Long Service Leave (Portable Schemes) Act 2009

This Act is the Long Service Leave (Portable Schemes) Act 2009.

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 in this Act.

For example, the signpost definition ‘reviewable decision, for part 9 (Notification and review of decisions)—see section 80.’ means that the term ‘reviewable decision’ is defined in that section for part 9.

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).

Note 2 Penalty units

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

Part 2 Key concepts

Each of the following is a covered industry:

the building and construction industry;

the services industry;

the community sector industry;

the security industry.

Note 1 Building and construction industry—see sch 1, s 1.1.

Note 2 Services industry—see sch 2, s 2.1.

Note 3 Community sector industry—see sch 3, s 3.1.

Note 4 Security industry—see sch 4, s 4.1.

A person is an employer, for a covered industry, if the person—

either—

for the hairdressing and beauty services industry or the accommodation and food services industry—conducts business in the ACT for the predominant purpose of engaging in the industry; or

for any other industry—engages, in any way and to any extent, in the industry in the ACT; and

either—

employs someone else (whether in the ACT or elsewhere) to carry out work of the kind usually done in the industry; or

is declared to be an employer for the industry under section 12 (Declarations by Minister—additional coverage of Act).

Note An employer for a covered industry must apply for registration under s 31.

Also, a person is an employer for a covered industry if—

the person employs or engages someone else (a worker) to carry out work in the industry for another person engaged in the industry in the ACT for a fee or reward; and

there is no contract to carry out the work between the worker and the person for whom the work is carried out.

Note This section does not make an employment agent the employer of those for whom the agency finds work if the workers are engaged directly by the person for whom the work is to be carried out.

However, the following are not employers:

the Territory;

the Commonwealth;

the Australian National University;

the University of Canberra;

for a stated covered industry—an entity prescribed in the covered industry schedule for the covered industry;

a person declared not to be an employer for the industry under section 13;

a person prescribed by regulation.

Note 1 Covered industry schedule—see the dictionary.

Note 2 Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

Each of the following is a worker for a covered industry:

an employee for the industry;

a voluntary member for the industry.

Note 1 An individual may be declared by the Minister to be an employee or a voluntary member for a covered industry (see s 12).

Note 2 An individual may be declared by the Minister not to be an employee or a voluntary member for a covered industry (see s 13).

An individual is an employee for a covered industry if the individual—

is—

employed by an employer for the industry (whether in the ACT or elsewhere); or

declared to be an employee for the industry under section 12; and

is not declared not to be an employee for the industry under section 13.

In this section:

employed includes employed as—

a full-time employee; or

a part-time employee; or

a casual employee; or

a person remunerated at piecework rates or completely or partly by commission; or

an apprentice.

Note For this Act, an individual declared to be an employee of a stated employer is taken to be employed by the employer (see s 12 (5)).

An individual is a voluntary member for a covered industry if—

the individual is—

a contractor; or

a working director; or

declared to be a voluntary member for the industry under section 12; and

the individual is not declared not to be a voluntary member for the industry under section 13.

In this section:

contractor means an individual (other than an employee) who carries out work in the industry for another person for fee or reward on the individual’s own account.

working director means a person who is both a director and an employee of a company.

In this Act:

work, in a covered industry—

means one of the following:

building and construction work;

services work;

community sector work;

security work;

work, or an activity, declared to be work under section 12; but

Note 1 Building and construction work—see sch 1, s 1.2.

Note 2 Services work—see sch 2, s 2.2.

Note 3 Community sector work—see sch 3, s 3.2.

Note 4 Security work—see sch 4, s 4.2.

includes work in a covered industry carried out outside the ACT only if—

if the work is carried out by an employee—the employer—

gives the authority a quarterly return under section 49 in relation to the work; and

pays the authority the levy payable by the employer under section 50 for the quarter; and

if the work is carried out by a voluntary member—the voluntary member—

gives the authority a quarterly return under section 54 in relation to the work; and

pays the authority the levy payable by the voluntary member under section 55 for the quarter; and

does not include work or an activity declared not to be work for the industry under section 13.

This section applies if the Minister is satisfied on reasonable grounds that the Act should apply to a person or work or an activity to which the Act does not apply.

The Minister may declare, for this Act—

a person to be an employer for a covered industry; or

a person to be an employee, or an employee of a stated employer, for a covered industry; or

a person to be a voluntary member for a covered industry; or

work, or an activity, to be work in a covered industry.

However, the Minister may only make a declaration that is consistent with the objects of the Act.

A declaration must state the following:

the person or work to which the declaration applies;

any conditions of the declaration.

Note Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

A person declared to be an employee of a stated employer is taken to be employed by the employer.

A declaration is a disallowable instrument.

This section applies if the Minister is satisfied on reasonable grounds that the Act should not apply to a person or work or an activity to which the Act applies.

The Minister may declare, for this Act—

a person not to be an employer for a covered industry; or

a person not to be an employee, or an employee of a stated employer, for a covered industry; or

a person not to be a voluntary member for a covered industry; or

work, or an activity, not to be work in a covered industry.

However, the Minister may only make a declaration that is consistent with the objects of the Act.

A declaration must state the following:

the person or work to which the declaration applies;

the period of the declaration;

any conditions of the declaration.

Note Power to make a statutory instrument includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

A declaration is a disallowable instrument.