2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mr Wayne Berry)

Part 1.1 Governing board decisions 63

Part 1.2 Registrar decisions 64

Part 2.1 Financial Management Act 1996 65

Part 2.2 Long Service Leave Act 1976 65

Part 2.3 Long Service Leave (Building and Construction Industry) Act 1981 66

Part 2.4 Long Service Leave (Contract Cleaning Industry) Act 1999 68

2007

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mr Wayne Berry)

An Act to establish a long service leave scheme for the private sector, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Long Service Leave (Private Sector) Act 2007.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

The main objects of this Act are to ensure as far as practicable that—

(a) long service benefits are available to all workers in the private sector; and

(b) service by a worker in any segment of the private sector can be recognised for the purpose of accruing entitlements to long service benefits; and

(c) recognised service is portable between this Act and each of the following:

(i) the Long Service Leave Act 1976;

(ii) the Long Service Leave (Building and Construction Industry) Act 1981;

(iii) the Long Service Leave (Contract Cleaning Industry) Act 1999.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘building and construction industry—see the Long Service Leave (Building and Construction Industry) Act 1981, section 7 (1).’ means that the term ‘building and construction industry’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

(1) For this Act, a person is an employer if—

(a) the person—

(i) employs 1 or more people, whether in the ACT or elsewhere; or

(ii) is declared to be an employer under section 11 (Declarations by Minister about coverage of Act); or

(b) the person engages a contractor for fee or reward.

(2) However, the following are not employers for this Act:

(a) the Territory;

(b) a Territory instrumentality;

(c) the University of Canberra;

(d) a building and construction industry employer;

(e) a contract cleaning industry employer;

(f) an entity prescribed by regulation.

For this Act, an individual is a worker if the individual is—

(a) an employee; or

(b) a contractor; or

(c) declared to be an employee or contractor under section 11.

(1) For this Act, an individual is an employee if the individual is employed by an employer, whether in the ACT or elsewhere, and whether as—

(a) a full-time employee; or

(b) a part-time employee; or

(c) a casual employee; or

(d) a person remunerated at piecework rates; or

(e) an apprentice.

(2) Also, an individual is an employee if the individual is declared to be an employee under section 11.

For this Act, an individual (other than an employee) is a contractor if the individual—

(a) carries out work for another person for fee or reward on the individual’s own account; or

(b) is declared to be a contractor under section 11.

(1) The Minister may declare—

(a) a stated person to be an employer; or

(b) a stated individual to be a contractor; or

(c) a stated individual to be an employee, or an employee of a stated employer; or

(d) a kind of work or stated activity to be work for this Act.

(2) For this Act, an individual declared to be an employee of a stated employer is taken to be employed by the employer.

(3) A declaration is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) A service period of a person who is a registered worker is a period—

(a) starting on the day when the person becomes a worker for an employer (and is not already a worker for another employer); and

(b) stopping on the day when the person next stops being a worker for an employer (and is not a worker for another employer).

(2) For subsection (1), the continuity of the service period of a person who stops being a worker for an employer, but on the next day becomes a worker for another employer, is not interrupted by the change of employer.

(3) For subsection (1), a person stops being an employee for an employer (the former employer) if, for the employee’s next service period (the later period)—

(a) any return under section 54 (Quarterly returns by employers) by the former employer shows no ordinary remuneration for the employee in the later period; or

(b) if the employee had 2 or more employers for the later period—no return under section 54 by any former employer shows any ordinary remuneration for the employee in the later period.

(4) Despite subsection (1), a registered worker’s service period is taken to include any day when the worker does not carry out work because—

(a) of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1951 by an employer; or

(b) if the worker is an employee—the employee has been dismissed by an employer to ensure that the employee does not take long service leave while in the employer’s employment; or

(c) if the worker is a contractor—the contractor’s engagement by the employer is ended to ensure that the contractor does not take long service leave while engaged by the employer.

(5) For this section, a person is taken to become a worker on the person’s registration day as a worker.

Note Registration day—see s 15.

(1) For this Act, work carried out by an employee outside the ACT is taken to be work if the employer—

(a) gives the authority a quarterly return under section 54 (Quarterly returns by employers) in relation to the work; and

(b) pays the authority the levy payable by the employer under section 55 (Levy payments by employers) for the quarter.

(2) For this Act, work carried out by a contractor outside the ACT is taken to be work if the contractor—

(a) gives the authority a quarterly return under section 59 (Quarterly returns by contractors) in relation to the work; and

(b) pays the authority the levy payable by the contractor under section 60 (Levy payments by contractors) for the quarter.

(3) For this Act, work includes work or a stated activity declared to be work under section 11.

(1) In this Act:

day—

(a) in relation to a worker covered by an award or agreement—has the same meaning as in the award or agreement; or

(b) in relation to a worker to whom a declaration under subsection (2) applies—means the period stated in the declaration; or

(c) in any other case—means 24 hours.

(2) For this Act, the Minister may declare a stated period to be a day for a worker unless the worker is covered by an award.

(3) A declaration under this section is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

In this Act:

registration day—

(a) in relation to a worker who is registered—means the day the application for registration as a worker was received by the registrar; or

(b) in relation to an employer who is registered—means the day the application for registration as an employer was received by the registrar.

The governance of territory authorities, including the Private Sector Long Service Leave Authority, is regulated by the Financial Management Act 1996 (the FMA), pt 9 as well as the Act that establishes them.

The FMA, pt 9 deals, for example, with the corporate status of territory authorities and their powers, the make-up of governing boards, the responsibilities of the governing board and board members, how governing board positions can be ended, meetings of governing boards and conflicts of interest.

The Private Sector Long Service Leave Authority (the authority) is established.

The authority is not a territory instrumentality and does not represent the Territory.

(1) The authority has the following functions:

(a) administering the scheme of long service leave benefits established under this Act;

(b) making payments under this Act;

(c) keeping the employers register and workers register;

(d) any other function given to the authority under this Act or another territory law.

(2) To avoid any doubt, the authority may exercise its functions inside and outside the ACT, including in a foreign country.

The authority may delegate the authority’s functions to the registrar or any other public servant.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

The authority has a governing board.

Note An appointment of a governing board member is an appointment under this section (see Financial Management Act 1996, s 78 (5) (b)).

(1) The governing board has 6 members.

Note 1 The chair of the governing board must be appointed under the Financial Management Act 1996, s 79.

Note 2 The registrar is a member of the governing board (see dict, def registrar and Financial Management Act 1996, s 80 (4)).

(2) Two members of the governing board must be appointed to represent employer organisations.

(3) Two members of the governing board must be appointed to represent employee organisations.

(4) The chair of the governing board must not be a member mentioned in subsection (2) or (3).

(5) A member of the governing board must not be appointed for a term of longer than 5 years.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

(6) The Minister may, under the Legislation Act, section 209, appoint a person to act as a member.

(7) The registrar is a non-voting member of the governing board.

Note The Financial Management Act 1996, s 95 (2) and s 96 (1) deal with non-voting members of governing boards.

The Minister must not appoint a deputy chair for the governing board.

Note 1 This section ensures that a deputy chair cannot be appointed for the governing board under the Financial Management Act 1996, s 79 (1).

Note 2 The Minister may appoint an acting chair (see Legislation Act, s 209).

(1) The chief executive must appoint a public servant to be deputy registrar for the authority.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

(2) If the registrar is absent or cannot for any reason exercise the functions of the registrar, the deputy registrar must act as registrar.

Note The Legislation Act, div 19.3.2A deals with standing acting arrangements.

The governing board has the following functions:

(a) making recommendations to the Minister under section 56 (Determination of levy—employers) and section 61 (Determination of levy—contractors);

(b) recommending to the Minister laws to be declared to be corresponding laws under section 95 (Declaration of corresponding laws);

(c) any other function given to the governing board under this Act or another territory law.

Note The governing board also has functions under the Financial Management Act 1996.

(1) The authority may arrange with the chief executive to use public servants in the administrative unit under the chief executive’s control.

(2) The Public Sector Management Act 1994 applies to the management by the authority of public servants who are the subject of an arrangement under subsection (1).

The registrar may appoint a public servant as an inspector for this Act.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

Note 3 Words in the singular in a provision include words in the plural (see Legislation Act, s 145).

(1) The registrar must give an inspector an identity card stating the person’s name and that the person is an inspector.

(2) The identity card must show—

(a) a recent photograph of the person; and

(b) the card’s date of issue and expiry; and

(c) anything else prescribed by regulation.

(3) A person commits an offence if—

(a) the person stops being an inspector; and

(b) the person does not return the person’s identity card to the registrar as soon as practicable, but not later than 7 days, after the day the person stops being an inspector.

Maximum penalty: 1 penalty unit.

(4) An offence against this section is a strict liability offence.

(1) This section applies if an inspector believes on reasonable grounds that premises are the premises of an employer.

(2) The inspector may—

(a) at any reasonable time, enter the premises; or

(b) at any time, enter the premises with the occupier’s consent.

(3) However, subsection (2) (a) does not authorise entry into a part of premises that is being used only for residential purposes.

(4) An inspector may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.

(5) To remove any doubt, an inspector may enter premises under subsection (2) without payment of an entry fee or other charge.

(6) In this section:

at any reasonable time means at any time during normal business hours or any other time when the premises are being used as a workplace.

occupier, of premises, includes—

(a) a person believed on reasonable grounds to be an occupier of the premises; and

(b) a person apparently in charge of the premises.

An inspector must not remain at premises entered under this division if the inspector does not produce his or her identity card for inspection when asked by the occupier.

(1) When seeking the consent of an occupier to enter premises under section 28 (2) (b) (Powers in relation to employers’ premises), an inspector must—

(a) produce his or her identity card; and

(b) tell the occupier—

(i) the purpose of the entry; and

(ii) that anything found because of the entry may be used in evidence in court; and

(iii) that consent may be refused.

(2) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)—

(a) that the occupier was told—

(i) the purpose of the entry; and

(ii) that anything found because of the entry may be used in evidence in court; and

(iii) that consent may be refused; and

(b) that the occupier consented to the entry; and

(c) stating the time and date when consent was given.

(3) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier.

(4) A court must find that the occupier did not consent to entry to the premises by the inspector under this division if—

(a) the question whether the occupier consented to the entry arises in a proceeding in the court; and

(b) an acknowledgment of consent for the entry is not produced in evidence for the entry; and

(c) it is not proved that the occupier consented to the entry.

An inspector who enters premises under this division may, for this Act, do 1 or more of the following in relation to the premises:

(a) examine any records required to be kept by an employer under this Act;

(b) require the occupier, or anyone at the premises, to give the inspector information relating to the rights and duties under this Act of an employer or someone employed by the employer;

(c) require the occupier, or anyone at the premises, to give the inspector records, or copies of records that the person has, or has access to, that are required to be kept by an employer under this Act.

Note 1 The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

Note 2 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including any regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

A person must take all reasonable steps to comply with a requirement made of the person under section 31 (b) or (c).

Maximum penalty: 50 penalty units.

(1) An inspector may, by written notice given to a person, require the person to give to the inspector the stated information or document that the inspector reasonably needs for this Act.

(2) The information or document must be given to the inspector within the period stated in the notice or, if an inspector allows a longer period, the longer period.

(3) The period stated in the notice must be not less than 14 days after the day the notice is given to the person.

(4) A person commits an offence if—

(a) the person is required to give information or a document to an inspector under subsection (1); and

(b) the person does not take all reasonable steps to comply with the requirement within the period applying under subsection (2).

Maximum penalty: 50 penalty units.

The money of the authority consists of—

(a) amounts received by the authority under section 56 (Determination of levy—employers) and section 61 (Determination of levy—contractors); and

(b) income derived from the investment of money of the authority; and

(c) amounts borrowed for, and lent to, the authority by the Treasurer under the Financial Management Act 1996, section 59 (Borrowing by territory authorities); and

(d) any other amounts paid to the authority.

The money of the authority must be applied only—

(a) in payment or discharge of the costs, expenses or other obligations of the authority under this Act; or

(b) in payment of remuneration and allowances payable to anyone appointed or employed under this Act.

(1) The Minister must appoint an actuary for this Act.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 For example, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

(2) The actuary must conduct an investigation of the state and adequacy of the money of the authority—

(a) if asked by the governing board; and

(b) in any event, at least once every 3 years.

(3) The actuary must report the results of the investigation to the governing board and state whether, in the actuary’s opinion, any reduction or increase is necessary in the rates of levies payable to the authority by employers or contractors under this Act.

(4) The actuary must give the Minister a copy of each report under this section.

This part does not apply in relation to work in the—

(a) building and construction industry; or

(b) contract cleaning industry.

The authority must keep a register of registered employers (the employers register).

(1) An employer must apply to the registrar for registration as an employer not later than—

(a) 1 month after becoming an employer; or

(b) the end of any additional time the registrar allows.

Maximum penalty: 50 penalty units.

Note If a form is approved under s 98 for an application, the form must be used.

(2) An offence against this section is a strict liability offence.

(3) The registrar may allow additional time for subsection (1) before or after the end of the 1-month period mentioned in subsection (1) (a).

(1) This section applies if a person applies to the registrar under section 39 for registration as an employer.

(2) The registrar must—

(a) register the person as an employer if satisfied the person is an employer; or

(b) in any other case—refuse to register the person as an employer.

A person is registered as an employer when the registrar enters the following particulars in the employers register:

(a) the person’s name and address;

(b) the person’s trading name (if any);

(c) the person’s ABN (if any);

(d) the address of the person’s principal place of business;

(e) if the person is a corporation—the corporation’s ACN;

(f) the person’s registration day as an employer;

(g) any other relevant particulars the governing board reasonably directs.

(1) The registrar must give a person registered as an employer under section 41 a certificate of registration that includes—

(a) the registration particulars mentioned in section 41; and

(b) the person’s registration day; and

(c) when the certificate of registration ends.

Note 1 The certificate must be given to the employer as soon as possible after the employer is registered (see Legislation Act, s 151B).

Note 2 Registration day—see s 15.

Note 3 If a form is approved under s 98 for a certificate, the form must be used.

(2) An employer’s certificate of registration must end not more than 1 year after the certificate is issued.

(3) The registrar must give a registered employer a certificate of registration to replace a certificate that ends.

(4) If satisfied that an employer’s certificate of registration has been stolen, lost or destroyed, the registrar must give the employer a replacement certificate of registration.

(5) An employer’s certificate of registration is evidence of the matters stated in the certificate.

(1) If the details shown on a registered employer’s certificate of registration change, the employer must, not later than 7 days after the day the change happens—

(a) tell the registrar, in writing, of the change; and

(b) return the certificate to the registrar.

Maximum penalty: 5 penalty units.

(2) An offence against this section is a strict liability offence.

(3) The registrar must give the employer an amended certificate of registration for the remainder of the term of the returned certificate.

(1) This section applies if the registrar refuses to register a person as an employer under section 40 (Dealing with applications for registration as employer).

(2) The applicant for registration may apply to the governing board for review of the registrar’s decision.

Note If a form is approved under s 98 for an application, the form must be used.

(3) The application must be in writing and be made not later than 2 months after the day notice of the decision is received by the applicant.

(4) If an application is made under subsection (2), the governing board must—

(a) if satisfied that the person to whom the application relates is an employer—direct the registrar to register the person as an employer; or

(b) in any other case—confirm the registrar’s decision to refuse registration.

(5) The governing board must give the applicant written notice of the decision not later than 7 days after the day the decision is made.

Note The Legislation Act, pt 19.5 deals with service of documents.

(1) If a court convicts a person, or finds the person guilty, of an offence against section 39 (Application for registration by employers), the court may, in addition to imposing a penalty on the person, order the person to—

(a) apply to the registrar for registration as an employer within a stated time; and

(b) pay the governing board the amount that would have been payable by the person under section 55 (Levy payments by employers) or section 60 (Levy payments by contractors) if the person had complied with this Act since becoming an employer.

(2) A person who contravenes an order under subsection (1) commits an offence.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

The authority must keep a register of registered workers (the workers register).

A person may apply to the registrar for registration as a worker.

Note If a form is approved under s 98 for an application, the form must be used.

(1) This section applies if a person—

(a) is an employee of an employer; and

(b) is not registered under this Act; and

(c) does not apply for registration under section 47 before the end of 3 months after the day the person starts work for the employer.

(2) The employer may apply to the registrar for registration of the person as a worker at any time after the end of the 3-month period.

Note If a form is approved under s 98 for an application, the form must be used.

(1) This section applies if—

(a) a person applies under section 47 for registration as a worker; or

(b) an employer applies under section 48 for the registration of a person as a worker.

(2) The registrar must—

(a) if satisfied that the person is a worker—register the person as a worker; or

(b) in any other case—refuse to register the person as a worker.

(1) The registrar must, not later than 7 days after making a decision under section 49, give written notice of the decision to—

(a) the applicant for registration; and

(b) for an employer application—the person in relation to whom the application was made.

Note The Legislation Act, pt 19.5 deals with service of documents.

(2) If the registrar’s decision is to register the person as a worker, the notice must state the person’s registration day.

(3) If the registrar’s decision is to refuse to register the person as a worker, the notice must include—

(a) an explanation for the decision; and

(b) a statement of the effect of section 51.

(1) This section applies if the registrar refuses to register a person as a worker under section 49 (Dealing with applications for registration as worker).

(2) The following people may apply to the governing board for review of the registrar’s decision:

(a) the applicant for registration;

(b) for an employer application—the person in relation to whom the application was made.

Note If a form is approved under s 98 for an application, the form must be used.

(3) The application must be in writing and be made not later than 2 months after the day notice of the decision to be reviewed is received by the applicant.

(4) If an application is made under subsection (2), the governing board must—

(a) if satisfied that the person to whom the application relates is a worker—direct the registrar to register the person as a worker; or

(b) in any other case—confirm the registrar’s decision to refuse registration.

(5) The governing board must give the following people written notice of the decision not later than 7 days after the day the decision is made:

(a) the applicant;

(b) for an employer application—the person in relation to whom the application was made.

Note The Legislation Act, pt 19.5 deals with service of documents.

A person is registered as a worker when the registrar enters the following particulars in the workers register:

(a) the person’s name, address and date of birth;

(b) the name and address of the principal place of business of the person’s employer (if any);

(c) the person’s registration day as a worker;

(d) any other relevant particulars the governing board reasonably directs.

This part does not apply in relation to work in the—

(a) building and construction industry; or

(b) contract cleaning industry.

(1) A person who is an employer during a quarter must give the authority a return containing the required information not later than—

(a) 1 month after the end of the quarter; or

(b) the end of any additional time the registrar allows.

Maximum penalty: 20 penalty units.

Note If a form is approved under s 98 for a return, the form must be used.

(2) Subsection (1) does not apply in relation to an employee who—

(a) is not a registered worker; or

(b) was not recorded as a worker in the employer’s previous quarterly return; or

(c) carried out work for the employer for less than 5 days during the quarter.

(3) An offence against this section is a strict liability offence.

(4) The registrar may allow additional time for subsection (1) before or after the end of the 1-month period mentioned in subsection (1) (a).

(5) In this section:

required information, for an employer for a quarter, means—

(a) the name of each of the employer’s registered workers who carried out work for the employer during the quarter; and

(b) for each of the employer’s employees—

(i) the total ordinary remuneration paid or payable by the employer to the employee for work during the quarter; and

(ii) the number of weekdays, or part weekdays, during the quarter to which the remuneration relates; and

(c) anything else prescribed by regulation.

(1) A person who is an employer during a quarter must, when the person gives the authority a return under section 54, pay the authority the levy payable under section 56 for the quarter.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

(1) The Minister may determine the levy payable by employers on the ordinary remuneration paid or payable by employers to employees.

Note The Legislation Act, s 48 provides that a power to make a statutory instrument includes the power to make an instrument about 1 or more of the matters and to make different provisions with respect to different matters.

(2) The governing board must, from time to time, recommend in writing to the Minister the levy that should be payable by employers.

(3) Before making a determination, the Minister must have regard to any recommendation made under subsection (2), but need not follow it.

(4) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) This section applies if an employer fails to—

(a) give the authority a return in accordance with section 54 (Quarterly returns by employers); or

(b) pay the authority the levy payable under section 56.

(2) The employer is liable to pay to the authority $100 for each month, or part of a month, for each failure under subsection (1).

If an employer is 1 month late in giving both a return to the authority and making the related payment to the authority, the employer is liable to pay the authority $200.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) The registrar may, on application by the person or on the registrar’s own initiative, remit all or part of an amount payable under subsection (2) if satisfied that—

(a) the circumstances that gave rise to the failure were not caused either directly or indirectly by the person; or

(b) because of special circumstances, it would be fair and reasonable to remit.

(4) If a court finds a person guilty of an offence against section 54 (Quarterly returns by employers) or section 55 (Levy payments by employers) (whether or not it convicts the person), the court may, in addition to imposing a penalty on the person, order the person to pay the authority—

(a) any amount that is payable under subsection (2) to the date of the order; and

(b) for a prosecution for an offence against section 55—the levy to which the prosecution relates.

(1) This section applies if an individual applies to the authority for an exemption under this section.

(2) If the governing board is satisfied that the individual is a working director, the governing board must grant the individual’s employer an exemption from payment of a levy payable under section 56 (Determination of levy—employers) for work carried out by the individual.

Note If a form is approved under s 98 for an application, the form must be used.

(3) The exemption is in force until whichever of the following first occurs:

(a) the individual stops being a working director other than because he or she ceases to carry out work;

(b) the individual tells the authority in writing that the individual no longer wishes the exemption to apply in relation to him or her.

(4) The individual is taken not to be an employee of the employer under this Act while the exemption is in force.

(1) A person who is a registered contractor during a quarter must give the authority a return containing the required information not later than—

(a) 1 month after the end of the quarter; or

(b) the end of any additional time the registrar allows.

Maximum penalty: 20 penalty units.

Note If a form is approved under s 98 for a return, the form must be used.

(2) An offence against this section is a strict liability offence.

(3) The registrar may allow a registered contractor additional time to give the authority a return under subsection (1) before or after the end of the 1-month period mentioned in subsection (1) (a).

(4) In this section:

required information, for a registered contractor, means—

(a) the number of weekdays, or part weekdays, during the quarter on which the contractor carried out work; and

(b) the contractor’s total ordinary remuneration for work during the quarter; and

(c) anything else prescribed by regulation.

(1) A person who is a registered contractor during a quarter must, when the person gives the authority a return under section 59, pay to the authority the levy payable under section 61 for the quarter.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

(1) The Minister may determine the levy payable by registered contractors on the ordinary remuneration paid or payable to registered contractors.

Note The Legislation Act, s 48 provides that a power to make a statutory instrument includes the power to make an instrument about 1 or more of the matters and to make different provisions with respect to different matters.

(2) The governing board must, from time to time, recommend in writing to the Minister the levy that should be payable by registered contractors.

(3) Before making a determination, the Minister must have regard to any recommendation made under subsection (2), but need not follow it.

(4) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) An employer must keep a written record showing the relevant particulars for each employee who carries out work for the person.

Maximum penalty: 20 penalty units.

(2) An employer must keep the written record for 6 years after the day the employee stops being employed by the employer.

Maximum penalty: 20 penalty units.

(3) An offence against this section is a strict liability offence.

(4) In this section:

relevant particulars, for an employee of an employer, means—

(a) the employee’s name and date of birth; and

(b) the nature of the work carried out by the employee; and

(c) the employee’s ordinary remuneration for each quarter; and

(d) the number of days worked by the employee in each quarter; and

(e) the date when the employee began service with the employer; and

(f) long service leave granted, or payment made instead of leave, to the employee; and

(g) if the employee stops service with the employer—the date the employee stops service.

(1) A registered contractor must keep a written record of the following:

(a) the contractor’s name and date of birth;

(b) the nature of the work carried out by the contractor;

(c) when and for whom work is carried out;

(d) the contractor’s ordinary remuneration for each quarter;

(e) the number of days worked by the contractor in each quarter.

Maximum penalty: 20 penalty units.

(2) A registered contractor must keep the written record for 6 years after the day the record is made.

Maximum penalty: 20 penalty units.

(3) An offence against this section is a strict liability offence.

This part does not apply in relation to work in the—

(a) building and construction industry; or

(b) contract cleaning industry.

The registrar must enter the following particulars in the workers register for a registered worker:

(a) if the worker is serving a period of apprenticeship—the date when the apprenticeship began;

(b) if the worker is an employee—each employer for whom the employee works;

(c) the number of days of service with which the worker is credited under this Act;

(d) the total ordinary remuneration of the worker for work carried out by the worker;

(e) the worker’s entitlement to long service leave;

(f) details of the long service leave granted to, or taken by, the worker, or payment instead of long service leave made to the worker, under this Act or the Long Service Leave Act 1976;

(g) if the worker has stopped working in the private sector—the date when the worker stopped working in the private sector;

(h) any other relevant particulars the governing board reasonably directs.

(1) This section applies if the governing board considers that the total ordinary remuneration for a worker stated in a return given to the authority under section 54 (Quarterly returns by employers) or section 59 (Quarterly returns by contractors) for a quarter is insufficient or excessive because of the nature of the work carried out by the worker in the quarter.

(2) The governing board must give the following people a notice that summarises the person’s rights under subsection (3):

(a) for a return under section 54—the employer who submitted the return and the employee;

(b) for a return under section 59—the contractor.

(3) Not later than 1 month after being given the notice a person mentioned in subsection (2) may ask the governing board to—

(a) take into account any matter set out in writing; and

(b) arrange for the person to appear before the governing board (including by a representative) and make representations about the matter.

(4) If asked under subsection (3) (b), the governing board must arrange for the person to appear before the governing board as soon as practicable.

(5) After considering any statement and representations under subsection (3), the governing board may—

(a) agree that the total ordinary remuneration stated in the return for the quarter is reasonable; or

(b) fix another amount as the total ordinary remuneration of the worker for the quarter.

(1) The governing board must, not later than 7 days after it makes a decision under section 66 (5), give written notice of the decision to—

(a) if the decision relates to a return under section 54 (Quarterly returns by employers)—the employer who gave the return and the employee; or

(b) if the decision relates to a return under section 59 (Quarterly returns by contractors)—the contractor.

(2) If the decision is to fix another amount under section 66 (5) (b), the notice must include—

(a) the total ordinary remuneration fixed by the governing board for the quarter; and

(b) statement about the effect of section 68 and section 69 (Variation of ordinary remuneration—payment of additional amounts).

Note The notice must also comply with the Administrative Appeals Tribunal Act 1989, s 25B (1) (see s 93 (3)).

(1) This section applies if the governing board fixes an amount (the varied amount) under section 66 (5) (b) in relation to a worker.

(2) The varied amount is taken, for this Act, to be the worker’s total ordinary remuneration for work by the worker for the quarter.

(3) The following provisions apply if the varied amount relates to a return under section 54 (Quarterly returns by employers) by an employer of a registered employee:

(a) if the varied amount is more than the amount (the returned amount) shown in the return as the total ordinary remuneration of the employee, the employer must pay the authority the additional amount payable under section 56 (Determination of levy—employers) for the employee for the quarter;

(b) if the varied amount is less than the returned amount, the authority must—

(i) if asked by the employer to refund the overpayment of the levy payable under section 56—refund the overpayment; or

(ii) in any other case—credit the overpayment against future amounts payable under section 56 by the employer.

(4) The following provisions apply if the varied amount relates to a return under section 59 (Quarterly returns by contractors) by a registered contractor:

(a) if the varied amount is more than the amount (the returned amount) shown in the return as the total ordinary remuneration of the contractor, the contractor must pay the authority the additional amount payable under section 61 (Determination of levy—contractors) for the contractor for the quarter;

(b) if the varied amount is less than the returned amount, the authority must—

(i) if asked by the contractor to refund the overpayment of the levy payable under section 61—refund the overpayment; or

(ii) in any other case—credit the overpayment against future amounts payable under section 61 by the contractor.

(1) This section applies if—

(a) the governing board decides to fix an amount as the total ordinary remuneration of a worker under section 66 (5) (b); and

(b) because the governing board has fixed the amount a person must pay an amount under section 68 (3) (a) or (4) (a).

(2) The person must pay the amount not later than—

(a) 1 month after the day the person receives notice under section 67 of the governing board’s decision; or

(b) the end of any additional time the registrar allows.

Maximum penalty: 20 penalty units.

(3) An offence against this section is a strict liability offence.

(4) The registrar may allow a person additional time to pay the amount under subsection (2) before or after the end of the 1-month period mentioned in subsection (2) (a).

(1) A registered worker is to be credited in the workers register with 1 day’s service for each day (including a day when the worker does not carry out work) in each service period of the worker on or after the worker’s registration day.

A day when a worker attends a court in accordance with a summons to serve as a juror or a subpoena to give evidence or produce documents is a day in the worker’s period of service when the worker does not carry out work.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) However, a registered worker must not be credited with more than 365 days in a financial year.

(1) The registrar must remove a person from the workers register if the person has not been credited under this Act or a corresponding law with at least 1 day’s service for 4 consecutive years.

(2) If the person is removed under subsection (1)—

(a) the person stops being a registered worker on the day the person is removed; and

(b) the person is not entitled to apply for, or to be paid an amount for or instead of, long service leave for any days of service entered in the register before the day the person stopped being a registered worker.

(3) However, subsection (2) (b) does not apply if the person would, but for the person ceasing to be registered, have been entitled to payment for the period under section 81 (Entitlement to payment instead of leave).

(4) The registrar must not remove a person from the workers register if the person stops carrying out private sector work and tells the authority that the person is otherwise employed or engaged in other work until whichever of the following first occurs:

(a) the person applies to the authority for payment of the total amount for or instead of long service leave;

(b) the person’s employer makes an application under section 96 (4) (Benefits under Long Service Leave Act 1976) for payment of the total amount to which the employer is entitled under section 96 (5);

(c) if the person is a working director or contractor—the person asks the authority to remove the person from the register;

(d) the period of 10 years, starting on the day when the person stops carrying out private sector work, ends.

(5) A request under subsection (4) (c) must state—

(a) the date when the person became otherwise employed or engaged in private sector work; and

(b) the name and address of the principal place of business of the person’s employer (if any).

(1) The governing board must direct the registrar to re-register a person in the workers register if—

(a) the person has been removed from the register under section 71; and

(b) the governing board is satisfied that the person has been credited with a period of service under a corresponding law within the period of 4 years ending on the day when the person was removed from the register.

(2) If a person is re-registered under subsection (1), this Act applies in relation to the person as if the person had not been removed from the register.

(3) This section does not affect any right that a person who has been removed from the workers register may have to again become a registered worker.

The registrar must, as soon as practicable after 31 July and before 1 November each year, give each registered worker a certificate stating—

(a) the number of days of service, from the worker’s registration day to the end of the previous financial year, that the worker has been credited with in the workers register; and

(b) the number of days of service that the worker has been credited with for the previous financial year; and

(c) the total ordinary remuneration paid to the worker during the previous financial year by a registered employer; and

(d) if the worker is a contractor—the total amount paid by the contractor under section 61 (Determination of levy—contractors) for the previous financial year.

The registrar must, as soon as practicable after 31 July and before 1 November each year, give each registered employer a certificate stating—

(a) the name of each registered worker of the employer recorded in the workers register; and

(b) for each registered worker—

(i) the number of days of service, from the worker’s registration day to the end of the previous financial year, that the worker has been credited with in the workers register; and

(ii) the number of days of service that the worker has been credited with for the previous financial year; and

(c) the total amount paid by the employer under section 56 (Determination of levy—employers) for the previous financial year.

(1) A person who is given a certificate under section 73 (Annual certificates for workers) or section 74 may object to the governing board about the accuracy of a matter stated in the certificate.

(2) An objection must be made in writing within 6 months after the day the certificate is given to the person objecting.

Note For how documents may be given, see the Legislation Act, pt 19.5.

(3) If an objection is made, the governing board must decide the objection and must, if the board allows the objection—

(a) make any necessary correction in the workers register; and

(b) give an amended certificate to the person who objected.

A registered worker is taken to have completed a year of recognised service for each 365 days of recognised service.

(1) The long service leave formula is—

(2) In this section:

RS means the applicant’s number of days recognised service.

W means the number of weeks long service leave.

(1) A registered worker who has 10 years or more recognised service is entitled to the number of weeks long service leave worked out in accordance with the long service leave formula.

(2) A registered worker is entitled to long service leave for additional days of service worked out in accordance with the long service leave formula if the worker—

(a) becomes entitled to long service leave under this Act; and

(b) is credited with the additional days in the workers register after becoming entitled to long service leave.

(1) The employer of a registered employee commits an offence if—

(a) the employee’s long service leave accrues; and

(b) the employer does not grant the employee the long service leave before the end of the defined period.

Maximum penalty: 50 penalty units.

(2) Long service leave must not be granted for a period of less than 2 weeks.

(3) The employer of a registered employee commits an offence if—

(a) the employer grants the employee long service leave; and

(b) the employer does not give the employee a written statement of the day when the long service leave starts and stops—

(i) at least 2 months before the day when the long service leave starts; or

(ii) if the employer and employee agree on a shorter period—before the start of the period agreed.

Maximum penalty: 50 penalty units.

(4) An offence against this section is a strict liability offence.

(5) In this section:

defined period, for long service leave accrued by a registered employee of an employer, means—

(a) 6 months after the day the leave accrues; or

(b) if, on application by the employer or employee, the governing board allows a period longer than 6 months—the period allowed by the governing board; or

(c) if the employer and employee agree on a period longer than 6 months—the period agreed.

(1) A registered employee who has been granted long service leave under section 79, or a registered contractor who is entitled to long service leave, may apply to the authority for payment for the leave.

Note If a form is approved under s 98 for an application, the form must be used.

(2) If the governing board is satisfied that the applicant is entitled to long service leave under this Act, the authority must pay the applicant the amount payable under section 85 (How are leave payments worked out?).

(3) The authority must pay an applicant any amount payable under subsection (2) at least 7 days before the applicant becomes entitled to the long service leave if—

(a) the application is made at least 14 days before the day the applicant becomes entitled to long service leave under this Act; and

(b) the applicant asks in the application for the amount to be paid.

(1) This section applies to a registered worker who has at least 5 years recognised service if—

(a) the worker permanently leaves work; and

(b) at least 20 weeks have passed since the day the worker permanently left work; and

(c) the worker has not been credited with service in the workers register for any of the days in the 20-week period.

(2) This section also applies if a registered worker has at least 55 days recognised service and any of the following apply to the worker:

(a) the worker has left work because of total incapacity;

(b) the worker has reached the prescribed retiring age;

(c) the worker has died.

(3) If the governing board is satisfied that this section applies to the worker, the worker is entitled to payment instead of long service leave for the number of weeks long service leave worked out in accordance with the long service leave formula.

(4) In this section:

prescribed retiring age means—

(a) for a registered worker who has been granted a service pension under the Veterans’ Entitlements Act 1986 (Cwlth), section 38 (Eligibility for partner service pension)—the age at which the worker first receives payment of the service pension; or

(b) in any other case—

(i) for a person born before 1 July 1960—55 years; or

(ii) for a person born during the year 1 July 1960 to 30 June 1961—56 years; or

(iii) for a person born during the year 1 July 1961 to 30 June 1962—57 years; or

(iv) for a person born during the year 1 July 1962 to 30 June 1963—58 years; or

(v) for a person born during the year 1 July 1963 to 30 June 1964—59 years; or

(vi) for a person born after 30 June 1964—60 years.

(1) If a registered worker is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for the payment.

Note If a form is approved under s 98 for an application, the form must be used.

(2) An application by a registered employee, on the ground that the employee has stopped work because of total incapacity, must be accompanied by a doctor’s certificate stating that the employee is totally incapacitated for employment.

(1) This section applies to an applicant for payment under section 82.

(2) The governing board may require the applicant to submit to a medical examination by a doctor chosen by the governing board from a panel of 3 doctors nominated by the ACT branch of the Australian Medical Association.

(3) All fees or charges payable for a medical examination under subsection (2) must be paid by the authority.

(1) This section applies to an applicant for payment under section 82.

(2) If the governing board is satisfied that the applicant is entitled to payment instead of long service leave under this Act, the authority must pay the applicant the amount payable under section 85.

(3) If the applicant fails, without reasonable excuse, to comply with a requirement under section 83 (2), the governing board may refuse the application.

(1) For section 80 (Payment for leave) and section 84, the amount payable to a registered worker for, or instead of, long service leave is—

(a) for any part of the entitlement to long service leave accrued as an employee—the amount worked out in accordance with section 86; and

(b) for any part of the entitlement to long service leave accrued as a contractor—the amount worked out in accordance with section 87.

(2) For subsection (1)—

(a) long service leave must be taken in the order in which it accrued; and

(b) if payment instead of long service leave is being made—the payment is made in relation to the leave in the order in which it accrued.

Susan has 10 years of service in private sector work giving her an entitlement to 8.3 weeks long service leave. She first worked in the industry as a registered employee and accrued 5 weeks of the entitlement in that capacity. Susan then worked as a registered contractor and accrued 3.3 weeks of the entitlement in that capacity.

Susan decides to take 7 weeks long service leave. The payment for the leave is the total of the following amounts:

(a) the amount calculated under s 86 where ‘D’ is 1825 (ie it took 1825 days service as a registered employee to accrue the first 5 weeks of her long service leave entitlement);

(b) the amount calculated under s 87 which is the total of the amounts paid to authority under s 60 for her first 2.41 years work as a registered contractor (ie it took that period of service as a registered contractor to accrue the next 2 weeks of her long service leave entitlement) and the interest under s 87 on those amounts.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For section 85, the amount payable to a registered worker for long service leave for service accrued as a registered employee is worked out as follows:

(2) In this section:

D means the number of days service credited to the registered employee in the workers register and to which the payment relates.

designated day means—

(a) for a registered employee taking long service leave—the day the leave starts; or

(b) for a registered employee being paid instead of taking long service leave—the day the payment is made.

R is the highest of the weekly averages of the ordinary remuneration received by the registered employee during each of the following periods that applies to the employee:

(a) the most recent 2 quarters of service as a registered employee before the designated day;

(b) the most recent 4 quarters of service as a registered employee before the designated day;

(c) the most recent 20 quarters of service as a registered employee before the designated day;

(d) the most recent 40 quarters of service as a registered employee before the designated day.

Yosarian has worked in the private sector for 7 years. The periods in paragraphs (a), (b) and (c) apply to Yosarian because he has completed more than 20 quarters (or 5 years), but less than 40 quarters (or 10 years), relevant service.

Yosarian’s average weekly income for the 2 quarters before the designated day is $283. His weekly averages for the 4 and 20 quarters before the designated day are $427 and $375, respectively. Accordingly, R is $427 because it is the highest of the weekly averages.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) For section 85 (How are leave payments worked out?), the amount payable to a registered worker for long service leave for service accrued as a registered contractor is the total of the following for the service:

(a) amounts paid by the contractor to the authority under section 61 (Determination of levy—contractors);

(b) interest at the determined rate worked out from the date of receipt of each amount paid under section 61 until the designated day for the leave.

(2) The governing board must determine an interim rate of interest from time to time before the determination of the rate under subsection (1).

(3) The determined rate of interest must—

(a) be worked out after the end of each financial year for the previous financial year; and

(b) take into account the expenses incurred in administering the authority; and

(c) be at least 75% of the rate of interest, expressed as a percentage, earned by the authority worked out as follows:

(4) In this section:

designated day—see section 86.

FB means the amount of the total equity of the authority at the end of the financial year immediately before the financial year for which the rate is being determined.

FE means the amount of the total equity of the authority at the end of the financial year for which the rate is being determined.

I is the income derived from the investment of the authority’s money in the financial year for which the rate is being determined.

total equity, in relation to the authority, means the total assets less the total liabilities of the authority worked out from the audited balance sheet of the authority for the relevant financial year.

(1) This section applies if the authority pays an amount to a registered worker under section 80 (Payment for leave) or section 84 (Decision on application for payment).

(2) The authority must delete from the workers register the details relating to the service period for which the worker has been paid.

(3) However, the authority must keep another record of—

(a) the period of the service; and

(b) the amount paid to the worker for long service leave or instead of long service leave; and

(c) the period of long service leave (if any) granted to or taken by the worker.

(1) This section applies if a public holiday falls during a period of long service leave taken by a registered worker.

(2) The period of long service leave is increased by 1 day for each public holiday.

In this part:

Building and Construction Industry Act means the Long Service Leave (Building and Construction Industry) Act 1981.

Contract Cleaning Industry Act means the Long Service Leave (Contract Cleaning Industry) Act 1999.

eligible worker means a worker who has recognised service as an employee or contractor under the Building and Construction Industry Act or the Contract Cleaning Industry Act.

(1) In working out an eligible worker’s entitlement to a long service benefit under this Act, the worker’s recognised service is taken to include the worker’s recognised service under—

(a) the Building and Construction Industry Act; and

(b) the Contract Cleaning Industry Act.

(2) For subsection (1), the amount of the worker’s recognised service under—

(a) the Building and Construction Industry Act is to be worked out in accordance with that Act; and

(b) the Contract Cleaning Industry Act is to be worked out in accordance with that Act.

(3) An eligible worker is not entitled to a long service benefit under this Act in relation to recognised service under the Building and Construction Industry Act or the Contract Cleaning Industry Act if a long service benefit is, or has been, provided under that Act in relation to the service.

In this division:

reviewable decision means—

(a) a decision of the governing board mentioned in schedule 1, part 1.1, column 3 under a provision of this Act mentioned in schedule 1, part 1.1, column 2 in relation to the decision; or

(b) a decision of the registrar mentioned in schedule 1, part 1.2, column 3 under a provision of this Act mentioned in schedule 1, part 1.2, column 2 in relation to the decision.

(1) If the governing board makes a reviewable decision, the governing board must give written notice of the decision to each person mentioned in schedule 1, part 1.1, column 4 in relation to the decision.

(2) If the registrar makes a reviewable decision, the registrar must give written notice of the decision to each person mentioned in schedule 1, part 1.2, column 4 in relation to the decision.

(3) A notice must be in accordance with the requirements of the code of practice in force under the Administrative Appeals Tribunal Act 1989, section 25B (1).

A person may apply in writing to the administrative appeals tribunal for review of a reviewable decision.

(1) The Minister may, on the recommendation of the governing board, declare a law of a State to be a corresponding law if satisfied that it corresponds, or substantially corresponds, to this Act.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

(2) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) A registered employee who is eligible for long service benefits under this Act and the Long Service Leave Act 1976 must elect whether to take the benefits provided under this Act or the Long Service Leave Act 1976.

(2) The registered employee must tell the governing board in writing about the employee’s election and of the recognised service under this Act in relation to which the election is made.

(3) If a registered employee elects to take long service benefits under the Long Service Leave Act 1976 in relation to a period of recognised service under this Act, the governing board must remove from the workers register the days of recognised service credited to the employee in the period.

(4) A registered employer under this Act who is liable to make a payment under the Long Service Leave Act 1976, section 8 (Manner of payment for leave) in relation to a period of recognised service by a registered employee may apply to the governing board for payment of the amount on the employer’s behalf, or reimbursement of the amount paid, if—

(a) the employee has elected to take long service benefits under that Act; and

(b) but for the election, long service benefits would have been payable under this Act in relation to the period of recognised service.

(5) If the governing board is satisfied the amount is properly payable, or was properly paid, by the employer under the Long Service Leave Act 1976, section 8, the governing board must make the payment on the employer’s behalf, or reimburse the employer, the amount applied for, less any other amount outstanding payable by the employer to the governing board.

(1) In a proceeding for a contravention of section 54 (Quarterly returns by employers) or section 59 (Quarterly returns by contractors), a certificate signed by or for the registrar to the effect of any of the following is evidence of the matter stated in the certificate:

(a) that the registrar had allowed a stated person an additional stated period to give the governing board a return under the section for a stated quarter;

(b) that the registrar had not allowed a stated person an additional period to give the board a return under the section for a stated quarter;

(c) that a stated person had given the board a return under the section for a stated quarter on a stated date;

(d) that a stated person had not given the board a return under the section for a stated quarter on or before a stated date.

(2) In a proceeding (including a proceeding for a contravention of section 55 or section 60), a certificate signed by or for the registrar to the effect of any of the following is evidence of the matter stated in the certificate:

(a) that a stated levy under a stated section was payable by a stated person for a stated quarter;

(b) that, on or before a stated date, a stated person had not paid the governing board, under a stated section, a stated levy that was payable by the person for a stated quarter;

(c) that, on a stated date, a stated person paid the governing board a stated levy under a stated section that was payable by the person for a stated quarter.

(1) The registrar may, in writing, approve forms for this Act.

(2) If the registrar approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see the Legislation Act, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

This Act amends the legislation mentioned in schedule 2.

• Private Sector Long Service Leave Authority

• Private Sector Long Service Leave Authority

(1) In this section:

prescribed law means—

(a) the Long Service Leave (Building and Construction Industry) Act 1981; or

(b) the Long Service Leave (Contract Cleaning Industry) Act 1999; or

(c) the Long Service Leave (Private Sector) Act 2007.

(2) This section applies to an employee who—

(a) is registered under a prescribed law; and

(b) has elected under a prescribed law to take long service benefits for a period stated by the employee.

(3) The employee’s election does not prevent the employee from receiving benefits under this Act.

(4) However, the employee is not entitled to a benefit under this Act for a period for which the employee has received a benefit under a prescribed law.

In this part:

eligible worker means a registered worker who also has recognised service under the Private Sector Act.

long service benefit means long service leave, or payment instead of leave, under this Act.

Private Sector Act means the Long Service Leave (Private Sector) Act 2007.

(1) In working out an eligible worker’s entitlement to a long service benefit under this Act, the worker’s recognised service is taken to include the worker’s recognised service under the Private Sector Act.

(2) For subsection (1), the amount of the worker’s recognised service under the Private Sector Act is to be worked out in accordance with that Act.

(3) In working out the amount to be paid under section 74 (Leave payments for service as registered employee) or 75 (Leave payments for service as registered contractor) to a person who is a registered employee whose period of recognised service includes recognised service under the Private Sector Act (the private sector service), the following days are to be excluded from the period of private sector service:

(a) the number of days during the assessment time when the applicant was absent from employment in the building and construction industry and was paid, or was entitled to be paid, ordinary remuneration, or compensation under the Workers Compensation Act 1951, by an employer in that industry, being days that are not credited to the applicant as service in the workers register;

(b) the number of public holidays and award holidays during the assessment time.

(4) An eligible worker is not entitled to a long service benefit under this Act in relation to recognised service under the Private Sector Act if a long service benefit is, or has been, provided under that Act in relation to the service.

In this part:

eligible worker means a registered worker who also has recognised service under the Private Sector Act.

long service benefit means long service leave, or payment instead of leave, under this Act.

Private Sector Act means the Long Service Leave (Private Sector) Act 2007.

(1) In working out an eligible worker’s entitlement to a long service benefit under this Act, the worker’s recognised service is taken to include the worker’s recognised service under the Private Sector Act.

(2) For subsection (1), the amount of the worker’s recognised service under the Private Sector Act is to be worked out in accordance with that Act.

(3) In working out the amount to be paid under section 78 (Working out leave payments—registered employees) and section 79 (Working out leave payments—registered contractors) to a person who is a registered employee whose period of recognised service includes recognised service under the Private Sector Act (the private sector service), the following days are to be excluded from the period of private sector service:

(a) the number of days during the assessment time when the applicant was absent from employment in the contract cleaning industry and was paid, or was entitled to be paid, ordinary remuneration, or compensation under the Workers Compensation Act 1951, by an employer in that industry, being days that are not credited to the applicant as service in the workers register;

(b) the number of public holidays and award holidays during the assessment time.

(4) An eligible person is not entitled to a long service benefit under this Act in relation to recognised service under the Private Sector Act if a long service benefit is, or has been, provided under that Act in relation to the service.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• administrative appeals tribunal

• appoint

• chief executive (see s 163)

• contravene

• disallowable instrument (see s 9)

• document

• Executive

• exercise

• function

• in relation to

• public servant

• quarter

• the Territory.

agreement means a workplace agreement under the Workplace Relations Act 1996 (Cwlth).

authority means the Private Sector Long Service Leave Authority established under section 16.

award means an award or workplace determination under the Workplace Relations Act 1996 (Cwlth).

building and construction industry—see the Long Service Leave (Building and Construction Industry) Act 1981, section 5.

Building and Construction Industry Act, for part 9 (Recognised service under Building and Construction Industry Act and Contract Cleaning Industry Act)—see section 90.

building and construction industry employer means an employer within the meaning of the Long Service Leave (Building and Construction Industry) Act 1981.

certificate of registration, for an employer, means a certificate of registration given to the employer under section 42.

chairperson means the chairperson of the governing board.

Contract Cleaning Industry Act, for part 9 (Recognised service under Building and Construction Industry Act and Contract Cleaning Industry Act)—see section 90.

contract cleaning industry—see the Contract Cleaning Industry Act 1999, section 5.

contract cleaning industry employer means an employer within the meaning of the Long Service Leave (Contract Cleaning Industry) Act 1999.

contractor—see section 10.

corresponding law means a law of a State declared under section 95 to be a corresponding law.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

day, in relation to an employee—see section 14.

deputy chairperson means the deputy chairperson of the governing board.

deputy registrar means the deputy long service leave registrar under section 23.

eligible worker—see section 90.

employee—see section 9.

employer—see section 7.

employer application means an application under section 48 (Application by employer for registration of employee).

employers register—see section 38.

governing board means the governing board of the authority.

inspector means a person who is an inspector under section 26.

levy means the levy determined under section 56 or 61.

long service benefit means long service leave, or payment instead of leave, under Part 8.

long service leave formula—see section 77.

member means a member of the governing board.

ordinary remuneration, in relation to a worker, means the total of—

(a) the salary or wages payable to the worker; and

(b) any allowances payable to the worker in relation to skill, qualifications, board and lodging; and

(c) any amounts payable to the worker under a bonus, performance pay or incentive scheme, being amounts that are usually paid to the worker with his or her salary or wages; and

(d) if the worker is provided with board and lodging by the employer, an amount equal to the value of that board and lodging.

payment instead of leave means payment under section 82 (Application for payment instead of leave).

quarterly return means a return under section 54 (Quarterly returns by employers) or section 59 (Quarterly returns by contractors).

recognised service, for a registered worker, means the total number of days for all service periods entered in the workers register for the worker.

registered contractor—

(a) means a registered worker who is a contractor; and

(b) for Part 8 (Long service leave and payments), includes a registered worker who has been a contractor.

(a) means a registered worker who is an employee; and

(b) for Part 8 (Long service leave and payments), includes a registered worker who has been an employee.

registered employer means a person who is registered under section 41.

registered worker means a worker who is registered under section 52.

registrar means the chief executive officer of the authority within the meaning of the Financial Management Act 1996, dictionary, definition of chief executive officer.

registration day—see section 15.

reviewable decision—see section 92.

service period—see section 12.

work—see section 13.

worker—see section 8.

workers register—see section 46.

working director means a person who is both a director and an employee of the same corporation if—

(a) the corporation has no other employees; or

(b) all of the employees of the corporation are also directors.

Presentation speech made in the Legislative Assembly on 2007.

Notified under the Legislation Act on 2007.

For the latest republication of amended laws, see www.legislation.act.gov.au.