Long Service Benefits Portability Regulations 2020
S.R. No. 91/2020
Version incorporating amendments as at
10 May 2022
TABLE OF PROVISIONS
Regulation Page
Part 1—Preliminary 1
1 Objective 1
2 Authorising provision 1
3 Commencement 1
4 Revocation 1
5 Definition 1
Part 2—Quarterly returns 2
6 Quarterly returns by employers 2
Part 3—Administration 3
7 Disclosure of information to other entities and authorities 3
Part 4—Community services sector 4
Division 1—Community services sector 4
8 What is community service work? 4
9 Who is not an employer for the purposes of the community services sector? 5
10 Who are not employees for the purposes of the community services sector? 6
11 Calculation of benefit on leaving the community services sector or death 7
Division 2—No double-dipping 7
12 No double-dipping 7
Part 5—Contract cleaning industry 10
13 Who are excluded employees for the purposes of the contract cleaning industry? 10
Part 6—Security industry 11
14 Who are excluded employees for the purposes of the security industry? 11
Schedule 1—Bush nursing centres 12
Schedule 2—Bush nursing hospitals 13
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Endnotes 14
1 General information 14
2 Table of Amendments 16
3 Explanatory details 17
Version No.003
Long Service Benefits Portability Regulations 2020
S.R. No. 91/2020
Version incorporating amendments as at
10 May 2022
Part 1—Preliminary
1 Objective
The objective of these Regulations is to prescribe matters authorised to be prescribed by, and to ensure the effective implementation of, the Long Service Benefits Portability Act 2018.
2 Authorising provision
These Regulations are made under section 79 of the Long Service Benefits Portability Act 2018.
3 Commencement
These Regulations come into operation on 1 October 2020.
4 Revocation
The Long Service Benefits Portability Interim Regulations 2019[1] are revoked.
5 Definition
In these Regulations—
the Act means the Long Service Benefits Portability Act 2018.
Part 2—Quarterly returns
6 Quarterly returns by employers
For the purposes of paragraph (c) of the definition of required information in section 27(2) of the Act, the prescribed information is—
(a) for each of the employer's workers, any long service benefits given to the worker under a fair work instrument during the quarter, including—
(i) long service leave granted to, or taken by, the worker; and
(ii) payments for, or in lieu of, long service leave made to the worker; and
(iii) any other long service benefits paid or given to the worker; and
(iv) the date on which the benefits were paid or given; and
(v) the service period to which the benefits relate; and
(vi) the name of any other fair work instrument that provides for a long service leave entitlement that applies to a worker or workers; and
(b) for each worker who ceased to be employed by the employer during the quarter, the date the worker ceased employment.
Part 3—Administration
7 Disclosure of information to other entities and authorities
(1) For the purposes of paragraph (b) of the definition of Commonwealth government entity in section 51(3) of the Act, the Australian Taxation Office is a prescribed entity.
(2) For the purposes of paragraph (c) of the definition of Victorian government entity in section 51(3) of the Act, the Labour Hire Licensing Authority established by section 50 of the Labour Hire Licensing Act 2018 is a prescribed entity.
Part 4—Community services sector
Division 1—Community services sector
8 What is *community service work*?
(1) For the purposes of clause 2(1)(j) of Schedule 1 to the Act, the provision of any of the following services is prescribed to be community service work—
(a) social work or welfare work;
(b) home care support services provided in a private residence, irrespective of the age of the client;
(c) crisis counselling;
(d) emergency material relief;
(e) custodial or supportive care and social welfare;
(f) assessment of individual or family needs;
(g) social and community development, education or advocacy;
(h) family support services;
(i) youth work or youth services;
(j) housing and homelessness services;
(k) family violence prevention and response;
(l) neighbourhood houses;
(m) drug and alcohol services;
(n) migrant and refugee support services;
(o) services that support, supervise or manage the provision of any of the services referred to in paragraphs (a) to (n).
(2) For the purposes of clause 2(2)(a) of Schedule 1 to the Act, an activity that is funded by the National Disability Insurance Scheme within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth is prescribed to be community service work.
Note
These activities were prescribed to be community service work under the Long Service Benefits Portability Interim Regulations 2019 on and from 1 January 2020.
(3) For the purposes of clause 2(2)(b) of Schedule 1 to the Act, a service provided by an entity that is an approved children's service under the Children's Services Act 1996 or an approved provider under the Education and Care Services National Law (Victoria) (except an entity that is also a registered school within the meaning of the Education and Training Reform Act 2006) is prescribed to be community service work.
Note
These services were prescribed to be community service work under the Long Service Benefits Portability Interim Regulations 2019 on and from 1 January 2020.
9 Who is not an *employer* for the purposes of the community services sector?
For the purposes of clause 3(2)(f) of Schedule 1 to the Act, the following persons and classes are prescribed not to be employers for the community services sector—
(a) an aged care service operated by a hospital within the meaning of section 3 of the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Act 2015;
(b) a bush nursing centre specified in Schedule 1;
(c) a bush nursing hospital specified in Schedule 2;
(d) a health or related service within the meaning of section 3(1) of the Health Services Act 1988, except for—
(i) a registered community health centre, referred to in paragraph (ab) of that definition; and
(ii) a women's health service, referred to in paragraph (ac) of that definition; and
(iii) a person, body or organisation that provides, delivers, funds, facilitates access to or provides insurance in relation to health services, being services that include but are not limited to disability services, referred to in paragraph (b)(iii) of that definition;
(e) an entity for profit that is an approved children's service under the Children's Services Act 1996 or an approved provider under the Education and Care Services National Law (Victoria).
10 Who are not *employees* for the purposes of the community services sector?
(1) For the purposes of clause 4(2)(e) of Schedule 1 to the Act, an individual is prescribed not to be an employee for the community services sector unless the individual is employed under one of the following awards—
(a) the Social, Community, Home Care and Disability Services Industry Award 2010;
(b) the Children's Services Award 2010;
(c) the Educational Services (Teachers) Award 2010;
(d) the Labour Market Assistance Industry Award 2020;
(e) the Supported Employment Services Award 2020.
(2) For the purposes of subregulation (1), an individual is taken to be employed under an award even if an enterprise agreement or an agreement-based transitional instrument within the meaning of the Fair Work Transition Act applies to the individual's workplace or to the individual.
11 Calculation of benefit on leaving the community services sector or death
For the purposes of clause 11(2) of Schedule 1 to the Act, the amount payable to the worker or representative is, if the worker has completed at least 7 years of recognised service, an amount—
(a) equal to 1/60th of the worker's total period of recognised service, less any long service benefit paid during that period; and
(b) calculated on the basis of the worker's ordinary pay at the date the worker left the sector or died.
Division 2—No double-dipping
12 No double-dipping
(1) For the purposes of clause 15 of Schedule 1 to the Act, a reference in section 5 of the Act to a worker in a covered industry does not include a registered active worker referred to in clause 15(1) of Schedule 1 to the Act.
Reg. 12(2) amended by S.R. No. 95/2021 reg. 4(1).
(2) For the purposes of clause 15 of Schedule 1 to the Act, a registered active worker referred to in clause 15(1) of Schedule 1 to the Act is entitled to long service leave under a fair work instrument, the Long Service Leave Act 2018 or a contract of employment but not payment of a long service benefit under the Act in respect of the same service period.
Reg. 12(3) amended by S.R. No. 95/2021 reg. 4(2).
(3) For the purposes of clause 15 of Schedule 1 to the Act, if a registered active worker referred to in clause 15(1) of Schedule 1 to the Act has an entitlement to long service leave both under a fair work instrument, the Long Service Leave Act 2018 or a contract of employment and under the Act in respect of the same service period, and the worker has chosen to take an entitlement to long service leave under the fair work instrument, the Long Service Leave Act 2018 or the contract of employment, the employer of that worker is only required to pay the entitlement under the fair work instrument, the Long Service Leave Act 2018 or the contract of employment.
Reg. 12(4) amended by S.R. No. 95/2021 reg. 4(3).
(4) For the purposes of clause 15 of Schedule 1 to the Act, the Authority is not required to pay a long service benefit to a registered active worker referred to in clause 15(1) of Schedule 1 to the Act in respect of the same service period to which an entitlement to long service leave under a fair work instrument, the Long Service Leave Act 2018 or a contract of employment applies.
Reg. 12(5) amended by S.R. No. 95/2021 reg. 4(4).
(5) For the purposes of clause 15 of Schedule 1 to the Act, if an employer of a registered active worker referred to in clause 15(1) of Schedule 1 to the Act is required to pay the worker for long service leave under a fair work instrument, the Long Service Leave Act 2018 or a contract of employment in relation to the same, or part of the same, service period, the employer may recover from and be reimbursed by the Authority any amount paid under the fair work instrument, the Long Service Leave Act 2018 or the contract of employment for the worker.
(6) In this regulation, a reference to a registered active worker includes a personal representative for the purposes of clause 11(2) of Schedule 1 to the Act.
(7) In this regulation, a reference to a fair work instrument includes—
(a) a National Employment Standard within the meaning of the Fair Work Act; or
(b) a transitional instrument under the Fair Work Transition Act.
Part 5—Contract cleaning industry
Reg. 13 (Heading) amended by S.R. No. 26/2022 reg. 4(1).
13 Who are excluded employees for the purposes of the contract cleaning industry?
Reg. 13(1) amended by S.R. No. 26/2022 reg. 4(2).
(1) For the purposes of clause 4(2)(b) of Schedule 2 to the Act, an individual is prescribed to be an excluded employee for the contract cleaning industry if the individual is employed under one of the following awards—
(a) the Manufacturing and Associated Industries and Occupations Award 2020;
(b) the Vehicle Repair, Services and Retail Award 2020;
(c) the Airline Operations Ground Staff Award 2020;
(d) the Waste Management Award 2020.
(2) For the purposes of subregulation (1), an individual is taken to be employed under an award even if an enterprise agreement or an agreement-based transitional instrument within the meaning of the Fair Work Transition Act applies to the individual's workplace or to the individual.
Reg. 13(3) amended by S.R. No. 26/2022 reg. 4(2).
(3) For the purposes of clause 4(2)(b) of Schedule 2 to the Act, an individual is prescribed to be an excluded employee for the contract cleaning industry if the predominant activity of the individual's substantive role is not the personal delivery of services or the personal performance of activities that are cleaning work.
Part 6—Security industry
Reg. 14 (Heading) amended by S.R. No. 26/2022 reg. 5(1).
14 Who are excluded employees for the purposes of the security industry?
Reg. 14 amended by S.R. No. 26/2022 reg. 5(2).
For the purposes of clause 4(2)(b) of Schedule 3 to the Act, an individual is prescribed to be an excluded employee for the security industry if the predominant activity of the individual's substantive role is not the personal delivery of services or the personal performance of activities that are security work.
Schedule 1—Bush nursing centres
Regulation 9(b)
Balmoral Bush Nursing Centre
Buchan Bush Nursing Centre
Cann Valley Bush Nursing Centre
Dargo Bush Nursing Centre
Dartmoor and District Bush Nursing Centre
Dingee Bush Nursing Centre
Elmhurst Bush Nursing Centre
Ensay Bush Nursing Centre
Gelantipy District Bush Nursing Centre
Harrow Bush Nursing Centre
Lake Bolac Bush Nursing Centre
Lockington & District Bush Nursing Centre
Swifts Creek Bush Nursing Centre
Walwa Bush Nursing Centre
Woomelang & District Bush Nursing Centre
Schedule 2—Bush nursing hospitals
Regulation 9(c)
Ballan & District Soldiers' Memorial Bush Nursing Hospital & Hostel
Euroa Health
Heyfield Hospital Incorporated
Nagambie HealthCare
Neerim District Health Service
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Long Service Benefits Portability Regulations 2020, S.R. No. 91/2020 were made on 1 September 2020 by the Governor in Council under section 79 of the Long Service Benefits Portability Act 2018, No. 44/2018 and came into operation on 1 October 2020: regulation 3.
The Long Service Benefits Portability Regulations 2020 will sunset 10 years after the day of making on 1 September 2030 (see section 5 of the Subordinate Legislation Act 1994).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).
• Examples, diagrams or notes
All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).
• Punctuation
All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).
• Provision numbers
All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Long Service Benefits Portability Regulations 2020 by statutory rules, subordinate instruments and Acts.