Community Services Sector (Portable Long Service Leave) Act 2024 (NSW)

Community Services Sector (Portable Long Service Leave) Act 2024 No 39 An Act to establish a scheme for the portability of long service leave for workers in the community services sector; and to make consequential amendments to other legislation. Part 1 Preliminary 1 Name of Act This Act is the Community Services Sector (Portable Long Service Leave) Act 2024. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions The dictionary in Schedule 3 defines words used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 4 Meaning of "community service work" and "community service" (1) In this Act, community service work means— (a) work to provide a community service, or (b) work for an employer, if the predominant purpose of the employer is to provide a community service. Note— Under section 7, the Minister may declare work or an activity to be or not be community service work. (2) In this Act, community service means a service— (a) specified in Schedule 1, or (b) prescribed by the regulations. (3) The regulations may amend Schedule 1 by— (a) inserting a service into the schedule, or (b) amending a service specified in the schedule. 5 Meaning of "worker" (1) In this Act, worker means a person who— (a) is engaged, on a full-time, part-time or casual basis, by an employer to do community service work as an employee, or (b) does community service work for another person for fee or reward on the person's own account, and is not an employee (a contractor), or (c) is in a class prescribed by the regulations. Note— Under section 7, the Minister may declare a person to be a worker, employee or contractor. (2) In this Act, worker does not include the following— (a) a person doing community service work under— (i) a contract of service with a partnership if the person is a partner and participates in the management of the partnership or shares the profits, or (ii) a contract of service with the Commonwealth, the State or a local government authority, or (iii) a contract, whether or not a contract of service, with a corporation of which the person is a director, or (iv) a contract, whether or not a contract of service, with a trust of which the person is a trustee, (b) a person who is excluded by the regulations. 6 Meaning of "employer" (1) In this Act, employer means a person who— (a) employs 1 or more persons to do community service work, or (b) is in a class prescribed by the regulations. Note— Under section 7, the Minister may declare a person to be an employer. (2) A person is an employer only in relation to a person the employer employs to do community service work. (3) A person who supplies a person through a labour hire arrangement to do community service work is taken to be the employer who engages the person. (4) In this Act, employer does not include the following— (a) the Commonwealth, (b) the State, (c) a local government authority, (d) a company whose only workers are directors, if each of the directors participates in the management of the company or shares its profits, (e) a person to whom subsection (1)(a) applies who is excluded by the regulations. 7 Ministerial declarations about coverage of Act (1) The Minister may, by order published on the NSW legislation website, declare the following for the purposes of this Act— (a) work or an activity is or is not community service work, (b) a person is— (i) a worker, or (ii) an employee, or (iii) an employee of a particular employer, or (iv) a contractor, (c) a person is— (i) an employer, or (ii) an employer of a particular employee, or (iii) an employer with a predominant purpose of providing a community service. (2) The Interpretation Act 1987, sections 40 and 41 apply to an order under this section in the same way as the sections apply to statutory rules. 8 Community Services Sector Long Service Leave Committee (1) The Community Services Sector Long Service Leave Committee is constituted by this Act. (2) The Committee must consist of the following members— (a) the Secretary or a nominee of the Secretary, (b) 8 persons appointed by the Minister, as follows— (i) 2 persons nominated by a prescribed peak body representing workers, including workers in the community services sector, (ii) 2 persons nominated by a prescribed body representing workers in the community services sector, (iii) 2 persons nominated by a prescribed body representing employers in the community services sector, (iv) 2 persons nominated by another prescribed body representing employers in the community services sector. (3) The person specified in subsection (2)(a) must be the Chairperson of the Committee. (4) Schedule 2 contains provisions relating to the members and procedure of the Committee. Part 2 Registration of employers and workers Division 1 Registration of employers 9 Corporation must keep register of employers The Corporation must keep a register of persons who are registered as employers under this Act. 10 Registration of employers (1) The Corporation may, on application by a person, register the person as an employer. (2) A person must apply to the Corporation for registration as an employer within— (a) for a person who becomes an employer on or after the commencement of this Act—1 month after becoming an employer, or (b) for a person who is an employer immediately before the commencement of this Act—1 month after the commencement, or (c) a longer period specified by the Corporation. Maximum penalty—50 penalty units. (3) The Corporation must determine an application for registration of an employer by— (a) registering the person as an employer, if the Corporation is satisfied the person is an employer, or (b) refusing to register the person as an employer. 11 Information in employers register (1) The employers register must include the following information for each registered employer— (a) the employer's name, (b) the employer's trading name, if any, (c) the employer's ABN, if any, (d) the address of the employer's principal place of business, (e) if the employer is a corporation— (i) the address of the corporation's registered office, and (ii) the corporation's ACN, (f) the community services provided by the employer, (g) the day on which the Corporation received the person's application for registration, (h) if the person is no longer an employer—the day the person ceased being an employer. (2) The Corporation may include other information in the employers register the Corporation considers necessary for the administration of this Act. 12 Certificate of registration for employers (1) The Corporation must give each registered employer a certificate of registration that includes the information about the employer included in the employers register under section 11. (2) If the details shown on an employer's certificate of registration change, the employer must, within 7 days after the change, give the Corporation written notice of the change. Maximum penalty—5 penalty units. (3) An employer's certificate of registration is evidence of the matters stated in the certificate. Division 2 Registration of workers 13 Corporation must keep register of workers The Corporation must keep a register of persons who are registered as workers under this Act. 14 Registration of workers (1) The Corporation may register a person as a worker— (a) on application by the person, or (b) on application by the person's employer under subsection (2), or (c) on the Corporation's own initiative under subsection (4). (2) If a person does not apply for registration as a worker within 3 months after starting to do community service work for an employer, the employer must apply to the Corporation for registration of the person as a worker within 14 days after the end of the 3-month period. Maximum penalty—20 penalty units. (3) The Corporation must determine an application for registration of a worker by— (a) registering the person as a worker, or (b) refusing to register the person as a worker. (4) The Corporation may also register a person as a worker if the Corporation— (a) becomes aware of information, other than because of an application under this part, indicating the person is, or was, a worker, and (b) is satisfied the person should be registered as a worker. 15 Registration of foundation workers (1) A person who is registered as a worker within 6 months after the commencement of this Act must be registered as a foundation worker. (2) The Corporation may, on application or the Corporation's own initiative, also register a person as a foundation worker more than 6 months after the commencement of this Act if the Corporation is satisfied there are exceptional circumstances. 16 Worker's registration day (1) In this Act, worker's registration day means— (a) for a worker registered under section 14(1)(a) or (b)—the day on which the Corporation receives the application, or (b) for a worker registered under section 14(4)—the day the Corporation receives the information referred to in section 14(4)(a). (2) Despite subsection (1), if the Corporation is satisfied the person was a worker for a period before the worker's registration day, the Corporation may nominate an earlier day as the worker's registration day. (3) The Corporation must not nominate a day that is— (a) more than 2 financial years before the worker's registration day under subsection (1), unless the Corporation is satisfied there are special circumstances, or (b) before the commencement of this Act. 17 Information in workers register (1) The workers register must include the following information for each registered worker, or as much of the following information as the Corporation is reasonably able to obtain— (a) the worker's name, (b) if the worker is an employee—each employer for whom the employee works, (c) if the worker is a contractor—the worker's ABN, if any, (d) the number of days of service credited to the worker, (e) the total ordinary remuneration paid to the worker for community service work, (f) the worker's entitlement to long service leave, (g) details of the long service leave granted to, or taken by, the worker, or payment instead of long service leave made to the worker, under this Act or the Long Service Leave Act 1955, (h) the worker's registration day, (i) if the worker no longer does community service work—the day on which the worker ceased doing community service work. (2) The Corporation may include in the workers register other information the Corporation considers necessary for the administration of this Act. (3) The Corporation may, in relation to the information required under subsection (1)(e), rely on any information the Corporation thinks fit, including information in a return submitted under Part 4. (4) The Corporation must, on request by a registered worker, give the worker information about the worker included in the register. 18 Annual information for workers (1) The Corporation must, as soon as practicable after 31 July each year, give each registered worker the following information about the financial year ending on 30 June in that year— (a) the number of days of service credited to the worker in the workers register for the financial year, (b) the number of days of service, from the worker's registration day to the end of the financial year, credited to the worker in the workers register, (c) the total ordinary remuneration paid to the worker during the financial year by a registered employer, (d) if the worker is a contractor—the total amount paid by the contractor under section 42 during the financial year. (2) A worker may, within 2 years after receiving the information, make an objection to the Corporation if the worker believes the worker should have been credited with more days of service in the workers register for the financial year. (3) The Corporation may determine an objection received more than 2 years after the worker receives the information if the Corporation is satisfied there are special circumstances. (4) The Corporation must determine the objection by— (a) dismissing the objection, or (b) allowing the objection and amending the number of days of service credited to the worker in the workers register for the financial year. Division 3 Cancellation and suspension of registration of workers 19 Cancellation of worker's registration (1) The Corporation may cancel a worker's registration if the Corporation is satisfied— (a) the person is not a worker, and (b) the person's application for registration as a worker should have been refused. (2) The Corporation must cancel a worker's registration if the person has not been credited under this Act or a corresponding law with at least 1 day's service for 4 consecutive years. (3) For subsection (2), a non-service day prescribed for section 20 must be treated as 1 day's service. (4) The Corporation must also cancel a worker's registration— (a) on the making of a pro rata payment under section 52 to the worker, or (b) at the worker's request. (5) The cancellation of a worker's registration under subsection (1) takes effect— (a) 42 days after the Corporation notifies the worker of the cancellation, or (b) if an appeal under section 68 is made against the cancellation within that period—on the date on which the appeal is withdrawn or the cancellation is confirmed. (6) If a worker's registration is cancelled under subsection (1) or (2)— (a) the person ceases being a registered worker on the day the registration is cancelled, and (b) the person is not entitled to apply for, or to be paid an amount for, long service leave for any days of service credited to the person in the workers register before the day the person ceased being a registered worker. (7) Subsection (6)(b) does not apply if the person would have been entitled to a pro rata payment under section 52, if the person's registration was not cancelled. (8) The regulations may provide for the refund of long service leave levies on cancellation of a worker's registration. 20 Suspension of worker's registration (1) The Corporation may suspend a worker's registration if— (a) the worker has been credited with at least 1,825 days of service in the workers register, and (b) 1,460 non-service days have elapsed since the last date for which the worker was credited with service under this Act or a corresponding law. (2) The Corporation may restore a suspended worker's registration at any time. (3) If the Corporation restores a suspended worker's registration under subsection (2), any days of service under this Act credited to the worker in the workers register at the date of suspension must be restored. (4) While a worker's registration is suspended— (a) the worker must not be credited with any service in the workers register during the period of suspension, and (b) the Corporation is not required to give information to the worker under section 18. (5) While a worker's registration is suspended, the worker is entitled to apply for and be paid a long service leave payment for any days of service credited to the worker in the workers register at the date of suspension. (6) If a worker has died, whether before or after the worker's registration was suspended, the deceased worker's personal representative may apply for and be paid any long service leave payment for any days of service credited to the worker in the workers register. (7) Subsections (5) and (6) are subject to section 52. (8) An application under subsection (6) may not be made more than 2 years, or a longer period prescribed by the regulations, after the later of— (a) the date of suspension, or (b) the date on which the worker died. (9) In this section— non-service day means a day prescribed by the regulations for subsection (1). 21 Reinstatement of cancelled worker's registration (1) The Corporation may, within 6 years after the cancellation of a worker's registration, reinstate the registration if the Corporation is satisfied there are special circumstances. (2) The Corporation may reinstate a worker's registration that was cancelled under section 19(2) if the Corporation is satisfied the worker has been credited with a period of service under a corresponding law within the period of 4 years before the registration was cancelled. (3) If a worker's registration is reinstated under this section, this Act applies in relation to the worker as if the registration had not been cancelled. (4) This section does not affect another right that a person whose registration has been cancelled may have to again become a registered worker. Division 4 Cancellation of registration of employers 22 Cancellation of employer's registration (1) The Corporation may cancel an employer's registration if the Corporation is satisfied— (a) the person is not an employer, and (b) the person's application for registration as an employer should have been refused. (2) If a registered employer ceases engaging any workers to do community service work, the registered employer may apply to the Corporation for cancellation of the employer's registration. (3) The Corporation must cancel the employer's registration if the Corporation is satisfied the person has ceased engaging any workers to do community service work. (4) The person ceases being a registered employer on the day the employer's registration is cancelled but must pay any long service leave levy that was due to the Corporation before that day. Division 5 General 23 Corporation may require further information about employers (1) The Corporation may, by written notice, require an applicant under section 10(2) to give the Corporation information or evidence the Corporation considers necessary to properly consider the application. (2) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (3) An applicant given a notice under subsection (1) must not, without reasonable excuse, fail to give the Corporation the information or evidence within the specified period. Maximum penalty for subsection (3)—40 penalty units. 24 Corporation may require further information about workers (1) The Corporation may, by written notice, require an applicant under section 14(1)(a) or (2) to give the Corporation information or evidence the Corporation considers necessary to properly consider the application. (2) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (3) The Corporation may refuse to grant an application under section 14 if the applicant fails, without reasonable excuse, to give the Corporation the information or evidence within the specified period. 25 Corporation may require further information about unregistered employers (1) This section applies if the Corporation believes a person is or was an employer, but is or was not a registered employer. (2) The Corporation may, by written notice, require the person to give the Corporation information or evidence the Corporation considers necessary to decide whether the person is or was an employer at the relevant time. (3) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (4) The person must not, without reasonable excuse, fail to give the Corporation the information or evidence within the specified period. Maximum penalty for subsection (4)—40 penalty units. 26 Notice of registration decisions (1) The Corporation must, within 14 days after making a decision under this part, give written notice of the decision to the person to whom the decision relates. (2) Notice of a decision to register a person as a worker must specify the worker's registration day. (3) Notice of a decision to refuse to register or to cancel the registration of a person must include— (a) an explanation of the decision, and (b) the person's rights to appeal under Part 7. 27 Inspection of registers (1) The Corporation must, on request, give a registered employer, or a person acting on behalf of a registered employer, access to, and a certified copy of, an entry in the employers register that relates to the employer. (2) The Corporation must, on request, give a registered worker, or a person acting on behalf of a registered worker, access to, and a certified copy of, an entry in the workers register that relates to the worker. Part 3 Service credits 28 Meaning of "engagement period" (1) In this Act, engagement period, for a worker who is an employee, means the period— (a) starting on the day the person is engaged by an employer as a worker, and (b) ending on the day the person ceases being engaged by an employer as a worker. (2) For subsection (1), it is not relevant whether the employer who engages the worker is the employer who ceases engaging the worker. (3) In this Act, engagement period, for a worker who is a contractor, means the period— (a) starting on the day the person starts doing community service work as a contractor, and (b) ending on the day the person ceases doing community service work as a contractor. (4) In this Act, engagement period, for a worker, includes any day on which the worker did not do community service work— (a) because of incapacity for work for which the worker is entitled to compensation under the Workers Compensation Act 1987, or (b) for a worker who is an employee—because the worker had been dismissed by the worker's employer to ensure the worker did not take long service leave during the worker's employment. (5) The Corporation may, on request of an employer or worker, determine the day on which an engagement period starts or ends. 29 Service credits (1) A registered worker must be credited in the workers register with 1 day's service for each day, including a day when the worker does not do community service work, in each engagement period. (2) A registered worker must not be credited in the workers register with a day's service that occurs before the worker's registration day. (3) A registered worker must not be credited in the workers register with more than 365 days of service in a financial year, even if a particular financial year has 366 days. 30 Service credits under corresponding laws (1) This section applies if a registered worker is entitled to be credited with both— (a) a number of days of service in the workers register, and (b) a further number of days of service in a similar register or record kept under a corresponding law. (2) The days of service that must be credited to the registered worker in the workers register for a financial year must be adjusted to ensure the total number is not more than 365 days. (3) The adjustment made under subsection (2) must be made— (a) when an application is made under this Act or a corresponding law for payment of long service leave for the service under this Act or a corresponding law, or (b) at another time determined by the Corporation. 31 Foundation worker service credits Despite section 29, a worker who is registered as a foundation worker must be credited, on the day the worker is registered, with 365 days of recognised service. 32 Service credits for breaks in engagement periods The Corporation may, on application by a registered worker, credit the registered worker with 1 day's service in the workers register for each day of any period not exceeding 3 months during which the Corporation is satisfied that, because of circumstances prescribed by the regulations, the registered worker was not eligible to be credited with service under section 29. 33 Service credits for insolvent employers The Corporation may, on application by the registered worker or the administrator, credit a registered worker who is an employee with 1 day's service in the workers register for each day during which the employer is insolvent under administration, or a Chapter 5 body corporate, within the meaning of the Corporations Act 2001 of the Commonwealth. Part 4 Returns and records Division 1 Returns to Corporation about workers 34 Returns by employers (1) Within 14 days after the end of a return period, a person who is or was an employer during the return period must give the Corporation a return for the period. Maximum penalty—40 penalty units. (2) The return must specify the following for each worker who was an employee during the return period— (a) the total amount of ordinary remuneration paid by the employer to the worker during the return period for community service work done by the worker, (b) if the worker's engagement with the person started during the return period—the day on which the engagement period for the worker started, (c) if the worker's engagement with the person ended during the return period—the day on which the engagement period for the worker ended, (d) other information prescribed by the regulations. Maximum penalty—40 penalty units. (3) The person must, on the request of the Corporation, verify the information specified in the return in the way requested by the Corporation. Maximum penalty—40 penalty units. (4) The person must give notice to the Corporation about a change to information referred to in subsection (2) within 1 month after the change. Maximum penalty—40 penalty units. (5) This section does not require a person to record information about a worker who is the person's employee if the worker— (a) is not a registered worker, and (b) was not recorded as a worker in the person's return for the previous return period, and (c) did community service work for the person for less than 5 days during the current return period. 35 Exemption from giving returns to Corporation (1) An employer may apply to the Corporation for an exemption from the requirement to give the Corporation a return under section 34 in relation to a person who is, or was, engaged by the employer as a worker. (2) The Corporation may grant the exemption if the Corporation is satisfied— (a) the employer no longer engages the person to do community service work, or (b) the employer complies with, or makes contributions to, a scheme in another State or Territory about long service leave payments for workers that is similar to the scheme established by this Act in relation to the person. (3) The Corporation may, by written notice to the employer, revoke an exemption granted under subsection (2) if the Corporation is satisfied the exemption should no longer be granted. (4) If the Corporation refuses to grant an application for, or revokes, an exemption, the Corporation must give the employer written notice of the decision. (5) The notice must include— (a) an explanation of the decision, and (b) the employer's rights to appeal under Part 7. 36 Returns by contractors A contractor who is, or was, a registered worker during a return period must, within 14 days after the end of the return period, give the Corporation a return specifying the following information— (a) the number of days, or part days, during the return period on which the contractor did community service work, (b) the contractor's total ordinary remuneration for the community service work during the return period, (c) other information prescribed by the regulations. Maximum penalty—20 penalty units. Division 2 Review of ordinary remuneration of workers 37 Corporation may review ordinary remuneration of workers (1) This section applies if the Corporation considers that the total ordinary remuneration for a worker specified in a return given to the Corporation under section 34 or 36 for a return period may be insufficient or excessive because of the nature of the community service work done by the worker in the return period. (2) The Corporation must, by written notice to the relevant parties, invite written submissions in relation to the ordinary remuneration for the worker. (3) After considering written submissions received within 1 month of giving the notice under subsection (2), the Corporation must— (a) decide that the total ordinary remuneration specified in the return for the return period is reasonable, or (b) fix another amount as the total ordinary remuneration of the worker for the return period. (4) The Corporation must, within 14 days after making a decision under subsection (3), give written notice of the decision to the relevant parties. (5) If the Corporation decides to fix another amount as the total ordinary remuneration under subsection (3)(b), the notice must specify the following— (a) the total ordinary remuneration fixed by the Corporation for the return period, (b) a statement of the effect of section 38. (6) In this section— relevant party means— (a) in relation to a return under section 34— (i) the person who gave the return, and (ii) the worker, and (b) in relation to a return under section 36—the contractor. 38 Variation of ordinary remuneration (1) This section applies if the Corporation fixes an amount under section 37(3)(b) as the total ordinary remuneration of a worker or contractor who is a registered worker for a return period (the varied amount). (2) If the varied amount is more than the amount stated in the return for the return period (the returned amount), the employer or contractor must pay the Corporation the additional amount payable as the long service leave levy for the worker or contractor for the return period. (3) If the varied amount is less than the returned amount, the Corporation must— (a) if asked by the employer or contractor to refund the overpayment of the long service leave levy—refund the overpayment, or (b) otherwise—credit the overpayment against future amounts payable as a long service leave levy by the employer or contractor. (4) An employer or contractor who is required under subsection (2) to pay an additional amount must pay the amount within— (a) 1 month after the day on which the employer or contractor receives notice under section 37 of the Corporation's decision, or (b) the additional period determined by the Corpora