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There are two long service schemes that may apply to the NSW building industry:
Under the State Scheme, an employee would receive long service leave after working for the same employer for 10 years).
Due to the project-based nature of the building and construction industry, it is unusual for someone to work with the same employer for 10 years. The Portable Scheme was established by the Long Service Corporation to ensure building and construction workers have the opportunity to access similar entitlements.
The scheme covers both employed and self-employed workers who perform building and construction work in NSW. The scheme rewards long service to the industry rather than long service to a particular employer.
It is important to note that an employee is only entitled to a benefit (payment or paid leave) under one of the schemes (for example, an employee may be employed by same employer for 10 years, they cannot get a payment from the Portable Scheme and take long service leave from their employer).
The Portable Scheme only covers workers that perform building and construction work on or offsite. This includes workers who directly supervise building and construction work, providing they physically perform work. The scheme does not cover workers who perform office/ administrative tasks such as estimators, architects, designers and engineers. These workers are covered by the State Scheme.
It is a requirement for all employers of workers who perform building and construction work within NSW to register with the Corporation as an employer and to notify the Corporation of a worker’s commencement, service, and cessation of employment.
Within 7 days of a worker starting, employers need to complete and lodge a Start Notice for all workers covered by the scheme (whether they are already registered or not – if not already registered, the Corporation will register the worker).
Unlike other schemes, employers do not pay direct contributions for their employees and there is no cost to workers or employers to join the scheme. The scheme is funded by a 0.25% levy as of 1 January 2023 (previously 0.35%) payable on building and construction works in NSW valued over $250,000 ($25,000 prior to 1 January 2023), usually when plans are approved by local councils and before the commencement of construction work (prior to building approval). Generally, the building applicant, or the person for whom the work is being done is responsible for paying the levy.
After 10 years of service employees may be entitled to long service leave payments under the Portable Scheme or the State Scheme.
Portable Scheme | State Scheme |
10 years’ service must be in the building and construction industry and must be recorded with the Corporation. |
10 years of service must be accrued with the same employer. |
An employee is entitled to a payment equivalent to 8.66 weeks pay at the applicable award rate of pay or, where a certified enterprise agreement is in force, at the worker’s rate of pay under that agreement. |
An employee is entitled to 2 months leave on ordinary pay. |
If the employment relationship ends: | Portable Scheme | State Scheme |
After 55 days of service |
The employee may be entitled to a payment if the employee:
|
N/A |
After 5 years of service | An employee may be entitled to a payment if the employee stopped during building and construction work |
An employee may be entitled to a payment equal to the proportionate amount of 2 months for 10 years service if the employment relationship was terminated:
|
After 10 years of service but less than 15 | N/A | The employee will be entitled to a proportionate amount on the basis of 3 months for 15 years service |
To register as an employer under the Portable Scheme you must complete a registration form, which can be obtained by calling 13 14 41 or by completing the form online.
Each July employers are required to complete an Employer Return, either online or paper form. The return provides details of all workers recorded as being employed. Employers need to check details and provide details of each employee’s service (and indicate whether any of those workers have since ended employment, and identify any employees not on the return).
There is an obligation to notify the Corporation via an End Notice of an employee’s termination, within 7 days of the employee’s termination.
The Portable Scheme is compulsory for employers.
The Corporation aims to educate and assist employers meet their obligations however does have the power to issue of on-the-spot penalty notices (fines), and substantial penalties for each non-compliance on the scheme’s requirements, for example, a maximum penalty of $2200 may apply for failing to register a worker within 7 days of employment starting.
For an employee to fall within the Portable Scheme they need to be either doing work or directly supervising work that has its minimum rate of pay fixed under one of the following modern awards:
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