Are you an employer in the building and construction industry?
If yes, then you may need to consider your obligations under the legislative scheme regarding “QLeave”.
What is QLeave?
QLeave is a long service leave scheme for workers in different industries that may not be covered by traditional long service leave entitlements. This article focuses on the scheme for the building and construction industry, although similar provisions are available for those in the cleaning and community services sector.
There are essentially two issues raised when considering obligations under the QLeave legislative scheme for employers, namely:
- The obligations as an employer of workers in the building and construction industry; and
- The obligation to pay the building and construction work levy on works undertaken.
These are two separate issues which we address in this article. The relevant legislative scheme for the administration and regulation of the QLeave system is found in the Building and Construction (Portable Long Service Leave) Act 1991 (the “Act”) and the Building and Construction Industry (Portable Long Service Leave) Regulation 2013 (the “Regulation”).
Obligation as an Employer
Under the Act an employer in the building and construction industry is required to register with the QLeave Authority if they employ ‘eligible workers’.
Eligible workers are defined as:
(1) An eligible worker is an individual who—
(a) under a contract of service is engaged to perform work in the building and construction industry for the majority of the person’s ordinary hours of work; or
(b) under a contract, whether or not the contract is a contract of service, or at piecework rates, is engaged to perform work in the building and construction industry, for labour only or substantially for labour only, for the majority of the person’s ordinary hours of work; or
(c) under a contract, whether or not the contract is a contract of service, performs work in the building and construction industry for the majority of the person’s ordinary hours of work, unless—
(i) the individual—
(A) is paid to achieve a stated result or outcome; and
(B) has to supply all, or substantially all, of the plant and equipment or tools of trade needed to perform the work; and
(C) is, or would be, liable for the cost of fixing a fault with the work performed; or
(ii) a personal services business determination is in effect for the individual performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.
(2) Also, eligible worker includes—
(a) an individual who is engaged to perform both work and supervision of other workers in the building and construction industry, whether or not the individual is known as a supervisor, leading hand or another title; and
…
In effect, if an employer is either employing or contracting workers then they should register with the QLeave Authority and provide the required details to the QLeave Authority. Contractors are not included in this should they be getting paid on the basis of completing defined work, are using their own equipment and tools, and are required to remedy any faults.
There are penalties for failing to comply to register as an employer.
There are other exceptions as to who is an eligible worker including those that are in a managerial, clerical or professional capacity, in a partnership or in a contract with a Government entity or local government.
The employer is not actually required to pay workers QLeave, workers can apply to the Authority for long service leave once they have worked for the required time period. The worker themselves are responsible for applying and the QLeave Authority makes the long service leave payments to the worker (if they are eligible).
Employers may however still have an obligation to pay long service leave to employee’s under either the Industrial Relations Act 2016 (QLD) or the Fair Work Act 2009 (Cth), depending on when the employee started and the terms of their employment. Generally speaking, employee’s that have more than 10 years of continued service are entitled to long service leave.
A worker cannot claim both long service leave from an employer and the QLeave Authority (should an employer pay a building and construction worker long service, they may then be able to apply to the QLeave Authority for reimbursement of that long service leave).
Obligation to Pay Levy
There is a levy on building and construction work that funds the QLeave scheme, and this levy also comprises the building and construction training levy, and the work health and safety levy. This levy is applicable to building and constructions works that cost $150,000.00 or more.
In determining who is liable to pay the levy, regard is to be had to section 74 of the Act. We note that in 2020 the Act was amended, previously it was ‘Principal Contractors’ that were required to pay the levy however this has now changed.
74 Liability for levy
Levy for building and construction work must be paid by—
- if the work is being done for the Commonwealth—the contractor engaged by the Commonwealth to carry out the work; or
- if the work is being done for a local government, government entity or non-Queensland government entity—the local government or entity; or
- if neither paragraph (a) nor (b) applies and under the Planning Act an application is made to the assessment manager in relation to the work for a development permit for building work, plumbing or drainage work or operational work as defined under that Act—the applicant under that Act; or
- if none of paragraphs (a), (b) and (c) apply and under the Plumbing and Drainage Act 2018 an application is made to the local government for a permit that authorises plumbing or drainage work—the applicant under that Act; or
- otherwise—the person for whom the work is to be done.
Essentially this means that generally speaking if approval is required for the works (a development application) than whoever applies for the approval is liable to pay the levy. If approval is not required (and it is not a contractor engaged by the Commonwealth or a government entity), then payment of the levy is to be made by ‘the person for whom the work is to be done’.
This means in situations apart from the above, the customer who has engaged the business to complete the work is liable to pay the levy. This provision is however only relatively new and there has been limited Court consideration of the term, but on a reading of the Act and the QLeave Authority publications this appears to be the correct interpretation.
Therefore, should a business be completing a commercial project that costs over $150,000 for the Commonwealth (federal government) or if the business was required to apply for approval of the works, then they are liable to pay the levy. If not, then the client (i.e., whoever engaged the business to complete the works) is liable to pay the levy.
Conclusion
It is important that you understand your obligations under the QLeave legislative scheme if you are an employer in the building and construction industry. There can be penalties for failing to comply with the legislation.
You can also find out more information on the QLeave website, register your business and workers, and pay the levy.
If you are unsure of your obligations or would like advice specific to your situation, please contact our friendly team at Miller Sockhill Lawyers today on 07 5444 4750.
Read our previous articles on Employment Law – Awards , Enterprise Agreements and Landmark Rulings on Casual Employees.