Recent decisions of the Fair Work Commission – Portable long service leave

Read the full series:

Part 1: Recent decisions of the Fair Work Commission – Flexible working arrangements

Part 3: Recent decisions of the Fair Work Commission – Annualised salary arrangements

The EnergyAustralia decision – Overview

The Victorian Court of Appeal has delivered an important decision regarding PLSL in the case of EnergyAustralia Yallourn Pty Ltd v CoInvest Limited [2026] VSCA 80 (“EnergyAustralia decision”).

This decision highlights a growing trend that employers need to be aware of – PLSL is no longer limited to the construction industry and now applies across various sectors and industries in Victoria. The Court has confirmed that liability depends on the nature of the work performed, rather than how a business is classified.

The case examined the construction PLSL scheme managed by CoInvest (now LeavePlus), which imposes requirements on employers to make contributions for employees performing “construction work”.

The Court held that EnergyAustralia was required to contribute to the construction PLSL scheme because its employees were performing substantial maintenance and repair work on power station infrastructure, which qualified as “construction activity”, even though the business itself operates in the energy sector.

Expanding scope – “Construction activity”

Recent cases, including the Energy Australia decision, confirm that coverage under the scheme is not based on whether a business is considered “in construction.” Instead, it depends on whether employees are doing work that falls within the legal definition of “construction activity”. This means tasks like maintenance, installation and repair may be covered, even for businesses in the energy sector or those providing facilities or property-related services. The EnergyAustralia decision shows these issues are now key to how contribution obligations are applied.

Understanding PLSL

A common mistake among businesses is treating PLSL as a single scheme. In Victoria, this is not the case. Alongside the construction regime, the Portable Long Service Benefits Scheme covers three industries:

• community services
• contract cleaning, and
• the security industry.

This scheme is administered by the Portable Long Service Authority and operates independently of the construction scheme. The rationale for the Portable Long Service Benefits Scheme is similar to the construction scheme in that the above named industries experience high workforce mobility and short-term engagements, so workers would not typically qualify for long service leave with a single employer.

Employers in these sectors must register with the Portable Long Service Authority, submit quarterly returns recording employee hours and pay, and pay a levy based on ordinary wages. Current levy rates of approximately 1.65% for community services and 1.80% for cleaning and security.

Workers accrue portable long service leave based on their total service within the industry, rather than with a single employer, and may access entitlements after sufficient qualifying service.

Coverage is broader than many employers realise. In the community services sector, administrative and corporate staff may also be covered where their roles fall within the defined industry coverage and relevant awards, such as the Social, Community, Home Care and Disability Services Industry Award 2010. Likewise, in security and cleaning, engagement structures (including subcontracting) do not, by themselves, determine coverage. The focus remains on the nature of the work performed, not the engagement model. This reflects a similar focus to the construction scheme on the nature of the work performed.

Key risk: Exposure to historical liability

From a risk perspective, the primary concern is not future compliance but historical liability. Where businesses have wrongly assumed they are not covered, contributions may have been missed for extensive periods, and schemes can seek recovery of unpaid levies as well as interest and penalties.

What employers should do now

The combined effect of regulator guidance and recent case law in the construction context is that passive compliance is no longer sufficient. At a minimum, businesses should identify where construction work (as defined under the scheme) occurs within their operations, assess how workers are engaged and how payments are characterised, and determine whether obligations may arise under more than one portable long service leave framework. This includes separately considering whether they engage workers in community services, contract cleaning or the security industry. Critically, this analysis must focus on the actual work performed.

In summary, the EnergyAustralia decision underscores a broader shift in how PLSL is applied in Victoria. The PLSL framework now spans construction, community services, security and cleaning, with increasingly broad interpretations of coverage. For businesses, the key takeaway is clear – if your workforce performs work that may fall within these definitions, there is a real risk that obligations already exist.

How the Victorian Chamber can assist

If you would like assistance in determining whether your business falls within the scope of any portable long service leave scheme, our Workplace Relations team is here to help. While the Victorian Chamber can provide initial guidance, matters may ultimately require engagement with the relevant regulator. Please contact the Workplace Relations Advice Line on 03 8662 5222.