Victorian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

LONG SERVICE BENEFITS PORTABILITY ACT 2018 - SCHEDULE 2

Schedule 2—Contract cleaning industry

Sections 3, 21(4)(b)(i), 55(1)(g)(i)

Part 1—Contract cleaning industry

        1     What is the contract cleaning industry ?

The "contract cleaning industry" is—

        (a)     in relation to Victoria—the industry in which employers provide cleaning work to other people through the provision of workers' services; and

        (b)     in relation to a reciprocating jurisdiction—the contract cleaning industry within the meaning of the corresponding law of that jurisdiction.

        2     What is cleaning work ?

    (1)     Subject to this clause, cleaning work is—

        (a)     work that has, as its only or main function, the bringing of premises into, or keeping of premises in, a clean condition; or

        (b)     an activity, or an activity of a class, prescribed to be cleaning work.

    (2)     "Cleaning work" includes the cleaning of a swimming pool and the grounds surrounding the swimming pool.

    (3)     "Cleaning work" does not include—

        (a)     the removal of waste from commercial waste receptacles; or

        (b)     the bringing of grounds surrounding a building or house into, or keeping the grounds in, a clean condition; or

        (c)     work of a cleaning nature performed on a building or house under construction; or

        (d)     work of a gardening nature, including the removal or alteration of vegetation; or

        (e)     an activity, or an activity of a class, prescribed not to be cleaning work.

        3     Who is an employer ?

    (1)     Subject to this clause, an employer for the contract cleaning industry is a person engaged in the industry in Victoria who employs someone else (whether in Victoria or elsewhere) to perform work in the industry.

    (2)     Also, a person is an employer for the contract cleaning industry if—

        (a)     the person employs or engages someone else (a worker ) to perform work in the industry for another person engaged in the industry in Victoria for fee or reward; and

        (b)     there is no contract to perform the work between the worker and the person for whom the work is performed.

    (3)     However, the following are not employers for the contract cleaning industry—

        (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 person who is, or is a member of a class, prescribed not to be an employer for the contract cleaning industry.

        4     Who is an employee ?

    (1)     Subject to subclause (2), an employee for the contract cleaning industry is an individual employed by an employer for the industry (whether in Victoria or elsewhere) and includes—

        (a)     an apprentice and any individual whose employment agreement requires the individual to learn or be taught cleaning work; and

        (b)     an individual employed on a casual or seasonal basis.

    (2)     An individual is not an employee for the contract cleaning industry if—

        (a)     the individual's name is included on the register of workers kept by the trustee in accordance with the trust deed under the Construction Industry Long Service Leave Act 1997 ; or

        (b)     the individual is, or is a member of a class, prescribed not to be an employee for the contract cleaning industry.

    (3)     In this clause—

trust deed and trustee have the same meaning as in the Construction Industry Long Service Leave Act 1997 .

        5     Who is a contract worker ?

    (1)     Subject to subclause (2), a contract worker for the contract cleaning industry is an individual who performs work in the industry for another person for fee or reward on the individual's own account.

    (2)     An individual is not a contract worker for the contract cleaning industry if—

        (a)     the individual's name is included on the register of working sub-contractors kept by the trustee in accordance with the trust deed under the Construction Industry Long Service Leave Act 1997 ; or

        (b)     the individual is, or is a member of a class, prescribed not to be a contract worker for the contract cleaning industry.

    (3)     Despite subclause (1) or clause 4, the following are taken to be contract workers rather than employees—

        (a)     the directors of a company whose only employees or contract workers are directors, if each of the directors participates in the management of the company or shares in its profits;

        (b)     the partners of a partnership.

    (4)     In this clause—

"trust deed" and trustee —see clause 4(3).

Part 2—Crediting service

        6     What is recognised service ?

    (1)     In this Schedule—

"recognised service", for a registered active worker for the contract cleaning industry, 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—

        (a)     has been granted long service leave; or

        (b)     has received a payment in lieu of long service leave.

    (2)     A registered active worker for the contract cleaning industry is taken to have completed a year of recognised service for each 365 days of recognised service.

        7     Crediting service

    (1)     Subject to Part 4, a registered active worker for the contract cleaning industry is to be credited in the workers register for the industry with one day of service for each day (including a day when the worker does not perform cleaning 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 cleaning 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 contract cleaning industry. Clause 21 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.

        8     What is a service period ?

    (1)     A service period for a person who is a registered active worker for the contract cleaning industry is a continuous period—

        (a)     beginning on the day when the person becomes a worker for the industry; and

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

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

        (a)     for an employee who was an employee of only one employer for the industry 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 industry 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)     for a worker who is an employee—because the employee has been dismissed by an employer to ensure that the employee does not take long service leave while in the employer's employment; or

        (c)     for a worker who is a contract worker—because the worker's engagement by an employer is ended to ensure that the worker does not take long service leave while engaged by the employer.

    (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 contract cleaning industry. Clause 21 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

Division 1—Entitlement to leave

        9     Entitlement to long service leave

At any time after completing 7 years of recognised service, a registered active worker for the contract cleaning industry is entitled to an amount of long service leave equal to 1/60th of the worker's total period of recognised service less any period of long service leave taken during that period.

        10     Long service leave does not include public holidays or annual leave

Long service leave does not include any public holiday occurring, or annual leave taken, during the period when the long service leave is taken.

        11     When is long service leave to be taken?

    (1)     A registered active worker for the contract cleaning industry may make a request to the employer to take long service leave for a period of not less than one day.

    (2)     The employer must grant the worker's request as soon as practicable after receiving it unless the employer has reasonable business grounds for refusing the request.

    (3)     If the employer refuses the request, the worker may apply to the Authority for a determination under subclause (5).

    (4)     As soon as practicable after receiving an application under subclause (3), the Authority must—

        (a)     notify the employer in writing of the application; and

        (b)     invite the employer to make a written submission within 14 days of the notification.

    (5)     After considering any submission received from the employer within the period referred to in subclause (4)(b) and any submission made by the worker, the Authority must make a written determination as to the taking of the requested leave, including the timing and length of the leave, and notify the worker and the employer in writing of the determination.

Note

Non-compliance with the determination is an offence—see section 65.

        12     Entitlement to payment in lieu of leave on leaving the contract cleaning industry or death

    (1)     This clause applies if a registered active worker for the contract cleaning industry who is entitled to long service leave permanently leaves the industry or dies before taking all the long service leave to which the worker is entitled.

    (2)     The worker or, in the case of death, the worker's personal representative, is entitled to payment in lieu of the long service leave to which the worker is entitled as at the date of leaving the industry or death.

Division 2—Payments

        13     What is ordinary pay ?

    (1)     Subject to this clause, the ordinary pay of a registered active worker for the contract cleaning industry is the salary or wages, and allowances (including shift allowances, however described), paid or payable to the worker for work performed in the industry.

    (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 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.

        14     Payments for leave

    (1)     This clause applies to—

        (a)     a registered active employee for the contract cleaning industry who has been granted long service leave under clause 11; and

        (b)     a registered active contract worker for the contract cleaning industry who is entitled to long service leave for work performed in the industry.

    (2)     The employee or contract worker may apply to the Authority, in the approved form, for payment for the leave.

    (3)     The Authority must pay the applicant the amount payable under clause 16 if the Authority is satisfied that—

        (a)     the applicant is entitled to long service leave under this Act for work performed in the contract cleaning industry; and

        (b)     the applicant has been granted leave by the applicant's employer.

    (4)     The Authority must pay an amount payable under this clause not later than 21 days after the date of the application.

        15     Payment in lieu of leave

    (1)     If a registered active worker for the contract cleaning industry, or the worker's personal representative, is entitled to payment in lieu of long service leave under this Act, the worker or personal representative may apply to the Authority, in the approved form, for the payment.

    (2)     An application by a registered active worker who leaves the contract cleaning industry because of total incapacity must be accompanied by a certificate of a registered medical practitioner certifying that the worker is totally incapacitated for employment or engagement in the industry.

    (3)     An application by a registered active worker who leaves the contract cleaning industry for reasons other than total incapacity must be accompanied by a statutory declaration by the applicant stating that the applicant—

        (a)     has permanently left the contract cleaning industry; and

        (b)     does not intend to return to work in the industry.

    (4)     The Authority must pay the applicant the amount payable under clause 16 if the Authority is satisfied that the applicant is entitled to payment in lieu of long service leave under this Act for work performed in the contract cleaning industry.

        16     How are payments calculated?

For the purposes of clauses 14 and 15, the amount payable to a registered active worker or the worker's personal representative for, or in lieu of, long service leave is—

        (a)     for any part of the entitlement to long service leave accrued as an employee—the amount calculated in accordance with clause 17; and

        (b)     for any part of the entitlement to long service leave accrued as a contract worker—the amount calculated in accordance with clause 18.

        17     Calculating leave payments for service as an employee

    (1)     The amount payable for long service leave for service accrued as a registered active employee for the contract cleaning industry must be calculated—

        (a)     on the lesser of—

              (i)     the number of days of long service leave granted to the employee under clause 11; and

              (ii)     the number of days of the employee's remaining long service leave credit on the workers register for the contract cleaning industry; and

        (b)     on the basis of the employee's ordinary pay at the time the leave commences.

    (2)     The amount payable in lieu of long service leave for service accrued as a registered active employee for the contract cleaning industry must be calculated—

        (a)     on the number of days of the employee's remaining long service leave credit on the workers register for the contract cleaning industry; and

        (b)     on the basis of the employee's ordinary pay immediately before the employee left the industry or died.

        18     Calculating leave payments for service as a contract worker

    (1)     The amount payable for long service leave, or for payment in lieu of long service leave, for service accrued as a registered active contract worker for the contract cleaning industry is the total of the following for the service—

        (a)     amounts paid by the worker to the Authority under section 32(2); and

        (b)     interest at the determined rate calculated from the date of receipt of each amount paid under section 32(2) until the designated day for the leave.

    (2)     The Governing Board must determine an interim rate of interest from time to time before the determination of the rate under subclause (3).

    (3)     As soon as practicable after the end of each financial year the Governing Board must determine the rate of interest for that financial year to be—

        (a)     if the contract cleaning industry funds invested made a return—75% of the rate of the return for the financial year; or

        (b)     if the funds did not make a return or made a loss—nil.

    (4)     In this clause—

"designated day" means—

        (a)     if the worker is taking long service leave—the day the leave begins; or

        (b)     if the worker is being paid in lieu of long service leave—the day the payment is made;

"determined rate" means the rate of interest determined under subclause (2) or (3) as applicable.

        19     Payment by Authority on reciprocal authority's behalf

    (1)     This clause applies to a registered active worker for the contract cleaning industry who has a long service leave entitlement under this Act and a corresponding law.

    (2)     The worker may apply to the Authority for payment of a long service leave 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.

        20     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 a long service leave entitlement under this Act for work performed in the contract cleaning industry.

    (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

        21     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 contract cleaning industry—

        (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 or engagement 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 engagement; 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 or engagement caused by the employer with the intention of avoiding an obligation in relation to long service leave; 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 contract cleaning industry.

    (3)     If a worker enters into an employment agreement with an employer within 52 weeks after completing an apprenticeship with the employer, the period of apprenticeship is taken to be a period of employment or engagement when calculating the length of the worker's period of continuous employment or engagement.

Part 5—Benefits under other laws

        22     Benefits under other laws—election

    (1)     A registered active worker for the contract cleaning industry must elect the law under which long service benefits are to be taken if the worker is eligible both for long service benefits under this Act and long service benefits under one or more of the following—

        (a)     the Long Service Leave Act 2018 ;

        (b)     a corresponding law;

        (c)     a fair work instrument or a fair work instrument given continuing effect under the Fair Work Transition Act.

    (2)     If so, the worker must nominate to the Authority in writing—

        (a)     the law or instrument under which the worker elects to take the long service benefits; and

        (b)     the service period, or part of the service period, for which the election is made.

    (3)     If the Authority receives a written nomination, the Authority must—

        (a)     remove from the relevant workers register credit for service equal to the service period, or part of the service period, nominated; and

        (b)     keep a record of the credit for service removed.

        23     Benefits under other laws—reimbursement of employer

    (1)     This clause applies if—

        (a)     a registered active worker for the contract cleaning industry has made an election under clause 22; and

        (b)     an employer for the contract cleaning industry pays the worker an amount under the law or instrument under which the worker has elected to take long service benefits.

    (2)     The Authority may reimburse the employer the amount paid under the law or instrument under which the worker has elected to take long service benefits, less any amount outstanding that is payable by the employer to the Authority, if—

        (a)     the employer applies to the Authority; and

        (b)     the Authority is satisfied that the amount paid by the employer was properly paid under the law or instrument.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback