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Long Service Leave (Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Long Service Leave Act 1992 to make the law relating
to long service leave more consistent with modern working arrangements and
to ensure that employees who take leave for family purposes are not
disadvantaged.
Clause Notes
Clause 1 sets out the main purpose of the Bill, which is to amend the Long
Service Leave Act 1992 to ensure that the law relating to long
service leave is more consistent with modern working practices
and with similar laws in other Australian jurisdictions, and to
ensure that employees who take leave for family reasons are not
disadvantaged.
Clause 2 states that the Act will come into effect on 1 January 2006.
Clause 3 states that in the Bill the Long Service Leave Act 1992 is called
the Principal Act.
Clause 4 paragraph (a) updates a reference to the Department of Business
and Employment by substituting "Innovation, Industry and
Regional Development" for "Business and Employment" in
section 4 of the Principal Act. This reflects the change in the
Department's name.
Paragraph (b) inserts a new definition of "employment
agreement", being an agreement (written or oral) under which an
employee is employed, including a certified agreement or
Australian Workplace Agreement made under the
Commonwealth Workplace Relations Act 1996.
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551293 BILL LA INTRODUCTION 19/4/2005
Clause 5 inserts a new section 56A into the Principal Act to provide for
pro rata leave after 10 years at the rate of 1/60th of the period of
employment.
For the purposes of working out when an employee with at least
10 but less than 15 years of service becomes entitled to long
service leave under section 56A, only two-thirds of the
employee's continuous employment completed before the
commencement of the section counts.
Examples:
An employee has completed 10 years continuous service
immediately before the commencement. The 10 years counts as
66667 years continuous service for working out when the
employee may take long service leave. The employee may take
the leave after completing another 33333 years continuous
service. The employee's entitlement then will be 1/60th of the
period of continuous service, that is, 1/60th of 133333 years.
An employee has completed 12 years continuous service
immediately before the commencement. The 12 years counts as
8 years continuous service for working out when the employee
may take long service leave. The employee may take the leave
after completing another 2 years continuous service.
The employee's entitlement then will be 1/60th of the period of
continuous service, that is, 1/60th of 14 years.
An employee has completed 13 years continuous service
immediately before the commencement. The 13 years counts as
8667 years continuous service for working out when the
employee may take long service leave. The employee may take
the leave after completing another 1333 years continuous
service. The employee's entitlement then will be 1/60th of the
period of continuous service, that is, 1/60th of 143333 years.
An employee has completed 15 years continuous service
immediately before the commencement. The employee may take
the leave immediately pursuant to section 56 of the Principal Act.
The employee's entitlement then is 13 weeks.
An employee starts employment after the commencement.
The employee may take long service leave after completing
10 years continuous service. The employee's entitlement then
will be equal to 1/60th of the period of his or her continuous
entitlement, that is, 1/60th of 10 years.
Clause 6 amends section 58 of the Principal Act to provide for an
entitlement to pro-rata long service leave after 7 years rather than
after 10 years.
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Clause 7 substitutes a new definition of "employee" in section 59 of the
Principal Act which includes casual and seasonal employees.
Clause 8 sub-clause (1) amends section 62(2) of the Principal Act to
extend the forms of leave that do not break continuity of service
to carer's, paternity and adoption leave. As a consequence, the
taking of any period of carer's leave (paid or unpaid), or of any
maternity, paternity or adoption leave (paid or unpaid) for a
period not exceeding 12 months (or any longer period specified
in the relevant employment agreement), will not interrupt the
employee's employment.
Sub-clause (2) repeals sections 62(2)(i) and 62(2)(j) of the
Principal Act as they are now covered by the new section
62(2)(c) and (ca).
Clause 9 inserts a new section 62A into the Principal Act to define the
term "continuous employment" in relation to casual and seasonal
employees--
· Section 62A(1) provides that the employment of an
employee employed by the same employer more than once
over a period is to be regarded as being continuous if there is
no more than an absence of 3 months between each instance
of employment in the period, or, if the absence is greater
than 3 months, it was due to the terms of the engagement of
the employee by the employer.
· Section 62A(2) provides that the employment of an
employee employed by the same employer more than once
over a period is to be regarded as being continuous if the
absences between instances of employment are due to the
seasonal nature of the employment.
· Section 62A(3) provides that sub-sections (1) and (2) apply
even if any of the employment is not full-time, the employee
is employed by the employer under more than 1 agreement,
or the employee has engaged in other work during the
relevant period.
Clause 10 substitutes a new section 63(3) of the Principal Act to provide
that any period of leave granted by the employer is to be counted
as part of the period of employment unless it was agreed in
writing, at the request of the employee, that it not be counted, or
the leave is unpaid adoption, maternity or paternity leave.
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Clause 11 sub-clause (1) substitutes new sections 64(3) and (4) in the
Principal Act to provide that--
· where an employee has no fixed ordinary time rate of pay,
the employee's ordinary time rate of pay is the greater of the
average weekly rate in the 12 months immediately before
leave is taken, or the average weekly rate in the 5 years
immediately before leave is taken; and
· where an employee's normal weekly number of hours is not
fixed or is fixed but changes one or more times during the
12 months immediately before leave is taken, the employee's
normal weekly number of hours is the greater of the average
weekly number of hours in the 12 months immediately
before leave is taken, or the average weekly number of hours
in the 5 years immediately before leave is taken.
Sub-clause (2) inserts a new section 64(7) into the Principal Act.
New section 64(7) provides that where an employee is working
under a return to work plan (as defined in the Accident
Compensation Act 1985), or is absent from work due to
workplace illness or injury and is receiving any benefits from the
Victorian WorkCover Authority for that illness or injury, the
employee's normal weekly hours and ordinary time rate of pay
are taken to be the greater of the employee's average weekly
hours and rate of pay immediately prior to the leave being taken,
or the employee's normal weekly hours and ordinary time rate of
pay immediately before the illness or injury.
Clause 12 substitutes a new section 66 of the Principal Act to provide that--
· An employer and an employee may agree when an employee
can take his or her leave (section 66(1)); and
· If the employer and employee cannot agree, the employer
may direct the employee to take his or her leave at a
particular time by giving the employee at least 3 months'
written notice (section 66(2)); and
· Subject to other parts of the section, the employee must take
the leave as directed (section 66(3)); and
· The employee may apply to the Industrial Division of the
Magistrates' Court for an order concerning the taking of long
service leave if the employee and employer cannot reach an
agreement or if the employee receives a notice from the
employer directing the employee to take the leave at a
particular time (section 66(4)); and
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· In determining such an application, the Court may take into
account all of the circumstances that are relevant, including
the needs of the employee and the needs of the employer's
business (section 66(5)).
Clause 13 increases the penalty in section 68(2) (payment while on leave)
and the penalty in section 69(2) (pay increases while on leave) in
the Principal Act from 2 penalty units to 20 penalty units.
Clause 14 substitutes a new section 70 in the Principal Act to provide that
long service leave does not include any public holiday occurring
during the period of leave. Section 70 currently provides that
long service leave includes any public holiday occurring during
the period of leave.
Clause 15 inserts a new section 71A into the Principal Act to provide that
an employee may request that his or her employer grant the
employee long service leave at half pay and for a period twice as
long as the period to which the employee would otherwise be
entitled. The employer must grant such a request if it is
reasonable to do so having regard to the needs of the business
and the needs of the employee.
Clause 16 increases the penalty in section 72(2) (employer to pay the
employee their full entitlement), the penalty in section 73(1)
(payment on the death of the employee) and the penalty in
section 74(2) (payments in lieu forbidden) of the Principal Act
from 2 penalty units to 20 penalty units.
Clause 17 inserts a new paragraph (c) into s75(1) of the Principal Act to
provide that the Industrial Division of the Magistrates Court may
hear a dispute concerning an employer's refusal to grant an
employee's request under section 71A.
Clause 18 increases the penalty in section 78(2) (offences concerning
working whilst on leave) of the Principal Act from 2 penalty
units to 5 penalty units.
Clause 19 inserts a new section 79(3) into the Principal Act to provide that
for the purposes of section 79, "employment agreement" does not
include an agreement or award made under the Commonwealth
Workplace Relations Act 1996.
Clause 20 increases the penalties in section 80(1), section 80(2) and
section 80(3) (offences relating to records) of the Principal Act
from 2 penalty units to 20 penalty units.
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Clause 21 updates a reference to the Department of Business and
Employment by substituting "Innovation, Industry and Regional
Development" for "Business and Employment" in section
154(1)(c) of the Principal Act. This reflects the change in the
Department's name.
Clause 22 inserts a new section 158A into the Principal Act--
· Section 158A(1) provides that for the purposes of the
Principal Act any conduct engaged in by a corporation is
also conduct engaged in by an executive officer of the
corporation if the executive officer knew about the conduct
or was reckless as to whether it was engaged in.
· Section 158A(2) defines "executive officer" of a corporation
to mean a director of the corporation or any other person
who is concerned, or takes part, in the management of the
corporation.
Clause 23 inserts a new section 159(2) into the Principal Act to provide that
for the purposes of section 159 "employment agreement" does
not include an agreement or award made under the
Commonwealth Workplace Relations Act 1996.
Clause 24 sub-clause (1) substitutes new sections 160(2) and (3) for section
160(2) of the Principal Act to allow an organisation registered
under the Commonwealth Workplace Relations Act 1996 to
bring proceedings in the Industrial Division of the Magistrates
Court on behalf of an employee to recover money owed to the
employee, if requested to do so by an employee who is a member
of the organisation. Proceedings under this section must be
started within 6 years after the employee's entitlement arises.
Sub-clause (2) inserts a new section 160(8) into the Principal Act
to define the term "registered organisation" as used in sections
160(2) and (3).
Clause 25 sub-clause (1) repeals section 161(2) of the Principal Act because
it is inconsistent with proposed new section 160(3).
Sub-clause (2) inserts a new section 161(6) into the Principal Act
to provide that in section 161, "employee" includes a former
employee and "employer" includes a former employer.
Clause 26 substitutes the Subordinate Legislation Act 1994 for the
Subordinate Legislation Act 1962 and repeals section 169(4) of
the Principal Act. Section 169(4) is no longer necessary because
its original purpose (that of deeming disallowance under section
169(3) of the Principal Act to be disallowance by Parliament) is
now dealt with in the Subordinate Legislation Act 1994.
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