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LONG SERVICE BENEFITS PORTABILITY ACT 2018 - SCHEDULE 1

Schedule 1—Community services sector

Sections 3, 21(4)(a)

Part 1—Community services sector

        1     What is the community services sector ?

The "community services sector" is—

        (a)     in relation to Victoria—the sector in which community service work is performed; and

        (b)     in relation to a reciprocating jurisdiction—the community services sector or community sector industry within the meaning of the corresponding law of that jurisdiction.

        2     What is community service work ?

    (1)     Subject to subclause (2), community service work is work that provides—

        (a)     training and employment support, or employment placement, for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or

        (b)     financial support or goods for the assistance of persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or

        (c)     accommodation, or accommodation-related support services, for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or

        (d)     home care support services for persons with a disability or other persons who are vulnerable, disadvantaged or in crisis; or

        (e)     other support services for—

              (i)     persons with a disability or their carers; or

              (ii)     persons who are vulnerable, disadvantaged or in crisis; or

        (f)     community legal services, community education and information services, or community advocacy services; or

        (g)     community development services; or

        (h)     fundraising assistance for community groups; or

              (i)     services providing assistance to particular cultural or linguistically diverse communities; or

        (j)     a service, or a service of a class, the provision of which is prescribed to be community service work.

(2)     Community service work does not include—

        (a)     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, unless such an activity, or class of activity, is prescribed to be community service work; or

        (b)     a service provided by an entity that is a licensed children's service under the Children's Services Act 1996 or an approved provider under the Education and Care Services National Law (Victoria), unless such a service, or class of service, is prescribed to be community service work; or

        (c)     an activity, or class of activity, prescribed not to be community service work.

        3     Who is an employer ?

    (1)     Subject to subclause (2), an employer for the community services sector is—

        (a)     a non-profit entity that employs one or more individuals to perform community service work; or

        (b)     an entity for profit that employs one or more individuals to perform community service work for persons with a disability; or

        (c)     a person who is, or is a member of a class, prescribed to be an employer for the community services sector.

    (2)     However, the following are not employers for the community services sector—

        (a)     the Commonwealth;

        (b)     the State;

        (c)     an entity that has a governing body appointed under an Act of the Commonwealth or the State;

        (d)     a municipal council or other public statutory body;

        (e)     a public health service or a public hospital under the Health Services Act 1988 ;

        (f)     a person who is, or is a member of a class, prescribed not to be an employer for the community services sector.

    (3)     In this clause—

"entity for profit" means a corporation that, or individual who, is not a non‑profit entity;

"non-profit entity" means—

        (a)     a corporation—

              (i)     that is not carried on for the profit or gain of its individual members; and

              (ii)     that by the terms of its constituent documents, is prohibited from making a distribution to its members, whether in money, property or otherwise; or

        (b)     an individual carrying on a business or other activity for a purpose that does not include the profit or gain of the individual.

        4     Who is an employee ?

    (1)     Subject to subclause (2), an employee for the community services sector is an individual employed by an employer for the sector (whether in Victoria or elsewhere) and includes an individual employed on a casual basis.

    (2)     The following are not employees for the community services sector—

        (a)     if the employer operates a business in addition to being a licensed children's service under the Children's Services Act 1996 or an approved provider under the Education and Care Services National Law (Victoria) —an individual employed by the employer unless the individual's role is to care for children or coordinate the care of children for the licensed children's service or approved provider;

        (b)     if the employer is a community health centre registered under section 48 of the Health Services Act 1988 —an individual employed by the employer unless the individual's role is to carry out community service work at the community health centre;

        (c)     if the employer provides services for persons with a disability—an individual employed by the employer whose primary role is to provide health services to those persons;

        (d)     an individual to whom any of the following awards or agreements apply—

              (i)     the Aged Care Award 2010, as amended and in force from time to time;

              (ii)     a prescribed award or agreement;

        (e)     an individual who is, or is a member of a class, prescribed not to be an employee for the community services sector.

Part 2—Crediting service

        5     What is recognised service ?

    (1)     In this Schedule—

"recognised service", for a registered active worker for the community services sector, means the total number of days or part days of service credit for all of the service periods of the worker less any days of service credit for which the worker has received a long service benefit payment.

    (2)     A registered active worker for the community services sector is taken to have completed a year of recognised service for each 365 days of recognised service.

        6     Crediting service

    (1)     Subject to Part 4, a registered active worker for the community services sector is to be credited in the workers register for the sector with one day of service for each day (including a day when the worker does not perform community service work) in each service period of the worker on or after the worker's registration day.

Example

The worker must be credited with one day of service for each day in a service period even if the worker only performs community service work one day a week during that period.

    (2)     However, the registrar must not enter more than 365 days of service in the workers register for the worker for a financial year.

Note

Part 4 contains ancillary provisions for working out the service credits for a worker for the community services sector. Clause 14 specifies periods of absence from work that are taken to be days of service and periods of absence from work that are taken not to be days of service.

        7     What is a service period ?

    (1)     A service period for a person who is a registered active worker for the community services sector is a continuous period—

        (a)     beginning on the later of—

              (i)     the day when the person becomes a worker for the sector; and

              (ii)     the day on which this Schedule comes into operation; and

        (b)     ending on the day when the person stops being a worker for the sector.

    (2)     For the purposes of subclause (1)(b), a person stops being an employee for an employer for the sector at the end of a quarter if—

        (a)     for an employee who was an employee of only one employer for the sector in the quarter—the employer's quarterly return for the following quarter shows no ordinary pay for the employee; or

        (b)     for an employee who was an employee of 2 or more employers for the sector in the quarter—none of the employers' quarterly returns for the following quarter shows ordinary pay for the employee.

    (3)     Despite subclause (1), a registered active worker's service period is not taken to end if a person stops being a worker—

        (a)     because of incapacity for an injury for which the worker is entitled to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 ; or

        (b)     because the worker has been dismissed by an employer to ensure that the worker is not entitled to long service benefits while in the employer's employment.

    (4)     This clause is subject to Part 4.

Note

Part 4 contains ancillary provisions for working out the service period for a worker for the community services sector. Clause 14 sets out situations in which a period of absence is taken to be a day of service for crediting service.

Part 3—Long service benefits

        8     Entitlement to long service benefit payment

    (1)     At any time after completing 7 years of recognised service, a registered active worker for the community services sector is entitled to payment of a long service benefit equal to 1/60th of the worker's total period of recognised service less any long service benefit paid during that period.

    (2)     The amount of the benefit is to be calculated on the basis of the worker's ordinary pay at the time the application for payment is made.

    (3)     The regulations may prescribe the method by which the amount of the benefit is to be determined.

        9     What is ordinary pay ?

    (1)     Subject to this clause, the ordinary pay of a registered active worker for the community services sector is the salary or wages paid or payable to the worker for work performed in the sector.

    (2)     A worker's "ordinary pay" includes compensation payments under the Workplace Injury Rehabilitation and Compensation Act 2013 or any other payments in the nature of compensation for injury suffered in relation to work.

    (3)     A worker's ordinary pay does not include—

        (a)     amounts paid to the worker for—

              (i)     working overtime; or

              (ii)     reimbursement for expenses incurred by the worker; or

              (iii)     the use of materials, equipment or a motor vehicle provided by the worker; or

        (b)     allowances paid to the worker, including shift allowances and allowances for travel, meals or protective clothing; or

        (c)     amounts paid to the worker on termination of employment, including—

              (i)     payment in lieu of notice; and

              (ii)     lump sum payment for accrued leave; and

              (iii)     redundancy; or

        (d)     superannuation contributions made by the worker's employer.

        10     Determination and payment of long service benefit

    (1)     A registered active worker for the community services sector may apply to the Authority, in the approved form, for—

        (a)     a determination as to whether the worker is entitled to a long service benefit under clause 8; and

        (b)     if the worker is so entitled—payment of the benefit.

    (2)     Within 21 days after the date of the application, the Authority must—

        (a)     determine whether the worker is entitled to a long service benefit under clause 8; and

        (b)     notify the worker in writing of the determination; and

        (c)     if the worker is entitled to a benefit—pay the benefit to the worker.

        11     Entitlement to payment of benefit on leaving the community services sector or death

    (1)     This clause applies if a registered active worker for the community services sector who is entitled to long service benefits permanently leaves the sector or dies before being paid all the long service benefits to which the worker is entitled.

    (2)     On application by the worker or, in the case of death, by the worker's personal representative, the Authority must pay the worker or representative an amount in respect of the long service benefits to which the worker is entitled as at the date of leaving the sector or death, calculated in accordance with the regulations.

        12     Payment by Authority on reciprocal authority's behalf

    (1)     This clause applies to a registered active worker for the community services sector who has an entitlement to long service benefits under this Act and a corresponding law.

    (2)     The worker may apply to the Authority for payment of a long service leave benefit entitlement worked out in accordance with the corresponding law.

    (3)     The Authority must pay the worker the amount of the entitlement worked out in the way stated in the corresponding law if the Authority is authorised by the reciprocal authority to make the payment.

        13     Payment by reciprocal authority on Authority's behalf

    (1)     This clause applies if, under a corresponding law, a reciprocal authority pays to a person an amount that, but for the payment, would have been payable for an entitlement to long service benefits under this Act for work performed in the community services sector.

    (2)     If the Authority is notified about the payment and is satisfied that the payment was properly made, the Authority must reimburse the reciprocal authority the amount paid.

    (3)     If the Authority makes a reimbursement under subclause (2), the obligation of the Authority to make the payment to the person for the entitlement is discharged.

Part 4—Ancillary provisions for
working out service

        14     Periods of absence from work taken to be days of service for crediting service

    (1)     The following periods of absence from work are taken to be days of service for the purpose of crediting the days of service of a worker for the community services sector—

        (a)     a period of paid leave;

        (b)     if a period of unpaid leave is less than or is 52 weeks, that period;

        (c)     if a period of unpaid leave is more than 52 weeks, the initial 52 weeks;

        (d)     if a period of unpaid leave is more than 52 weeks, the entire period of unpaid leave if—

              (i)     the period of absence is taken to be a period of employment in accordance with the relevant employment agreement; or

              (ii)     the employer and the worker agreed in writing before the leave was taken that the period is taken to be a period of employment; or

              (iii)     the leave is taken on account of illness or injury or is any other form of leave provided for under the relevant employment agreement;

        (e)     a period of absence arising from—

              (i)     an interruption to, or termination of, employment caused by the employer with the intention of avoiding an obligation in relation to long service benefits; or

              (ii)     the transfer of assets from one employer to another if the worker usually performs duties which are connected with those assets;

        (f)     any other period of absence that the employer and worker agree to being credited as days of service of the worker.

    (2)     Any periods of absence from work other than a period referred to in subclause (1) are taken not to be days of service for the purpose of crediting the days of service of a worker for the community services sector.

Part 5—General

        15     No double-dipping

    (1)     If a registered active worker for the community services sector has an entitlement to long service leave, or the payment of long service benefits, under a fair work instrument, the entitlements of the worker and the obligations of the employer and the Authority under this Act are to be determined in accordance with the regulations.

    (2)     Regulations made for the purposes of subclause (1) must give effect to the following principles—

        (a)     a worker is not to be entitled to both long service leave under a fair work instrument and payment of a long service benefit under this Act in respect of the same service period;

        (b)     an employer is not to be required to pay a worker for long service leave under a fair work instrument and to pay a levy under this Act for the worker in respect of the same service period;

        (c)     the Authority is not to be required to pay a long service benefit to a worker under this Act and to reimburse an employer for long service leave granted to the worker under a fair work instrument in respect of the same service period.

    (3)     To avoid doubt, the regulations may modify the operation of the other provisions of this Act for the purpose of giving effect to the principles set out in subclause (2).

        16     Annual statement

    (1)     Within 30 days after the end of each financial year, the Authority must give each registered active worker for the community services sector a statement setting out—

        (a)     the amount of levy paid under this Act in respect of the worker; and

        (b)     the worker's current entitlement (if any) to long service benefits under this Act; and

        (c)     any other prescribed information.

    (2)     The statement may be given in any manner determined by the Authority.



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