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Long Service Leave (Preservation of
Entitlements) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Part 1 of the Bill outlines the purpose of the Bill, contains the commencement
provisions and defines the Principal Act.
Clause 1 sets out the purposes of the Bill, which are to amend the Long
Service Leave Act 1992 to--
· protect and maintain existing long service leave
entitlements;
· require disclosure by employers if proposed agreements
impact on entitlements;
· allow the Industrial Division of the Magistrates' Court to
make certain orders where an employer dismisses or
prejudices an employee in relation to long service leave.
Clause 2 states that the Act comes into operation on 1 October 2006,
except for Parts 2 and 4 which are deemed to have come into
operation on 27 March 2006. Parts 2 and 4 relate to preserved
entitlements and superior award conditions and are designed to
protect entitlements that may be lost as a result of the operation
of the Workplace Relations Amendment (Work Choices) Act
2005 of the Commonwealth, which came into operation on
27 March 2006. In order to afford maximum protection to
employees, Parts 2 and 4 are to operate from that date.
Clause 3 states that in the Act the Long Service Leave Act 1992 is called
the Principal Act.
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551396 BILL LA INTRODUCTION 30/5/2006
PART 2--PRESERVATION OF SUPERIOR AND ACCRUED
ENTITLEMENTS
Part 2 of the Bill inserts new Parts 6 and 7 into the Principal Act to provide
that in certain circumstances superior award entitlements that applied or
would have applied before 27 March 2006 are entitlements under this Act.
Clause 4 inserts new Parts 6 and 7 into the Principal Act.
PART 6--PRESERVATION OF SUPERIOR LONG
SERVICE LEAVE ENTITLEMENTS
New section 82 provides that this Division applies despite
anything to the contrary in the Principal Act.
New section 83 defines "award" to have the same meaning as it
had in the Workplace Relations Act 1996 of the Commonwealth
as in force immediately before 27 March 2006. This will include
a term of an award that was a common rule in Victoria under
sections 141, 142 or 493A of that Act as in force before
27 March 2006.
Paragraph (c) of the definition states that, in relation to an
employee and his or her employer, an award means an award that
was binding on the employer immediately before 27 March 2006,
or would have been binding on the employer had they been an
employer in the relevant industry at that time. An award also
includes an award to which the employee's employment was
subject immediately before 27 March 2006 or would have been
subject had the employee been employed by the employer at that
time.
New section 84 states that, if immediately before 27 March 2006
an award provided a long service leave entitlement that was more
beneficial to the employee than the entitlement in Part 5 of the
Principal Act, the employee is entitled under the Principal Act to
the superior entitlement. This applies whether or not the
employee was employed before 27 March 2006.
PART 7--PRESERVATION OF ACCRUED LONG
SERVICE LEAVE ENTITLEMENTS
New section 85 defines "award" as having the same meaning as it
has in Part 6.
"protected accrued long service leave entitlement" is defined to
mean, in relation to an employee, an entitlement to long service
leave that--
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· accrued by operation of an award that has been set aside,
varied, ceased to have effect or was revoked under Part 10
of the Workplace Relations Act 1996 of the Commonwealth;
or
· accrued by operation of an award that no longer applies to
that employee under Division 5 of Part 11 of the Workplace
Relations Act 1996 of the Commonwealth; or
· accrued by operation of an employment agreement that
has been terminated under Division 9 of Part 8 of the
Workplace Relations Act 1996 of the Commonwealth or
section 170MH of that Act as continued in operation by
clause 2(1)(k) of Schedule 7 to that Act; or
· accrued by operation of an agreement that is no longer
applicable under Divisions 3 or 4 of Part 11 of the
Workplace Relations Act 1996 of the Commonwealth.
New section 86 provides that an employee who is or was at any
time entitled to a protected accrued long service leave
entitlement is entitled to benefit from the entitlement under the
Principal Act regardless of the status of the award or agreement
under which the entitlement accrued.
PART 3--DUTIES OF EMPLOYERS
Part 3 of the Bill inserts new Parts 8 and 9 into the Principal Act to provide
for disclosure of unfair long service leave entitlements in certain
circumstances and remedies where this requirement is not met.
Clause 5 inserts new Parts 8 and 9 into the Principal Act.
PART 8--DISCLOSURE REQUIREMENTS FOR
WORKPLACE AGREEMENTS
New section 87 provides for disclosure of unfair long service
leave entitlements.
Sub-section (1) states that at least 7 days before entering into an
employment agreement with an employee that would modify or
remove the employee's entitlements under the Principal Act, the
employer must notify the employee in writing of the modification
or removal. The employee's entitlements under the Principal Act
will include any entitlements that arise as a result of the operation
of new sections 84 and 86.
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Sub-section (2) states that, for the purposes of sub-section (1), the
notice must state whether any of the following entitlements under
the Principal Act are removed or modified--
· an entitlement to long service leave after completing
15 years continuous service;
· an entitlement where an employee has completed at least
10 but less than 15 years continuous service;
· an additional entitlement if service stops after 15 years;
· an entitlement where employment stops after 7 years but
before 10 years;
· any other entitlement arising from the operation of new
sections 84 or 86.
New section 88(1) states that if an employer contravenes new
section 87, this is not an offence. However, a court may impose
a penalty of up to $10 000 on the employer.
Sub-section (2) provides that an application for an order may be
made by the employee, an organisation of which the employee is,
or is eligible to be, a member (at the request of the employee) or
the Minister.
Sub-section (3) states that a court that imposes a penalty under
sub-section (1) may order that all or part of the penalty be paid to
a particular person or organisation or into the Consolidated Fund.
Sub-section (4) states that an order imposing a penalty under
sub-section (1) is taken to be an order made by the court in a
civil proceeding.
Sub-section (5) defines "court" to mean the Industrial Division of
the Magistrates' Court for the purposes of section 88.
PART 9--EMPLOYMENT TERMINATED OR
PREJUDICED
New section 89 defines "court" to mean the Industrial Division
of the Magistrates' Court for the purposes of Part 9 of the
Principal Act.
New section 90 provides that an employer must not terminate or
threaten to terminate the employment of an employee or alter the
employee's position to the employee's prejudice because the
employee is entitled or seeks to exercise any entitlement or right
under the Principal Act.
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New section 91 provides for a reverse onus of proof in
proceedings for a contravention of section 90, if the employee
proves that he or she took long service leave, applied for long
service leave, or communicated to the employer an intent to take
leave.
New section 92 states that if an employer contravenes section 90
the contravention is not an offence. The court may, however,
impose a penalty of up to $10 000 on the employer.
An application for an order may be made by the employee or an
organisation of which the employee is or is eligible to be a
member, at the request of the employee.
Sub-section (3) provides that the court may order that part or all
of the penalty be paid to a particular person or organisation or
into the Consolidated Fund.
Sub-section (4) states that an order imposing a penalty under
sub-section (1) is taken to be an order made by the court in a
civil proceeding.
New section 93(1) states that if an employer is found to have
contravened section 90 the court may order the employer to
pay the employee a sum by way of reimbursement for the
remuneration lost by the employee and, subject to sub-
section (2), order that the employee be reinstated in his or her
former position or a similar position.
Sub-section (2) states that if the court considers it impracticable
to re-instate the employee it may order the employer to pay
compensation not exceeding 12 months remuneration.
Sub-section (3) provides that such an order is to be taken to be a
judgment debt due by the employer to the employee and may be
enforced in the court.
Sub-section (4) provides that the amount of remuneration that
would have been payable to an employee in respect of any period
that the employer fails to give effect to an order under sub-
section (1)(b) is recoverable as a debt due to the employee in any
court of competent jurisdiction.
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PART 4--MISCELLANEOUS
Part 4 of the Bill makes miscellaneous amendments to the Principal Act.
Clause 6 Sub-clause (1) amends the definition of "employment agreement"
in section 4 of the Principal Act as a consequence of the new
definition of "workplace agreement" in the Workplace Relations
Act 1996 of the Commonwealth.
Sub-clause (2) inserts a definition of "organisation" into section 4
of the Principal Act, which means--
· a trade union within the meaning of the Workplace
Relations Act 1996 of the Commonwealth; or
· an association of employees the principal purpose of
which is to protect and promote the interests of
employees in their employment.
Sub-clause (3) amends section 79(3) of the Principal Act to
amend the definition of what is taken not to be an "employment
agreement" for the purposes of that section, as a consequence of
the new definition of "workplace agreement" in the Workplace
Relations Act 1996 of the Commonwealth.
Sub-clauses (4) and (5) make the same amendment as that made
by sub-clause (3) to sections 159(2) and 160(8) of the Principal
Act, respectively.
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