Employer Guide: What an employer needs to know about the Building and Construction Industry Long Service Payments Act

Transcription

1 Employer Guide: What an employer needs to know about the Building and Construction Industry Long Service Payments Act

2 Contents 1. Overview 3 2. Who is covered by the Act? 4 3. Who is not covered by the Act? 5 4. Are you registered as an employer? 5 5. What you need to do if your company or business ceases trading 6 6. Changed your address or contact details? 6 7. How to notify the Corporation you are starting a worker 7 8. How to notify the Corporation you are ending a worker s employment 8 9. How do you let the Corporation know about a worker s service? ing an Excel spreadsheet template Sole contractors in the building and construction industry What if you have your own company? Workers who do not perform full time building and construction work Interstate work Paying long service under the Long Service Leave Act What if your employee chooses a long service payment from the Corporation? Auditing of your records Powers of inspectors from the Corporation Penalties under the Act Levy payments Appeals to the Independent Industry Committee A brief history of the Act Organisational structure of the Long Service Payments Corporation 16 What an employer needs to know 1

3 2 This guide is current at December It is not a substitute for the Act and regulations. For more information on any of the topics covered in the guide or to check on any changes that may have been made after December 2006, contact the Corporation.

4 1. Overview The Building and Construction Industry Long Service Payments Act provides for long service payments for workers in the NSW building and construction industry. The Long Service Payments Corporation is responsible for administering the Act. Payments are for service to the industry instead of to an individual employer. Individual workers have periods of employment in the building and construction industry recorded by the Corporation from information provided by their employers. Employers are required to register with the Corporation and then advise the Corporation any time they start and end workers employment. At the end of each financial year the Corporation will send employers a list of all workers that are registered as working for them. The employer must check the list, confirm the details and return it to the Corporation. Once this is done, all workers are sent an annual statement of service listing the periods of employment that have been added to their record. Workers are asked to check their statements carefully and notify the Corporation of any omissions or mistakes. There is no cost for employers or workers to belong to the scheme. The scheme is funded by a levy on all building projects in NSW that cost more than $25,000. What an employer needs to know 3

5 2. Who is covered by the Act? Employers Employers covered by the Act are those who carry out construction, reconstruction, renovation, alteration, demolition, maintenance or repairs of or to any of the following: Airfields, aqueducts, breakwaters, bridges, buildings, chimney stacks, cooling towers, docks, drilling rigs, fences, gas holders, works for water supply or storage, harbour/river or water course improvements for the purpose of navigation, jetties, irrigation works, navigational lights/beacons or markers, piers, pile driving, pipelines, railways, roads, sewerage works, silos, swimming pools, transmission of electric power, transmission of wireless or telegraphic communications, tunnels, viaducts and wharves. It includes structures, fixtures or works for use in or in conjunction with any of the above and site preparation. Work is not restricted to onsite work, it also includes offsite work, eg joinery workshop making custom kitchen cabinets. Workers Workers covered by the Act are those engaged under a contract of employment (employees) who perform building and construction work. The following list is indicative of the type of work classification covered by the scheme: Bricklayer, bridge and wharf carpenter, builder s labourer, carpenter, construction labourer, drainer, electrician, gas fitter, glazier, joiner, lofty crane driver, painter, plant operator, plasterer, plumber, roof tiler, signwriter, slater, stone mason, tile layer. Foremen, sub foremen, leading hands, apprentices and assistants can also be covered. 4

6 3. Who is not covered by the Act? State, local and commonwealth government employees are not covered by the Act. Also some workers employed by employers in the building and construction industry are not eligible to join the scheme. Examples of these workers are: Clerical or administration staff, surveyors, estimators, project managers, architects, and any other workers who do not physically perform building and construction work. Metal workers are only eligible to record service with the scheme for periods when they work on major construction sites. Metal trades work performed in a factory or on a domestic site is not covered by the scheme. Any employer who employs workers where long service entitlements are provided for by a federal award is not eligible. Examples of this are workers covered by the Metal Engineering & Associated Industries Award 1998 or who are employed by employers who are members of the Timber Trades Industrial Association. 4. Are you registered as an employer? If you employ workers on wages who are covered by the Act you must register with the Corporation as an employer. If you are a sole trader or member of a partnership, and you employ workers on wages to do building and construction work for you, you must register as an employer. If you are not currently registered as an employer with the Corporation you can do this by: A. The Internet Go to our website at and click on the log-in link. or B. Phone our Helpline on and ask for an Application for Employer Registration to be mailed to you. What an employer needs to know 5

7 5. What you need to do if your company or business ceases trading Make sure you have lodged all required notices with the Corporation. Advise the Corporation so we can update our records to ensure that you do not continue receiving mail from us. 6. Changed your address or contact details? Make sure you notify the Corporation if you change your address or contact details. 6

8 7. How to notify the Corporation you are starting a worker Employers are required to complete a START NOTICE for all workers covered by the Act when they are first employed. A notice must be completed for each worker and lodged with the Corporation within 7 days of the worker commencing employment. Before completing a START NOTICE you should check if the worker has a Long Service Payments Corporation registration number and if so include their registration number on the Notice. Workers who are registered with the Corporation should have a card showing their registration number. You can also call the Corporation s Helpline to check whether the worker is registered. You will need their correct name and date of birth. You should note that a START NOTICE is required for all newly-employed workers, even if they only work for one day. There are 2 ways to complete a START NOTICE. A. The Internet or Go to the following address and follow the instructions: (The Corporation will advise you of your online access password by post.) B. Complete and mail a START NOTICE to the Corporation What an employer needs to know 7

9 8. How to notify the Corporation you are ending a worker s employment Employers are required to complete an END NOTICE for all workers covered by the Act whose employment is terminated. A notice must be completed for each worker you terminate and lodged with the Corporation within 7 days of employment termination. You should note that an END NOTICE is required for all workers, even if they only work for one day. There are 2 ways to complete an END NOTICE. A. The Internet Go to the following address and follow the instructions: (The Corporation will advise you of your online access password by post.) or B. Complete and mail an END NOTICE to the Corporation 8

10 9. How do you let the Corporation know about a worker s service? The lodgement of START and END NOTICES is essential for the recording of accurate worker long service records. Up to December 2006 employers were required to complete and lodge individual Employee Certificates of Service at the end of each financial year for each worker they employed. These are no longer required. You now have 2 ways in which end of year confirmation of worker employment can be done. A. Completing an EMPLOYER RETURN or B. an Excel spreadsheet template Employer Returns In the first week of July, employers will be sent an EMPLOYER RETURN that must be completed and returned to the Corporation by 31 July. The return is a list of all workers that the Corporation has recorded as being employed by you or your company. This list is compiled from the START and END NOTICES lodged (and Employee Certificates of Service received by the Corporation under the former reporting method). If a worker you employ is not on the return, you must complete and send a START NOTICE to the Corporation immediately. If you have employed a worker who has worked occasional days during the whole year, the return can show the whole financial year as the period of employment but the part-time box must be crossed. You must then provide the actual number of days worked during the year. There are 2 ways to complete an EMPLOYER RETURN. A. The Internet you can access your return on our Website and complete it online (The Corporation will advise you of your online access password by post.) or B. You can complete and return the paper copy of the return that the Corporation will mail to you. What an employer needs to know 9

11 10. ing an Excel spreadsheet template This option is already being used by many employers and those using this reporting method can continue to use it or change to EMPLOYER RETURNS. If you are interested in ing a spreadsheet template, more information can be downloaded from our website at click on Employer Information, then select Excel spreadsheet template from the dropdown menu or you can contact our Helpline on If you choose this option then you must download the current template for each financial year. The Corporation will not accept ed templates unless they are completed in full and with accurate information. Please remember, if you wish to use the spreadsheet, you must have registration numbers for all your workers before you can complete it. 11. Sole contractors in the building and construction industry If you are a sole trader or member of a partnership and you employ workers on wages to do building and construction work for you, you must be registered as an employer and submit START NOTICES and END NOTICES and complete an EMPLOYER RETURN. If you perform building and construction work yourself you can also join the scheme as a worker and record service. When registering as a worker you should ensure that you include your ABN on your registration form. At the end of the financial year the Corporation will send you a Self Employed Worker Certificate of Service. You must get your tax agent to complete and return it to the Corporation. If you don t receive a certificate you should contact our Helpline. 10

12 12. What if you have your own company? If you are a director of your own company AND perform building and construction work, you are entitled to record service with the Corporation. The company should lodge all documents for you, the same as any other workers on wages. In this case you would have 2 registration numbers: 1 for the company; and 1 as an individual worker. 13. Workers who do not perform full-time building and construction work If you employ workers who do some eligible work and some work that is not eligible, those workers can only record service for the days on which they perform eligible work for more than half the day. You must keep a record of the hours they spend doing eligible and ineligible work. These workers should be shown as part-time on your EMPLOYER RETURN. You should only provide the actual number of days on which they performed eligible work for more than half the day on the return. If you employ a part-time worker for a specified number of days per week/month, the worker should be shown as part-time on the EMPLOYER RETURN with the total number of days worked during the period of employment. In the case of a casual worker who works full-time for a limited period, they should be shown as full-time with the actual period of employment shown. What an employer needs to know 11

13 14. Interstate work If you employ workers who perform building and construction work in another state or territory, you will need to comply with the relevant long service requirements in each of those other states or territories. You will need to register with each different scheme and the workers will also need numbers in each state where work is performed. Although service cannot be transferred between the different state schemes, service accrued in all schemes can be combined to qualify a worker for a benefit. 15. Paying long service under the Long Service Leave Act 1955 If you are required to pay long service leave to a worker you must notify the Corporation before doing so. You may be able to claim a part or full payment from the Corporation. Payments can only be paid in relation to registered workers and only include service credited to their record after their registration date. Workers must be registered with the Corporation before the employer pays the long service and service documents must also have been lodged. If the worker is not registered or service documents have not been lodged at the time the worker takes long service leave, a payment cannot be paid. The Corporation calculates payments at the appropriate award or agreement rate for the worker s classification. To notify the Corporation of the intention to pay a worker for long service leave or to apply for a reimbursement payment, simply call our Helpline on Employers who pay long service leave to their employees and wish to claim from the Corporation must lodge their claim within 12 months of the date they paid long service to their employee. In some circumstances the Corporation can accept an application up to a limit of 2 years from the payment date. 12

14 16. What if your employee chooses a long service payment from the Corporation? If your employee has sufficient service recorded with the Corporation, they may elect to take a payment from the Corporation. When a worker lodges a payment application with the Corporation a letter will be sent to the last recorded employer for that worker, so the employer can advise whether they have already paid long service leave to the worker. We also notify the same employer after we make the payment to prevent them from making a further payment to the worker for the same period. If the employee has been employed by you or an associated company and is entitled to long service as a result, you must contact the Corporation before making any payments. If an employee elects to take their payment from the Corporation, the employer may agree to grant them unpaid leave for an equivalent period of time. There is no obligation to grant leave to employees taking their payment from the Corporation if it is not convenient to the employer. 17. Auditing of your records Authorised officers of the Corporation have the authority to audit employers records to check compliance with their obligations. Employers are required to keep various books and records for six years. The requirements for workers under a contract of employment (wages) are: (a) time sheets or attendance records showing the attendance at work of the worker (b) books and records containing the following particulars: - name and address of the worker; - registration number of the worker; - kind of work performed by the worker; - name of the award if the worker is paid under an award; - for the years prior to 1 January 2007, the serial numbers of the certificates of service lodged for workers; - total number of days of building and construction work performed by the worker each week. If you are asked to produce your books and records for an audit, you will need to show the above records for the periods requested. What an employer needs to know 13

15 18. Powers of inspectors from the Corporation Inspectors from the Corporation are authorised under the Act to: 1. Enter any premises to determine whether any workers are engaged there and make such examination and enquiry as may be expedient for the purpose of determining whether the provisions of the Act are being complied with. 2. Require an employer to produce, at such time and place as the Inspector may specify, any books, records or documents that are required to be kept by the employer. 3. Request that an employer who does not retain his books and records in the English language provide at such time and place as the Inspector may specify, a copy of those books and records or any part of them translated into English. 4. Require an employer to produce, in hard copy, graphic form, any document that is stored electronically. Every Corporation Inspector is provided with a photo ID and on seeking admission to any premises, or requiring production of records, shall produce that authority if requested to do so. 19. Penalties under the Act 1. Failing to register the commencement of employment of a worker within 7 days of employment commencing. Maximum penalty $2, Failing to notify the employment termination of a worker within 7 days of termination. Maximum penalty $2, Failure to confirm by 31 July each year workers employed as at 30 June preceding. Maximum penalty $2, Failing to notify the Corporation before making a long service benefit available to an employee under the Long Service Leave Act Maximum penalty $2, Failing to keep required books and records. Maximum penalty $2, A person shall not wilfully delay or obstruct an authorised officer from the Corporation in the performance of their duties. Maximum penalty $5, A person shall not neglect or fail to produce books and records at such time and place as may be directed by the Corporation. Maximum penalty $5, Making a false or misleading statement in any application, certificate, claim, objection, appeal, book or record made, furnished or maintained under this Act. Maximum penalty $5, Making a false or misleading statement in any information furnished in purported compliance with a requirement made under the Act or for the purpose of obtaining any exemption, concession, benefit or advantage under the Act. Maximum penalty $5,

16 20. Levy payments The Levy is payable for building and construction projects costing $25,000 or more and is payable at local councils or the Corporation s Gosford office. For work requiring approval by a consenting or certifying authority, the consenting or certifying authority may determine the cost of the work for the purpose of calculating the levy payable or else the cost of the work is the contract price. The Corporation can also determine the cost of the building work where there is no contract price or the building work does not require approval by a consenting or certifying authority. The current rate is 0.35% of the value of building work or in round terms, $3.50 for each $1,000 of the cost of building work costing $25,000 or more. The levy can be paid at offices of those local councils that act as an agent for the Corporation. When a council is not an agent for collecting the long service levy, payments must be made either direct to the Corporation or the council acting as an agent for that non-agent council. Persons may appeal to the independent Building and Construction Industry Long Service Payments Committee if they disagree with a decision of the Corporation in relation to a levy payment. 21. Appeals to the Independent Industry Committee Workers can appeal against certain decisions made by the Corporation that affect their registration and the crediting of service. An employer can only appeal against refusal to register a worker. If you lodge an application to register a worker and the Corporation refuses it you will be advised of the refusal and the reason. If you disagree with the Corporation s decision you can discuss it with Corporation staff who will ask whether you have additional information that might enable them to reconsider the decision. If that is also unsuccessful, you have the right to appeal to the independent Building and Construction Industry Long Service Payments Committee. You need to contact the Committee Clerk and request an appeal form, which must be completed and returned to the Corporation within 42 days of the date you were advised of the Corporation s original decision. Appeals lodged outside the 42 day period cannot be accepted. What an employer needs to know 15

17 22. A brief history of the Act In 1974 the Building Group of Unions and Employer Representatives agreed to the implementation of a portable Long Service Scheme. The Act was introduced because the nature of the industry meant workers rarely remained with the one employer long enough to become eligible for long service leave under the Long Service Leave Act (1955). A joint approach was made to the then Government and the Building and Construction Industry Long Service Payments Act 1974 came into effect from 1 February The Act is the responsibility of the New South Wales State Government. When it was first established, the Builders Licensing Board administered it. In 1982 it was changed to the Department of Industrial Relations and in 2004 to the WorkCover Authority of NSW. The responsible Minister is the Minister for Industrial Relations. Between 1975 and 30 June 1986 funding was provided by contributions paid in by employers. Building industry employers were required to lodge monthly returns showing details of their employees, how many days they worked and their ordinary pay for the month. The contributions were based on a percentage of worker s ordinary pay. At the time this method of funding ceased, the contribution rate was 2.25%. Since I July 1986 funding has been provided by a levy, which is payable on all building and construction projects in NSW costing $25,000 or more. The levy rate is currently 0.35% and is payable by the person/s for whom the work is being done. Employers are no longer required to lodge monthly returns or pay contributions to the Corporation. 23. Organisational structure of the Long Service Payments Corporation The Minister for Industrial Relations is responsible for the administration of the Act. The Chief Executive Officer of WorkCover is the head of the Corporation and the Director of the Corporation is responsible for its operations. The Corporation is made up of 2 Groups Operations and Support. The Operations Group maintains the member register, pays benefits to registered members and ensures employers are complying with their legislative obligations. The Support Group provides computer services, account payments, levy collection and administrative support to the Corporation. 16

18 Building and Construction Industry Long Service Payments Corporation Tel: Fax: (02) Locked Bag 3000 Central Coast Mail Centre NSW 2252