Legal Insights

Long service portability in the Community Services Sector – an update

By Meredith Kennedy

• 24 February 2021 • 4 min read

In 2020, the Victorian government undertook a process of consultation regarding the operation of the Long Service Benefits Portability Interim Regulations 2019. In particular, questions regarding the scope and interpretation of regulations addressing the following issues were raised:

  • the definition of ‘community service work’
  • who is regarded as an ‘employer’ in the community services sector
  • who are regarded as ‘employees’ in the community services sector
  • the reimbursement of employers for double-dipping claims in the community services sector.

The new Long Service Benefits Portability Regulations 2020 (Regulations) seek to address some of the potential issues identified in feedback from employers and stakeholders about the Interim Regulations by introducing new definitions, removing the predominance test for employers and employees, and creating a new test linked to modern award coverage (awards can still cover employees even when an enterprise agreement applies to them).

In order to be covered by the Scheme, the Regulations now require that workers must:

  1. be employed by an eligible employer
  2. perform community service work
  3. be covered by one of the following modern awards:
    • Social, Community, Home Care and Disability Services Industry Award 2010
    • Children’s Services Award 2010
    • Educational Services (Teachers) Award 2010
    • Labour Market Assistance Industry Award 2020
    • Supported Employment Services Award 2020

Who is an eligible employer?

The new Regulations remove the predominance test for employers (which sought to determine whether or not an employer was primarily engaged in community service work) and provides that an employer in the community services sector is:

  • 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
  • an entity which is prescribed to be an employer for the community services sector.

Prescribed employers now include community health centres and women’s health services.

What is community service work?

Community service work refers to work which is performed in Victoria[1] and includes a wide range of services set out in both the Long Service Benefits Portability Act 2018 (Vic) (LSBP Act) and the Regulations. The Regulations now specify that community service work also includes:

  • home care support services provided in a private residence, irrespective of the age of the client (as distinct from aged care work which is otherwise outside the Scheme); and
  • services that support, supervise or manage the provision of community service work. This clarifies that all award covered workers in the community services sector who are performing community services work, either directly or indirectly, are eligible for the portability scheme (for example, managing directors and CEOs whose employment is covered by one of the specified awards might be eligible).

Double-dipping provisions

A number of submissions called for revision of the double-dipping regulations which currently apply only when workers have an entitlement to long service leave under the Scheme as well as a Fair Work Instrument (such as an enterprise agreement). For example, some submissions sought an extension of the double-dipping provisions to the Long Service Leave Act 2018 (Vic) (LSL Act) so that employers are not required to pay both a levy to the Portable Long Service Authority on behalf of a worker and pay the same worker for a long service entitlement under the LSL Act for the same period of service without reimbursement from the Authority.

As this amendment would require changes to the LSPB Act, it was outside the scope of the review of the Regulations. However, this issue has been recognised as having potentially significant impacts on employers. A review of the LSBP Act is due to occur on 1 July 2022 and we anticipate that this matter, as well as other matters regarding reimbursement of the levy,[2] will be raised for further consideration at that stage.

[1] The Act also allows for reciprocal agreements with other States and Territories. However, at this stage, the Minister has not entered into formal agreements. The Australian Capital Territory and Queensland are at this time the only other jurisdictions which include the community services sector in portable long service schemes.

[2] For example, submissions were made that the levy should be reimbursed in respect of workers who leave the community services sector without qualifying for a long service benefit or who become ineligible after previously being eligible under the LSBP Act.

Need more information on LSBP Act?

Please contact a member of our Employment, Safety & People Team.

By Meredith Kennedy

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