Co-Invest Scheme: The Construction Industry's Portable Long Service Leave

The Co-Invest Scheme is a scheme that provides employees and contractors in the construction industry in Victoria with portable long service leave. If you are an employer with employees carrying out:

construction
electrical trades
metal trades
landscape gardening
shop fitting or
floor covering work,

there is a reasonable chance that you need to be making Co-Invest contributions on behalf of your employees.

How the Co-Invest scheme works

Ordinarily, an employee is entitled to receive long service leave after seven years continuous service with one employer. It is different for employees who work in the construction industry, for whom the special Co-Invest Portable Long Service Leave Scheme applies.

Under this scheme, employers employing people to carry out construction work in the construction industry must make contributions to the Co-Invest scheme on behalf of their employees. These employees accrue a right to long service leave after seven years working in the construction industry, even if they work for different employers. After completing seven years of continuous service, it is Co-Invest, not the employee's current employer, who will pay the employee when they take long service leave.

The rationale behind the Co-Invest scheme is that employees in the construction industry frequently change employers due to the nature of the industry. Accordingly, these employees would be disadvantaged compared to employees in other industries if they had to work seven continuous years with one employer to obtain long service leave.

What is the Construction Industry?

Confusingly, the 'construction industry', for the purpose of the Co-Invest scheme, is defined much more broadly than the common usage of the phrase would suggest. Under the Co-Invest scheme, the construction industry comprises the following sectors:

Building and Construction;
Electrical Services;
Floor Covering Services;
Industrial Machinery or Equipment Services;
Landscape Gardening;
Metal Trades;
Non-Destructive Testing Services;
Parquetry Floor Laying;
Shopfitting; and
Watering System Services.

To whom the Co-Invest scheme applies

For an employee to be covered by the Co-Invest scheme, they must be carrying out Construction Work. Construction Work is defined in the Co-Invest Rules to include work that is:

Performed in the Construction Industry (see above); and
Which is Building Trades Work, Electrical Trades Work, Metal Trades Work or Other Trades Work.

The Co-Invest Rules provide detailed definitions of what constitutes trades work. If you think your employees may be carrying out trades work within the construction industry, then you should review the Co-Invest Rules to determine whether your employees must be covered by the Co-Invest scheme.

What you are required to do

Employers who have employees in the construction industry are required to make contributions to the Co-Invest Scheme.

The current contribution rate for each employer is 2.7% of the total gross wages that you pay to all of your employees covered by the Scheme for each quarter.

How can Sharrock Pitman Legal assist me?

For employees

If you are an employee and have any queries regarding your Co-Invest leave entitlements, please visit Co-Invest, where they detail how to lodge your claim. If you have any issues with Co-Invest, or you would like legal advice on your claim, please do not hesitate to contact us.

For employers

The Co-Invest Scheme is complex and we find that employers are often unsure whether their employees are covered by the Scheme. If you are unsure whether you are required to make Co-Invest contributions on behalf of your employees, then please do not hesitate to call our Managing Principal, Mitchell Zadow, on (03) 8561 3318 or, alternatively, fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Land Development and Joint Ventures

What is the Co-Invest Scheme?

Co-Invest Scheme: The Construction Industry's Portable Long Service Leave

How the Co-Invest scheme works

What is the Construction Industry?

To whom the Co-Invest scheme applies

What you are required to do