Expiry—pt 12
115 Expiry—pt 12
This part expires 5 years after the commencement day.
A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).
Schedule 1 Long service leave payments—building and construction industry
(see s 6)
1.1 What is the building and construction industry?
The building and construction industry is—
in relation to the ACT—the industry of constructing, reconstructing, renovating, repairing, altering, demolishing or maintaining the following:
buildings, fences or swimming pools;
roadworks, light rail and other railways, airfields or other works for the carriage of people, animals or vehicles;
breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of a harbour, river or watercourse for the purpose of navigation;
works for the storage or supply of water or the irrigation of land;
works for the carriage, treatment or disposal of sewage or the effluent from any premises;
bridges, viaducts, aqueducts, tunnels or pipelines;
chimneystacks, cooling towers, drilling rigs, gas holders or silos;
structures, fixtures or works for use in any building or works mentioned in subparagraphs (i) to (vii);
navigational lights, beacons or markers;
works for the drainage of land;
works for the storage of liquids (other than water) or gases;
works for the transmission of electric power or wireless or telegraphic communications; and
in relation to a reciprocating State—an industry of a kind mentioned in paragraph (a) to which a corresponding law of the State applies.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
Also, the building and construction industry, in relation to the ACT, includes the following undertaken in relation to an activity mentioned in subsection (1) (a):
pile driving and site preparation;
installing data cabling or security or electronic communication systems;
laying floor coverings;
hard landscaping;
building or construction work undertaken as part of training with a registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cwlth), section 3.
In this section:
light rail—see the Road Transport (General) Act 1999, dictionary.
1.2 What is building and construction work?
In this Act:
building and construction work means—
work in the building and construction industry; or
direct supervision of a worker carrying out work in the building and construction industry.
The Minister may declare work or an activity to be building and construction work (see s 12 (2) (d)) or to not be building and construction work (see s 13 (2) (d)).
In this section:
direct supervision, of a person, means the oversight by the supervising person of the work of the person by—
directing, demonstrating, monitoring and checking the person’s work in a way that is appropriate to the person’s level of competency; and
ensuring the person’s capacity to respond in an emergency situation.
1.3 Recognised service—building and construction industry
In this schedule:
recognised service, for a registered worker in the building and construction industry, means the total number of days of service credit for all of the service periods of the worker less any days of service credit that the worker—
has been granted long service leave for; or
has received a payment for instead of long service leave.
A registered worker for the building and construction industry is taken to have completed a year of recognised service for each 220 days of recognised service.
1.4 Service credit—building and construction industry—s 64
A registered worker for the building and construction industry is to be credited in the workers register with 1 day of service for each day that the worker carries out building and construction work in each service period on or after the worker’s registration day.
Prior service is also credited in the workers register in accordance with, for employees, s 47, and for voluntary members, s 48.
However, the registrar must not enter more than 220 days of service in the workers register for the worker for the financial year.
1.4A Service period—building and construction industry
A service period for a person who is a registered worker for the building and construction industry is a continuous period—
beginning on the day when the person becomes a worker for the industry; and
ending on the day when the person stops being a worker for the industry.
For subsection (1), a person stops being an employee for an employer for the industry at the end of a quarter if—
if the employee was an employee of only 1 employer for the industry in the quarter—the employer’s return under section 49 for the following quarter shows no ordinary remuneration for the employee; or
if the employee was an employee of 2 or more employers for the industry in the quarter—none of the employers’ returns under section 49 for the following quarter shows ordinary remuneration for the employee.
Despite subsection (1), a registered worker’s service period is not taken to end if a person stops being a worker because—
of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1951; or
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
if the worker is a voluntary member—the voluntary member’s engagement by the employer is ended to ensure that the voluntary member does not take long service leave while engaged by the employer.
1.5 Long service leave formula—building and construction industry
The long service leave formula for the building and construction industry is—
for service before 20 December 1996—
for service on or after 20 December 1996—
RS means the registered worker’s number of days recognised service.
W means the number of weeks long service leave held by the registered worker.
1.6 Amount of leave—building and construction industry
A registered worker for the building and construction industry who has 10 years or more recognised service is entitled to the number of days of workers long service leave worked out in accordance with the long service leave formula for the building and construction industry.
A registered worker for the building and construction industry who has 10 years or more recognised service is entitled to additional long service leave worked out in accordance with the long service leave formula for the building and construction industry if the worker—
becomes entitled to long service leave under this Act for work done in the industry; and
is credited in the workers register with an additional period of service in the industry commencing on the date on which the worker became entitled to the long service leave.
1.7 Grant of leave by employers—building and construction industry
The employer of a registered employee for the building and construction industry commits an offence if—
the employee’s long service leave accrues; and
the employer does not grant the employee the long service leave before the end of the prescribed period.
Maximum penalty: 50 penalty units.
Long service leave must not be granted for a period of less than 2 weeks.
The employer of a registered employee for the building and construction industry commits an offence if—
the employer has granted the employee long service leave; and
the employer does not give the employee a written statement of the day when the long service leave starts and ends—
not later than 2 months after the day when the long service leave starts; or
if the employer and employee agree on a shorter period—before the start of the period agreed.
Maximum penalty: 50 penalty units.
An offence against this section is a strict liability offence.
In this section:
prescribed period, for long service leave accrued by a registered employee for the building and construction industry of an employer, means—
6 months after the day the leave accrues; or
if the governing board has allowed, on application by the employer or the employee, a period longer than 6 months—the period allowed by the board; or
if the employer and employee agree on a period longer than 6 months—the period agreed.
1.8 Entitlement to payment instead of leave—building and construction industry
This section applies to a registered worker for the building and construction industry who has at least 7 years recognised service if—
the worker has permanently left the industry; and
20 weeks have passed since the day the worker permanently left the industry; and
the worker has not been credited with service in the workers register for any of the days in the 20-week period.
Also, this section applies to a registered worker for the building and construction industry if the worker has 5 years recognised service and any of the following apply to the worker:
the worker has left the industry because of total incapacity;
the worker has reached the prescribed retiring age;
the worker has died.
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 amount of long service leave credited to the worker in the workers register.
In this section:
prescribed retiring age means—
in relation to 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
in any other case—55 years.
1.9 Payment for leave—building and construction industry
A registered employee for the building and construction industry who has been granted long service leave under section 1.7, or a registered voluntary member for the industry who is entitled to long service leave, may apply to the authority for payment for the leave.
The authority must pay to the applicant the amount payable under section 1.11 (How are leave payments worked out for the building and construction industry?) if the registrar is satisfied that—
the applicant is entitled to long service leave under this Act for work done in the building and construction industry; and
the applicant has been granted leave by the applicant’s employer.
The authority must pay an applicant any amount payable under subsection (2)—
if agreed between the worker and the authority—in the 14-day period before the day the long service leave starts; or
in any other case—within 21 days after the day the worker’s application was made.
1.10 Payment instead of leave—building and construction industry
If a registered worker for the building and construction industry is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for the payment.
An application by a registered employee for the building and construction industry on the ground that the employee has ceased work in the building and construction industry because of total incapacity must be accompanied by a certificate of a doctor certifying that the employee is totally incapacitated for employment in the industry.
The governing board may require an applicant mentioned in subsection (2) to submit himself or herself to a medical examination by a doctor chosen by the board for that purpose from a panel of 3 doctors nominated by the Australian Capital Territory Branch of the Australian Medical Association.
All fees or charges payable for a medical examination under subsection (3) are to be paid by the authority.
If an applicant fails, without reasonable excuse, to comply with a requirement under subsection (3), the governing board may refuse the application.
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 to the applicant the amount payable under section 1.11 (How are leave payments worked out for the building and construction industry?).
1.11 How are leave payments worked out for the building and construction industry?
For section 1.9 (Payment for leave—building and construction industry) and section 1.10 (Payment instead of leave—building and construction industry), the amount payable to a registered worker for, or instead of, long service leave is—
for any part of the entitlement to long service leave accrued as an employee—the amount worked out in accordance with section 1.12; and
for any part of the entitlement to long service leave accrued as a voluntary member—the amount worked out in accordance with section 1.13.
For subsection (1)—
long service leave must be taken in the reverse order in which it accrued; and
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.
Example
John has 10 years of service in the building and construction industry, giving him an entitlement to 13 weeks long service leave. He first worked in the industry as a registered employee and accrued 7 weeks of the entitlement in that capacity. John then worked as a registered voluntary member and accrued 6 weeks of the entitlement in that capacity.
John decides to take 9 weeks long service leave. The payment for the leave is the total of the following amounts:
the amount calculated under section 1.12 where ‘D’ is 1185 (ie it took 1185 days of service as a registered employee to accrue the first 7 weeks of his long service leave entitlement);
the amount calculated under section 1.13 which is the total of the amounts paid to the authority under section 56 for his first 1.54 years work as a registered voluntary member (ie it took 338 days of service as a registered voluntary member to accrue the next 2 weeks of his long service leave entitlement) and the interest under section 1.13 on those amounts.
1.12 Leave payments for service as registered employee—building and construction industry
For section 1.11, the amount payable to a registered worker for long service leave for service accrued as a registered employee for the building and construction industry is the amount worked out as follows:
In this section:
D means the number of days of service credited to the registered worker in the workers register for service as an employee and to which the payment relates.
defined fraction means—
in relation to service that occurred before 20 December 1996—0.8667; and
in relation to service that occurred on or after 20 December 1996—1.3.
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
R is—
if the registered worker is receiving compensation under the Workers Compensation Act 1951—the weekly average of the ordinary remuneration received by the worker during the 4 quarters before the injury to which the compensation relates happened; or
in any other case—the highest of the weekly averages of the ordinary remuneration received by the registered worker during each of the following periods that applies to the worker:
the most recent 2 quarters of service as a registered employee before the designated day;
the most recent 4 quarters of service as a registered employee before the designated day.
1.13 Leave payments for service as registered voluntary member—building and construction industry
For section 1.11 (How are leave payments worked out for the building and construction industry?), the amount payable to a registered worker for the building and construction industry for long service leave for service accrued as a voluntary member is the total of the following for the service:
amounts paid by the worker to the authority under section 56 (Determination of levy—voluntary members);
interest at the determined rate worked out from the date of receipt of each amount paid under section 56 until the designated day for the leave.
The governing board must determine an interim rate of interest from time to time prior to the determination of the rate under subsection (1).
The determined rate of interest must be determined at the end of each financial year for the previous financial year, and is—
if the construction industry scheme funds invested made a return—75% of the rate of the return for the financial year in which the determination is made; or
if the fund did not make a return or made a loss—nil.
In this section:
designated day—see section 1.12.
1.14 Payment by authority on reciprocal authority’s behalf—building and construction industry
This section applies to a registered worker for the building and construction industry who has a long service leave entitlement under this Act and a corresponding law.
The worker may apply to the authority for payment of a long service leave entitlement worked out in accordance with the corresponding law.
The authority must pay the worker the amount of the entitlement worked out in the way stated in the corresponding law if the authority is authorised by the reciprocal authority to make the payment.
1.15 Payments by reciprocal authority on authority’s behalf—building and construction industry
This section applies if, under a corresponding law, a reciprocal authority pays to a person an amount that, but for the payment, would have been payable for a long service leave entitlement under this Act for work done in the building and construction industry.
If the authority is notified about the payment and is satisfied the payment was properly made, the authority must reimburse the reciprocal authority the amount worked out as follows:
If the authority makes a reimbursement under subsection (2), the obligation of the authority to make the payment to the person for the entitlement is discharged.
In subsection (2):
D means the number of days of service credited to the person in the workers register for service as an employee and to which the payment relates.
defined fraction means—
in relation to service that occurred before 20 December 1996—0.8667; and
in relation to service that occurred on or after 20 December 1996—1.3.
R is the amount decided by the reciprocal authority as the weekly amount payable to the person for the service credited to the person in the State.
1.17 Records of payments and service—building and construction industry
This section applies if the authority—
pays an amount to a registered worker for the building and construction industry under section 1.9 (Payment for leave—building and construction industry) or section 1.10 (Payment instead of leave—building and construction industry); or
reimburses a reciprocal authority under section 1.15 (2) (Payments by reciprocal authority on authority’s behalf—building and construction industry) for an amount paid to a registered worker for the industry.
The authority may delete from the workers register the details relating to the period of service for which the worker has been paid.
However, the authority must keep another record of—
the period of service; and
the amount paid to the worker for long service leave or instead of long service leave; and
the period of long service leave (if any) granted to or taken by the worker.
1.18 Public holidays not to count as leave—building and construction industry
This section applies if a public holiday falls during a period of long service leave taken by a registered employee for the building and construction industry.
The period of long service leave is increased by 1 day for each public holiday.
Schedule 2 Long service leave payments—services industry (see s 6)
2.1 What is the services industry?
The services industry is—
in relation to the ACT—any of the following industries:
the industry in which employers provide cleaning work to other people through the provision of workers’ services (the contract cleaning services industry);
the industry that provides hairdressing or beauty services within the meaning of the ANZSIC, Division S, Class 9511, Hairdressing and Beauty Services (the hairdressing and beauty services industry);
the industry that provides accommodation, food, beverage and hospitality services within the meaning of the ANZSIC, Division H, Accommodation and Food Services (the accommodation and food services industry); and
in relation to a reciprocating State—an industry of a kind mentioned in paragraph (a) to which a corresponding law of the State applies.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
In this section:
ANZSIC means the Australian and New Zealand Standard Industrial Classification 2006 as in force from time to time.
The ANZSIC is available free of charge at www.abs.gov.au.
2.2 What is services work?
In this Act:
services work means—
in relation to the contract cleaning services industry—
work that has, as its only or main component, bringing premises into, or maintaining premises in, a clean condition; or
the collection or sorting of waste at, or for, an identified waste management facility if the employer providing the work through the provision of services does so under a contract with the Territory; and
in relation to the hairdressing and beauty services industry—providing hairdressing services or providing beauty services (including nail care services, facials or applying make-up); and
in relation to the accommodation and food services industry—providing short-term accommodation for visitors, or meals, snacks, and beverages for consumption by customers (whether at the provider’s principal place of business or elsewhere).
The Minister may declare work or an activity to be services work (see s 12 (2) (d)) or to not be services work (see s 13 (2) (d)).
For s (1) (b), medical skin care services such as cosmetic surgery and dermatology services and medical or surgical hair replacement or transplant services are excluded from the ANZSIC, Division S, Class 9511.
For s (1) (c), gambling institutions (casinos), amusement and recreation parks, long-term (residential) caravan parks, theatre restaurants, sporting clubs and other recreation or entertainment facilities providing food, beverage and accommodation services are excluded from the ANZSIC, Division H.
However, in relation to the accommodation and food services industry, services work does not include providing professional, scientific and technical services within the meaning of the ANZSIC, Division M, Professional, Scientific and Technical Services.
The Minister may determine that a facility is an identified waste management facility for subsection (1), definition of services work, paragraph (a) (ii).
A determination is a notifiable instrument.
In this section:
ANZSIC—see section 2.1 (2).
contract cleaning services industry—see section 2.1 (1) (a) (i).
2.3 Recognised service—services industry
In this schedule:
recognised service, for a registered worker in the services industry, means the total number of days of service credit for all of the service periods of the worker less any days of service credit that the worker—
has been granted long service leave for; or
has received a payment for instead of long service leave.
A registered worker for the services industry is taken to have completed a year of recognised service for each 365 days of recognised service.
2.4 Service credit—services industry—s 64
A registered worker for the services industry is to be credited in the workers register with 1 day of service for each day (including a day when the worker does not carry out services work) in each service period of the worker on or after the worker’s registration day.
Example
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 service period for the worker when the worker does not carry out services work.
Prior service is also credited in the workers register in accordance with, for employees, s 47, and for voluntary members, s 48.
However, the registrar must not enter more than 365 days of service in the workers register for the worker for the financial year.
2.4A Service period—services industry
A service period for a person who is a registered worker for the services industry is a continuous period—
beginning on the day when the person becomes a worker for the industry; and
ending on the day when the person stops being a worker for the industry.
For subsection (1), a person stops being an employee for an employer for the industry at the end of a quarter if—
if the employee was an employee of only 1 employer for the industry in the quarter—the employer’s return under section 49 for the following quarter shows no ordinary remuneration for the employee; or
if the employee was an employee of 2 or more employers for the industry in the quarter—none of the employers’ returns under section 49 for the following quarter shows ordinary remuneration for the employee.
Despite subsection (1), a registered worker’s service period is not taken to end if a person stops being a worker because—
of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1951; or
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
if the worker is a voluntary member—the voluntary member’s engagement by the employer is ended to ensure that the voluntary member does not take long service leave while engaged by the employer.
2.5 Long service leave formula—services industry
The following is the long service leave formula for the services industry:
RS means the registered worker’s number of days recognised service.
W means the number of weeks long service leave held by the registered worker.
2.6 Amount of leave—services industry
A registered worker for the services industry who has 7 years or more recognised service is entitled to the number of days of workers long service leave worked out in accordance with the long service leave formula for the services industry.
A registered worker for the services industry is entitled to long service leave for additional days of service worked out in accordance with the long service leave formula if the worker—
becomes entitled to long service leave under this Act; and
is credited with the additional days in the workers register after becoming entitled to long service leave.
2.7 Grant of leave by employers—services industry
The employer of a registered employee for the services industry commits an offence if—
the employee’s long service leave accrues; and
the employer does not grant the employee the long service leave before the end of the prescribed period.
Maximum penalty: 50 penalty units.
Long service leave must not be granted for a period of less than 2 weeks.
The employer of a registered employee for the services industry commits an offence if—
the employer has granted the employee long service leave; and
the employer does not give the employee a written statement of the day when the long service leave starts and ends—
2 months before the day when the long service leave starts; or
if the employer and employee agree on a shorter period—before the start of the period agreed.
Maximum penalty: 50 penalty units.
An offence against this section is a strict liability offence.
In this section:
prescribed period, for long service leave accrued by a registered employee for the services industry of an employer, means—
6 months after the day the leave accrues; or
if the governing board has allowed, on application by the employer or the employee, a period longer than 6 months—the period allowed by the board; or
if the employer and employee agree on a period longer than 6 months—the period agreed.
2.8 Entitlement to payment instead of leave—services industry
This section applies to a registered worker for the services industry who has 5 years recognised service if—
the worker has permanently left the industry; and
20 weeks have passed since the day the worker permanently left the industry; and
the worker has not been credited with service in the workers register for any of the days in the 20-week period.
Also, this section applies to a registered worker for the services industry if the worker has 5 years recognised service and any of the following apply to the worker:
the worker has left the industry because of total incapacity;
the worker has reached the prescribed retiring age;
the worker has died.
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.
In this section:
prescribed retiring age means—
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
in any other case—55 years.
2.9 Payments for leave—services industry
A registered employee for the services industry who has been granted long service leave under section 2.7, or a registered voluntary member who for the industry is entitled to long service leave, may apply to the authority for payment for the leave.
The authority must pay to the applicant the amount payable under section 2.11 (How are leave payments worked out for the services industry?) if the governing board is satisfied that—
the applicant is entitled to long service leave under this Act for work done in the services industry; and
the applicant has been granted leave by the applicant’s employer.
The authority must pay an applicant any amount payable under subsection (2)—
if agreed between the worker and the authority—in the 14-day period before the day the long service leave starts; or
in any other case—within 21 days after the day the worker’s application was made.
2.10 Payments instead of leave—services industry
If a registered worker for the services industry is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for the payment.
An application by a registered employee for the services industry on the ground that the employee has ceased work in the services industry because of total incapacity must be accompanied by a certificate of a doctor certifying that the employee is totally incapacitated for employment in the industry.
The governing board may require an applicant mentioned in subsection (2) to submit himself or herself to a medical examination by a doctor chosen by the board for that purpose from a panel of 3 doctors nominated by the Australian Capital Territory Branch of the Australian Medical Association.
All fees or charges payable for a medical examination under subsection (3) are to be paid by the authority.
If an applicant fails, without reasonable excuse, to comply with a requirement under subsection (3), the governing board may refuse the application.
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 to the applicant the amount payable under section 2.11.
2.11 How are leave payments worked out for the services industry?
For section 2.9 (Payments for leave—services industry) and section 2.10 (Payments instead of leave—services industry), the amount payable to a registered worker for, or instead of, long service leave is—
for any part of the entitlement to long service leave accrued as an employee—the amount worked out in accordance with section 2.12; and
for any part of the entitlement to long service leave accrued as a voluntary member—the amount worked out in accordance with section 2.13.
For subsection (1)—
long service leave must be taken in the reverse order in which it accrued; and
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.
Example
Pat has 10 years of service in the services industry giving Pat an entitlement to 8.667 weeks long service leave. Pat first worked in the industry as a registered employee and accrued 5 weeks of the entitlement in that capacity. Pat then worked as a registered voluntary member and accrued 3.667 weeks of the entitlement in that capacity.
Pat decides to take 7 weeks long service leave. The payment for the leave is the total of the following amounts:
the amount calculated under s 2.12 where ‘D’ is 2106 (ie it took 2106 days of service as a registered employee to accrue the first 5 weeks of long service leave entitlement);
the amount calculated under s 2.13, which is the total of the amounts paid to the authority under s 56 for 842 days (2.31 years) of service as a registered voluntary member (ie it took 842 days of service as a registered voluntary member to accrue the next 2 weeks of long service leave entitlement) and the interest under s 2.13 on those amounts.
2.12 Leave payments for service as registered employee—services industry
For section 2.11, the amount payable to a registered worker for long service leave for service accrued as a registered employee for the services industry is the amount worked out as follows:
In this section:
D means the number of days of service credited to the registered worker in the workers register to which the payment relates.
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
R is—
if the registered worker is receiving compensation under the Workers Compensation Act 1951—the weekly average of the ordinary remuneration received by the worker during the 4 quarters before the injury to which the compensation relates happened; or
in any other case—the highest of the weekly averages of the ordinary remuneration received by the registered worker during each of the following periods that applies to the worker:
the most recent 2 quarters of service as a registered employee before the designated day;
the most recent 4 quarters of service as a registered employee before the designated day;
the most recent 20 quarters of service as a registered worker before the designated day;
the most recent 40 quarters of service as a registered worker before the designated day.
Example—R, par (b)
Henry has worked in the services industry for 7 years. The periods in par (b) (i), (ii) and (iii) apply to Henry because he has completed more than 20 quarters (or 5 years), but less than 40 quarters (or 10 years), relevant service.
Henry’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.
2.13 Leave payments for service as registered voluntary member—services industry
For section 2.11 (How are leave payments worked out for the services industry?), the amount payable to a registered worker for the services industry for long service leave for service accrued as a registered voluntary member is the total of the following for the service:
amounts paid by the worker to the authority under section 56 (Determination of levy—voluntary members);
interest at the determined rate worked out from the date of receipt of each amount paid under section 56 until the designated day for the leave.
The governing board must determine an interim rate of interest from time to time before the determination of the rate under subsection (1).
The determined rate of interest must be determined at the end of each financial year for the previous financial year, and is—
if the services industry scheme funds invested made a return—75% of the rate of the return for the financial year in which the determination is made; or
if the fund did not make a return or made a loss—nil.
In this section:
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
2.14 Payments by authority on reciprocal authority’s behalf—services industry
This section applies to a registered worker for the services industry who has a long service leave entitlement under this Act and a corresponding law.
The worker may apply to the authority for payment of a long service leave entitlement worked out in accordance with the corresponding law.
The authority must pay the worker the amount of the entitlement worked out in the way stated in the corresponding law if the authority is authorised by the reciprocal authority to make the payment.
2.15 Payments by reciprocal authority on authority’s behalf—services industry
This section applies if, under a corresponding law, a reciprocal authority pays to a person an amount that, but for the payment, would have been payable for a long service leave entitlement under this Act for work done in the services industry.
If the authority is notified about the payment and is satisfied the payment was properly made, the authority must reimburse the reciprocal authority the amount worked out as follows:
If the authority makes a reimbursement under subsection (2), the obligation of the authority to make the payment to the person for the entitlement is discharged.
In subsection (2):
D means the number of days of service credited to the registered employee in the workers register and to which the payment relates.
R is the amount decided by the reciprocal authority as the weekly amount payable to the worker for the service credited to the worker in the State.
2.17 Records of payments and service—services industry
This section applies if the authority—
pays an amount to a registered worker for the services industry under section 2.9 (Payments for leave—services industry) or section 2.10 (Payments instead of leave—services industry); or
reimburses a reciprocal authority under section 2.15 (Payments by reciprocal authority on authority’s behalf—services industry) for an amount paid to a registered worker.
The authority must delete from the workers register the details relating to the service period for which the worker has been paid.
However, the authority must keep another record of—
the period of the service; and
the amount paid to the worker for long service leave or instead of long service leave; and
the period of long service leave (if any) granted to or taken by the worker.
2.18 Public holidays not to count as leave—services industry
This section applies if a public holiday falls during a period of long service leave taken by a registered worker for the services industry.
The period of long service leave is increased by 1 day for each public holiday.
Schedule 3 Long service leave payments—community sector industry
3.1 What is the community sector industry?
The community sector industry is—
in relation to the ACT, any of the following:
the industry of providing education and care services;
the industry of providing residential aged care services;
the industry of providing community aged care services;
the industry of providing employment placement services for disabled people;
the industry of providing the following residential care services:
care accommodation or homes for disadvantaged people where nursing or medical care is not provided as a major service;
residential corrective services for young offenders;
the industry of providing community service advocacy services;
the industry of providing non-residential care welfare services (including fund-raising services for welfare services) not included in subparagraphs (i) to (vi); and
in relation to a reciprocating State—an industry of a kind mentioned in paragraph (a) to which a corresponding law of the State applies.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
The definition of community sector industry was broadened to include residential aged care services and community aged care services with effect from 1 July 2016.
In this section:
education and care service means an approved education and care service under the Education and Care Services National Law (ACT), section 5 (1).
The Education and Care Services National Law (ACT) Act 2011, s 6 applies the Education and Care Services National Law set out in the Education and Care Services National Law Act 2010 (Vic), schedule as if it were an ACT law called the Education and Care Services National Law (ACT).
3.2 What is community sector work?
In this Act:
community sector work means work carried out in the community sector industry.
The Minister may declare work or an activity to be community sector work (see s 12 (2) (d)) or to not be community sector work (see s 13 (2) (d)).
3.3 Recognised service—community sector industry
In this schedule:
recognised service, for a registered worker in the community sector industry, means the total number of days of service credit for all of the service periods of the worker less any days of service credit that the worker—
has been granted long service leave for; or
has received a payment for instead of long service leave.
A registered worker for the community sector industry is taken to have completed a year of recognised service for each 365 days of recognised service.
3.4 Court or tribunal—not employer
A court or tribunal is not an employer for the community sector industry.
A covered industry schedule may prescribe an entity not to be an employer for the covered industry—see s 7 (3).
3.5 Service credit—community sector industry—s 64
A registered worker for the community sector industry is to be credited in the workers register with 1 day of service for each day (including a day when the worker does not carry out community sector work) in each service period of the worker on or after the worker’s registration day.
Example
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 service period for the worker when the worker does not carry out community sector work.
Prior service is also credited in the workers register in accordance with, for employees, s 47, and for voluntary members, s 48.
However, the registrar must not enter more than 365 days of service in the workers register for the worker for the financial year.
3.5A Service period—community sector industry
A service period for a person who is a registered worker for the community sector industry is a continuous period—
beginning on the day when the person becomes a worker for the industry; and
ending on the day when the person stops being a worker for the industry.
For subsection (1), a person stops being an employee for an employer for the industry at the end of a quarter if—
if the employee was an employee of only 1 employer for the industry in the quarter—the employer’s return under section 49 for the following quarter shows no ordinary remuneration for the employee; or
if the employee was an employee of 2 or more employers for the industry in the quarter—none of the employers’ returns under section 49 for the following quarter shows ordinary remuneration for the employee.
Despite subsection (1), a registered worker’s service period is not taken to end if a person stops being a worker because—
of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1951; or
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
if the worker is a voluntary member—the voluntary member’s engagement by the employer is ended to ensure that the voluntary member does not take long service leave while engaged by the employer.
3.6 Long service leave formula—community sector industry
The following is the long service leave formula for the community sector industry:
RS means the registered worker’s number of days recognised service.
W means the number of weeks long service leave held by the registered worker.
3.7 Amount of leave—community sector industry
A registered worker for the community sector industry who has 5 years or more of recognised service is entitled to the number of days of workers long service leave worked out in accordance with the long service leave formula for the community sector industry.
A registered worker for the community sector industry is entitled to long service leave for additional days of service worked out in accordance with the long service leave formula if the worker—
becomes entitled to long service leave under this Act; and
is credited with the additional days in the workers register after becoming entitled to long service leave.
3.8 Grant of leave by employers—community sector industry
The employer of a registered employee for the community sector industry commits an offence if—
the employee’s long service leave accrues; and
the employer does not grant the employee the long service leave before the end of the prescribed period.
Maximum penalty: 50 penalty units.
Long service leave must not be granted for a period of less than 2 weeks.
The employer of a registered employee for the community sector industry commits an offence if—
the employer has granted the employee long service leave; and
the employer does not give the employee a written statement of the day when the long service leave starts and ends—
2 months before the day when the long service leave starts; or
if the employer and employee agree on a shorter period—before the start of the period agreed.
Maximum penalty: 50 penalty units.
An offence against this section is a strict liability offence.
In this section:
prescribed period, for long service leave accrued by a registered employee for the community sector industry of an employer, means—
6 months after the day the leave accrues; or
if the governing board has allowed, on application by the employer or the employee, a period longer than 6 months—the period allowed by the board; or
if the employer and employee agree on a period longer than 6 months—the period agreed.
3.9 Entitlement to payment instead of leave—community sector industry
This section applies to a registered worker for the community sector industry if the worker has 5 years recognised service and—
all of the following apply:
the worker has permanently left the industry;
20 weeks have passed since the day the worker permanently left the industry;
the worker has not been credited with service in the workers register for any of the days in the 20-week period; or
any of the following apply:
the worker has left the industry because of total incapacity;
the worker has reached the prescribed retiring age;
the worker has died.
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.
In this section:
prescribed retiring age means—
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
in any other case—55 years.
3.10 Payments for leave—community sector industry
A registered employee for the community sector industry who has been granted long service leave under section 3.8, or a registered voluntary member who for the industry is entitled to long service leave, may apply to the authority for payment for the leave.
The authority must pay to the applicant the amount payable under section 3.12 (How are leave payments worked out for the community sector industry?) if the registrar is satisfied that—
the applicant is entitled to long service leave under this Act for work done in the community sector industry; and
the applicant has been granted leave by the applicant’s employer.
The authority must pay an applicant any amount payable under subsection (2)—
if agreed between the worker and the authority—in the 14-day period before the day the long service leave starts; or
in any other case—within 21 days after the day the worker’s application was made.
3.11 Payments instead of leave—community sector industry
If a registered worker for the community sector industry is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for the payment.
An application by a registered employee for the community sector industry on the ground that the employee has ceased work in the community sector industry because of total incapacity must be accompanied by a certificate of a doctor certifying that the employee is totally incapacitated for employment in the industry.
The governing board may require an applicant mentioned in subsection (2) to submit himself or herself to a medical examination by a doctor chosen by the board for that purpose from a panel of 3 doctors nominated by the Australian Capital Territory Branch of the Australian Medical Association.
All fees or charges payable for a medical examination under subsection (3) are to be paid by the authority.
If an applicant fails, without reasonable excuse, to comply with a requirement under subsection (3), the governing board may refuse the application.
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 to the applicant the amount payable under section 3.12.
3.12 How are leave payments worked out for the community sector industry?
For section 3.10 (Payments for leave—community sector industry) and section 3.11 (Payments instead of leave—community sector industry), the amount payable to a registered worker for, or instead of, long service leave is—
for any part of the entitlement to long service leave accrued as an employee—the amount worked out in accordance with section 3.13; and
for any part of the entitlement to long service leave accrued as a voluntary member—the amount worked out in accordance with section 3.14.
For subsection (1)—
long service leave must be taken in the reverse order in which it accrued; and
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.
Example
Alex has 5 years of service in the community sector industry giving Alex an entitlement to 4.335 weeks long service leave. Alex first worked in the industry as a registered employee and accrued 2 weeks of the entitlement in that capacity. Alex then worked as a registered voluntary member and accrued 2.335 weeks of the entitlement in that capacity.
Alex decides to take 4.335 weeks long service leave. The payment for the leave is the total of the following amounts:
the amount calculated under s 3.13 where ‘D’ is 842 (ie it took 842 days of service as a registered employee to accrue the first 2 weeks of long service leave entitlement);
the amount calculated under s 3.14, which is the total of the amounts paid to the authority under s 56 for 983 days (2.69 years) of service as a registered voluntary member (ie it took 983 days of service as a registered voluntary member to accrue the next 2.335 weeks of long service leave entitlement) and the interest under s 3.14 on those amounts.
3.13 Leave payments for service as registered employee—community sector industry
For section 3.12, the amount payable to a registered worker for long service leave for service accrued as a registered employee for the community sector industry is the amount worked out as follows:
In this section:
D means the number of days of service credited to the registered worker in the workers register to which the payment relates.
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
R is—
if the registered worker is receiving compensation under the Workers Compensation Act 1951—the weekly average of the ordinary remuneration received by the worker during the 4 quarters before the injury to which the compensation relates happened; or
in any other case—the highest of the weekly averages of the ordinary remuneration received by the registered worker during each of the following periods that applies to the worker:
the most recent 2 quarters of service as a registered employee before the designated day;
the most recent 4 quarters of service as a registered employee before the designated day;
the most recent 20 quarters of service as a registered worker before the designated day.
Example—R, par (b)
Harry has worked in the community sector industry for 5 years. The periods in par (b) (i), (ii) and (iii) apply to Harry because he has completed more than 20 quarters (or 5 years) relevant service.
Harry’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.
3.14 Leave payments for service as registered voluntary member—community sector industry
For section 3.12 (How are leave payments worked out for the community sector industry?), the amount payable to a registered worker for the community sector industry for long service leave for service accrued as a registered voluntary member is the total of the following for the service:
amounts paid by the worker to the authority under section 56 (Determination of levy—voluntary members);
interest at the determined rate worked out from the date of receipt of each amount paid under section 56 until the designated day for the leave.
The governing board must determine an interim rate of interest from time to time before the determination of the rate under subsection (1).
The determined rate of interest must be determined at the end of each financial year for the previous financial year, and is—
if the community sector industry scheme funds invested made a return—75% of the rate of the return for the financial year in which the determination is made; or
if the fund did not make a return or made a loss—nil.
In this section:
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
3.15 Payments by authority on reciprocal authority’s behalf—community sector industry
This section applies to a registered worker for the community sector industry who has a long service leave entitlement under this Act and a corresponding law.
The worker may apply to the authority for payment of a long service leave entitlement worked out in accordance with the corresponding law.
The authority must pay the worker the amount of the entitlement worked out in the way stated in the corresponding law if the authority is authorised by the reciprocal authority to make the payment.
3.16 Payments by reciprocal authority on authority’s behalf—community sector industry
This section applies if, under a corresponding law, a reciprocal authority pays to a person an amount that, but for the payment, would have been payable for a long service leave entitlement under this Act for work done in the community sector industry.
If the authority is notified about the payment and is satisfied the payment was properly made, the authority must reimburse the reciprocal authority the amount worked out as follows:
If the authority makes a reimbursement under subsection (2), the obligation of the authority to make the payment to the person for the entitlement is discharged.
In subsection (2):
D means the number of days of service credited to the registered employee in the workers register and to which the payment relates.
R is the amount decided by the reciprocal authority as the weekly amount payable to the worker for the service credited to the worker in the State.
3.18 Records of payments and service—community sector industry
This section applies if the authority—
pays an amount to a registered worker for the community sector industry under section 3.10 (Payments for leave—community sector industry) or section 3.11 (Payments instead of leave—community sector industry); or
reimburses a reciprocal authority under section 3.16 (Payments by reciprocal authority on authority’s behalf—community sector industry) for an amount paid to a registered worker.
The authority must delete from the workers register the details relating to the service period for which the worker has been paid.
However, the authority must keep another record of—
the period of the service; and
the amount paid to the worker for long service leave or instead of long service leave; and
the period of long service leave (if any) granted to or taken by the worker.
3.19 Public holidays etc not to count as leave—community sector industry
This section applies if a public holiday or industry holiday falls during a period of long service leave taken by a registered worker for the community industry.
The period of long service leave is increased by 1 day for each public holiday and industry holiday.
In this section:
industry holiday means a day that is a holiday for people employed in the community sector industry under a fair work instrument made under the Fair Work Act 2009 (Cwlth).
Schedule 4 Long service leave payments—security industry (see s 6)
4.1 What is the security industry?
The security industry is—
in relation to the ACT—the industry in which security activities are undertaken by people licensed to undertake the activities under the Security Industry Act 2003; and
in relation to a reciprocating State—an industry of a kind mentioned in paragraph (a) to which a corresponding law of the State applies.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
In this section—
security activity means an activity within the meaning of the Security Industry Act 2003, section 7 (1) (a) to (h).
Stated people, including a custodial officer and a police officer, are exempt from the application of the Security Industry Act 2003 (see that Act, s 9 and Security Industry Regulation 2003, s 6 (1)). Those stated people are not undertaking a security activity for the purposes of this Act.
4.2 What is security work?
In this Act:
security work means work carried out in the security industry.
The Minister may declare work or an activity to be work in the security industry (see s 12 (2) (d)) or to not be work in the security industry (see s 13 (2) (d)).
4.3 Recognised service—security industry
In this schedule:
recognised service, for a registered worker in the security industry, means the total number of days of service credit for all of the service periods of the worker less any days of service credit that the worker—
has been granted long service leave for; or
has received a payment for instead of long service leave.
A registered worker for the security industry is taken to have completed a year of recognised service for each 365 days of recognised service.
4.4 Court or tribunal—not employer
A court or tribunal is not an employer for the security industry.
A covered industry schedule may prescribe an entity not to be an employer for the covered industry—see s 7 (3) (e).
4.5 Service credit—security industry—s 64
A registered worker for the security industry is to be credited in the workers register with 1 day of service for each day (including a day when the worker does not carry out security work) in each service period of the worker on or after the worker’s registration day.
Example
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 service period for the worker when the worker does not carry out security work.
Prior service is also credited in the workers register in accordance with, for employees, s 47, and for voluntary members, s 48.
However, the registrar must not enter more than 365 days of service in the workers register for the worker for the financial year.
4.5A Service period—security industry
A service period for a person who is a registered worker for the security industry is a continuous period—
beginning on the day when the person becomes a worker for the industry; and
ending on the day when the person stops being a worker for the industry.
For subsection (1), a person stops being an employee for an employer for the industry at the end of a quarter if—
if the employee was an employee of only 1 employer for the industry in the quarter—the employer’s return under section 49 for the following quarter shows no ordinary remuneration for the employee; or
if the employee was an employee of 2 or more employers for the industry in the quarter—none of the employers’ returns under section 49 for the following quarter shows ordinary remuneration for the employee.
Despite subsection (1), a registered worker’s service period is not taken to end if a person stops being a worker because—
of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1951; or
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
if the worker is a voluntary member—the voluntary member’s engagement by the employer is ended to ensure that the voluntary member does not take long service leave while engaged by the employer.
4.6 Long service leave formula—security industry
The following is the long service leave formula for the security industry:
RS means the registered worker’s number of days recognised service.
W means the number of weeks long service leave held by the worker.
4.7 Amount of leave—security industry
A registered worker for the security industry who has 7 years or more recognised service is entitled to the number of days of workers long service leave worked out in accordance with the long service leave formula for the security industry.
A registered worker for the security industry is entitled to additional long service leave worked out in accordance with the long service leave formula for the security industry if the worker—
becomes entitled to long service leave under this Act for work done in the industry; and
is credited with the additional days in the workers register after becoming entitled to long service leave.
4.8 Grant of leave by employers—security industry
The employer of a registered employee for the security industry commits an offence if—
the employee’s long service leave accrues; and
the employer does not grant the employee the long service leave before the end of the prescribed period.
Maximum penalty: 50 penalty units.
Long service leave must not be granted for a period of less than 2 weeks.
The employer of a registered employee for the security industry commits an offence if—
the employer has granted the employee long service leave; and
the employer does not give the employee a written statement of the day when the long service leave starts and ends—
not later than 2 months after the day when the long service leave starts; or
if the employer and employee agree on a shorter period—before the start of the period agreed.
Maximum penalty: 50 penalty units.
An offence against this section is a strict liability offence.
In this section:
prescribed period, for long service leave accrued by a registered employee for the security industry of an employer, means—
6 months after the day the leave accrues; or
if the governing board has allowed, on application by the employee, a period longer than 6 months—the period allowed by the board; or
if the employer and employee agree on a period longer than 6 months—the period agreed.
4.9 Entitlement to payment instead of leave—security industry
This section applies to a registered worker for the security industry if the worker has 5 years recognised service and—
all of the following apply:
the worker has permanently left the industry;
20 weeks have passed since the day the worker permanently left the industry;
the worker has not been credited with service in the workers register for any of the days in the 20-week period; or
any of the following apply:
the worker has left the industry because of total incapacity;
the worker has reached the prescribed retiring age;
the worker has died.
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 amount of long service leave worked out in accordance with the long service leave formula.
In this section:
prescribed retiring age—
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
in any other case—55 years.
4.10 Payments for leave—security industry
A registered employee for the security industry who has been granted long service leave under section 4.8, or a registered voluntary member for the industry who is entitled to long service leave, may apply to the authority for payment for the leave.
The authority must pay to the applicant the amount payable under section 4.12 (How are leave payments worked out for the security industry?) if the registrar is satisfied that—
the applicant is entitled to long service leave under this Act for work done in the security industry; and
the applicant has been granted leave by the applicant’s employer.
The authority must pay an applicant any amount payable under subsection (2)—
if agreed between the worker and the authority—in the 14-day period before the day the long service leave starts; or
in any other case—within 21 days after the day the worker’s application was made.
4.11 Payment instead of leave—security industry
If a registered worker for the security industry is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for the payment.
An application by a registered employee for the security industry on the ground that the employee has ceased work in the security industry because of total incapacity must be accompanied by a certificate of a doctor certifying that the employee is totally incapacitated for employment in the industry.
The governing board may require an applicant mentioned in subsection (2) to a medical examination by a doctor chosen by the board for that purpose from a panel of 3 doctors nominated by the Australian Capital Territory Branch of the Australian Medical Association.
All fees or charges payable for a medical examination under subsection (3) are to be paid by the authority.
If an applicant fails, without reasonable excuse to comply with a requirement under subsection (3), the governing board may refuse the application.
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 to the applicant the amount payable under section 4.12.
4.12 How are leave payments worked out for the security industry?
For section 4.10 and section 4.11, the amount payable to a registered worker for, or instead of, long service leave is—
for any part of the entitlement to long service leave accrued as an employee—the amount worked out in accordance with section 4.13; and
for any part of the entitlement to long service leave accrued as a voluntary member—the amount worked out in accordance with section 4.14.
For subsection (1)—
long service leave must be taken in the reverse order in which it accrued; and
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.
Example
Sam has 7 years of service in the security industry giving Sam an entitlement to 6.0669 weeks long service leave. Sam first worked in the industry as a registered employee and accrued 4.3335 weeks of the entitlement in that capacity. Sam then worked as a registered voluntary member and accrued 1.7334 weeks of the entitlement in that capacity.
Sam decides to take 6.0669 weeks long service leave. The payment for the leave is the total of the following amounts:
the amount calculated under s 4.13 where ‘D’ is 1825 (ie it took 1825 days of service as a registered employee to accrue the first 4.3335 weeks of long service leave entitlement);
the amount calculated under s 4.14, which is the total of the amounts paid to the authority under s 56 for 730 days (2 years) of service as a registered voluntary member (ie it took 730 days of service as a registered voluntary member to accrue the next 1.7334 weeks of long service leave entitlement) and the interest under s 4.14 on those amounts.
4.13 Leave payments for service as registered employee—security industry
For section 4.12, the amount payable to a registered worker for long service leave for service accrued as a registered employee for the security industry is the amount worked out as follows:
D means the number of days of service credited to the registered worker in the workers register to which the payment relates.
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
R is—
if the registered worker is receiving compensation under the Workers Compensation Act 1951—the weekly average of the ordinary remuneration received by the worker during the 4 quarters before the injury to which the compensation relates happened; or
in any other case—the highest of the weekly averages of the ordinary remuneration received by the registered worker during each of the following periods that applies to the worker:
the most recent 2 quarters of service as a registered employee before the designated day;
the most recent 4 quarters of service as a registered employee before the designated day;
the most recent 20 quarters of service as a registered worker before the designated day.
Example—R, par (b)
Danijela has worked in the security industry for 5 years. The periods in par (b) (i), (ii) and (iii) apply to Danijela because she has completed more than 20 quarters (or 5 years) relevant service.
Danijela’s average weekly income for the 2 quarters before the designated day is $283. Her 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.
4.14 Leave payments for service as registered voluntary member—security industry
For section 4.12 (How are leave payments worked out for the security industry?), the amount payable to a registered worker for the security industry for long service leave for service accrued as a registered voluntary member is the total of the following for the service:
amounts paid by the worker to the authority under section 56 (Determination of levy—voluntary members);
interest at the determined rate worked out from the date of receipt of each amount paid under section 56 until the designated day for the leave.
The governing board must determine an interim rate of interest from time to time before the determination of the rate under subsection (1).
The determined rate of interest must be determined at the end of each financial year for the previous financial year, and is—
if the security industry scheme funds invested made a return—75% of the rate of the return for the financial year in which the determination is made; or
if the fund did not make a return or made a loss—nil.
In this section:
designated day means—
if the registered worker is taking long service leave—the day the leave begins; and
if the registered worker is being paid instead of taking long service leave—the day the payment is made.
4.15 Payments by authority on reciprocal authority’s behalf—security industry
This section applies to a registered worker for the security industry who has a long service leave entitlement under this Act and a corresponding law.
The worker may apply to the authority for payment of a long service leave entitlement worked out in accordance with the corresponding law.
The authority must pay the worker the amount of the entitlement worked out in the way stated in the corresponding law if the authority is authorised by the reciprocal authority to make the payment.
4.16 Payments by reciprocal authority on authority’s behalf—security industry
This section applies if, under a corresponding law, a reciprocal authority pays to a person an amount that, but for the payment, would have been payable for a long service leave entitlement under this Act for work done in the security industry.
If the authority is notified about the payment and is satisfied the payment was properly made, the authority must reimburse the reciprocal authority the amount worked out as follows:
D means the number of days of service credited to the person in the workers register for service as an employee and to which the payment relates.
R is the amount decided by the reciprocal authority as the weekly amount payable to the person for the service credited to the person in the State.
If the authority makes a reimbursement under subsection (2), the obligation of the authority to make the payment to the person for the entitlement is discharged.
4.18 Records of payments and service—security industry
This section applies if the authority—
pays an amount to a registered worker for the security industry under section 4.10 (Payments for leave—security industry) or section 4.11 (Payment instead of leave—security industry); or
reimburses a reciprocal authority under section 4.16 (Payments by reciprocal authority on authority’s behalf—security industry) for an amount paid to a registered worker for the industry.
The authority must delete from the workers register the details relating to the period of service for which the worker has been paid.
However, the authority must keep another record of—
the period of service; and
the amount paid to the worker for long service leave or instead of long service leave; and
the period of long service leave (if any) granted to or taken by the worker.
4.19 Public holidays not to count as leave—security industry
This section applies if a public holiday falls during a period of long service leave taken by a registered employee for the security industry.
The period of long service leave is increased by 1 day for each public holiday.
Schedule 5 Reviewable decisions (see s 80, def reviewable decision)
column 1 item column 2 section column 3 decision column 4 entity column 5 decision-maker
1
31 (1) (b) refuse to allow additional time for application for registration by employer employer registrar
2
32 (2) refuse to register person as employer person registrar
3
37 (4) (b) confirm registrar’s decision to refuse to register applicant as employer applicant governing board
4
45 (3) (a) confirm registrar’s decision to refuse to register applicant as worker person governing board
5
47 refuse to credit employee with prior service employee governing board
6
47 amount of prior service credited employee governing board
7
48 refuse to credit voluntary member with prior service voluntary member governing board
8
48 amount of prior service credited voluntary member governing board
9
49 (2) (b) (ii) refuse to allow employer additional time for giving return to authority employer registrar
10
49A (1) (b) refuse to allow employer additional time for giving return to authority employer registrar
11
49A (3) refuse to waive all or part of late fee payable by employer employer registrar
12
52 (3) refuse to waive all or part of interest payable by employer employer registrar
13
54 (1) (b) refuse to allow registered voluntary member additional time for giving return to authority registered voluntary member registrar
14
60 (4) (b) fix another amount as the total ordinary remuneration of worker for quarter
worker
if the worker is an employee—the worker’s employer governing board
15
63 (2) (b) refuse to allow additional time for person to pay amount person registrar
16
66 (1) (b) refuse to direct registrar to re-register person person governing board
17
69 (4) allow, or refuse to allow, objection to matter in certificate given to worker under s 67
worker
if the worker is an employee—the worker’s employer governing board
18
69 (4) allow, or refuse to allow, objection to matter in certificate given to employer under s 68
employer
employee to whom objection relates governing board
19
89 (2) (b) not satisfied that amount paid by employer was properly paid employer registrar
20
89A (2) refuse reimbursement of direct payment of long service leave employer registrar
21 sch 1, 1.7 (5) (b), sch 2, 2.7 (5) (b), sch 3, 3.8 (5) (b) or sch 4, 4.8 (5) refuse to allow additional period applicant governing board
22 sch 1, 1.8 (3), sch 2, 2.8 (3), sch 3, 3.9 (2), or sch 4, 4.9 (2) not satisfied that section applies to applicant applicant governing board
23 sch 1, 1.9 (2), sch 2, 2.9 (2), sch 3, 3.10 (2) or sch 4, 4.10 (2) (a) not satisfied that applicant entitled to long service leave applicant governing board
24 sch 1, 1.10 (6), sch 2, 2.10 (6), sch 3, 3.11 (6) or sch 4, 4.11 (6) not satisfied that applicant entitled to payment instead of long service leave applicant governing board
Dictionary (see s 3)
The Legislation Act contains definitions and other provisions relevant to this Act.
For example, the Legislation Act, dict, pt 1, defines the following terms:
ACAT
ACT
administrative unit
contravene
director‑general (see s 163)
disallowable instrument (see s 9)
document
Executive
exercise
function
head of service
in relation to
public holiday
public servant
reviewable decision notice
State
territory authority
territory law
the Territory.
accommodation and food services industry—see schedule 2, section 2.1 (1) (a) (iii).
apprentice means an apprentice other than a school-based apprentice.
at premises, for part 8 (Enforcement)—see section 70.
authority means the Long Service Leave Authority established under section 79A.
building and construction industry—see schedule 1, section 1.1.
building and construction work—see schedule 1, section 1.2.
community sector industry—see schedule 3, section 3.1.
community sector work—see schedule 3, section 3.2.
corresponding law means a law of the Commonwealth or a State about long service leave.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
covered industry—see section 6.
covered industry schedule means—
for the building and construction industry—schedule 1; and
for the services industry—schedule 2; and
for the community sector industry—schedule 3; and
for the security industry—schedule 4.
day—see section 14.
decision-maker, for a reviewable decision, for part 9 (Notification and review of decisions)—see section 80.
employee—see section 9.
employer—see section 7.
employers register—see section 30.
governing board means the governing board of the authority established under section 79E.
hairdressing and beauty services industry—see schedule 2, section 2.1 (1) (a) (ii).
internally reviewable decision, for part 9 (Notification and review of decisions)—see section 80A (1).
long service leave formula—
for the building and construction industry—see schedule 1, section 1.5; and
for the services industry—see schedule 2, section 2.5; and
for the community sector industry—see schedule 3, section 3.6; and
for the security industry—see schedule 4, section 4.6.
occupier, for part 8 (Enforcement)—see section 70.
ordinary remuneration—
means salary or wages, and allowances, paid or payable to a worker for work; and
includes worker’s compensation payments made to a worker by the worker’s employer; but
does not include—
amounts paid to the worker for—
working overtime; or
reimbursement for expenses incurred by the worker; or
the use of materials, equipment or a motor vehicle provided by the worker; or
allowances paid to the worker for travel, meals, or protective clothing; or
amounts paid to the worker on termination of employment including—
payment in lieu of notice; and
lump sum payment for accrued leave; and
redundancy; or
superannuation contributions made by the worker’s employer.
premises includes any land, structure or vehicle and any part of an area of land, a structure or vehicle.
quarter—see section 48A.
reciprocal agreement—see section 90.
reciprocal authority means the entity under a corresponding law that administers the scheme of long service benefits established by the law.
reciprocating State means a State in relation to which a reciprocal agreement is in force.
State includes the Northern Territory (see Legislation Act, dict, pt 1).
recognised service, for a registered worker—
in the building and construction industry—see schedule 1, section 1.3 (1); and
in the services industry—see schedule 2, section 2.3 (1); and
in the community sector industry—see schedule 3, section 3.3 (1); and
in the security industry—see schedule 4, section 4.3 (1).
registered employee means an employee who is a registered worker.
registered employer means a person who is registered under section 34.
registered voluntary member means a voluntary member who is a registered worker.
registered worker means an individual who is registered under section 46.
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, in relation to a worker—see section 15.
reviewable decision, for part 9 (Notification and review of decisions)—see section 80.
school-based apprentice means an apprentice to whom a school‑based training arrangement, undertaken as part of a course of secondary education, applies.
security industry—see schedule 4, section 4.1.
security work—see schedule 4, section 4.2.
service, for a registered worker for a covered industry, means service in the covered industry.
service period, for a registered worker—
in the building and construction industry—see schedule 1, section 1.4A (1); and
in the services industry—see schedule 2, section 2.4A (1); and
in the community sector industry—see schedule 3, section 3.5A (1); and
in the security industry—see schedule 4, section 4.5A (1).
services industry—see schedule 2, section 2.1.
services work—see schedule 2, section 2.2.
staff of the authority, for part 8A (Administration)—see section 79J.
voluntary member—see section 10.
work, in a covered industry—see section 11.
worker—see section 8.
workers register—see section 39.
This Act’s bill:Explanatory statementSecond reading speech
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