the Director’s certification (ss 12, 13, 16), ensure applications and supporting materials are prepared to the standard likely required by the Corporation.

12. Monitor external legal cross‑references

• The Regulation imports meanings and tests from other Acts (Fair Work Act, Income Tax Assessment Act, Environmental Planning and Assessment Act, Home Building Act, Long Service Leave Act, Veterans’ Entitlements Act). Ensure legal advice and compliance checks consider the applicable external definitions and thresholds referenced by the Regulation.

13. Penalty avoidance

• Recognise the specific provisions for which penalty notices may be issued (Schedule 1). Prevent incidents that could attract penalty notices by ensuring compliance with the obligations the listed sections impose, for example recordkeeping obligations linked to s 56 of the Act (Schedule 1 lists s 56(3) with a $200 penalty).

14. Document and retain audit trails for appeals and refund claims

• The Committee’s appeal process and the Corporation’s discretion on satisfactions require clear documentary bases. Keep contemporaneous records that evidence employment arrangements, costs and the character of labour (paid or voluntary), and make these available promptly on request.

Following these steps grounded in the Regulation’s explicit prescriptions will put employers, contractors and other affected persons in a position to meet the Regulation’s documentary, payment and procedural obligations. Where the Act itself contains substantive eligibility, liability or enforcement rules, consult the Act in tandem with the Regulation because the Regulation implements and supplements Act provisions rather than replacing them.