1Short title
This Act may be cited as the Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011.
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Bill homepage (APH)This Act may be cited as the Coal Mining Industry (Long Service Leave) Legislation Amendment Act 2011.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 29 November 2011 |
2. Schedules 1, 2 and 3 | 1 January 2012. | 1 January 2012 |
3. Schedule 4, item 1 | 1 January 2010. | 1 January 2010 |
4. Schedule 4, item 2 | 1 January 2012. | 1 January 2012 |
5. Schedule 5 | 1 January 2012. | 1 January 2012 |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Long service leave entitlement
Part 1—Main amendments
Coal Mining Industry (Long Service Leave Funding) Act 1992
1 Subsection 4(1)
Insert:
base rate of pay has the same meaning as in the Fair Work Act 2009.
2 Subsection 4(1)
Insert:
civil penalty order has the meaning given by section 49A.
3 Subsection 4(1)
Insert:
civil penalty provision means a provision declared by this Act or the Payroll Levy Collection Act to be a civil penalty provision.
4 Subsection 4(1)
Insert:
covers, in relation to an industrial instrument that is a modern award, enterprise agreement or workplace determination, has the same meaning as in the Fair Work Act 2009.
5 Subsection 4(1)
Insert:
eligible wages has the same meaning as in the Payroll Levy Collection Act.
6 Subsection 4(1)
Insert:
employee organisation has the same meaning as in the Fair Work Act 2009.
7 Subsection 4(1)
Insert:
enterprise agreement has the same meaning as in the Fair Work Act 2009.
8 Subsection 4(1)
Insert:
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
9 Subsection 4(1)
Insert:
fair work instrument has the same meaning as in the Fair Work Act 2009.
10 Subsection 4(1)
Insert:
Federal Court means the Federal Court of Australia.
11 Subsection 4(1)
Insert:
FWA has the same meaning as in the Fair Work Act 2009.
12 Subsection 4(1)
Insert:
industrial association has the same meaning as in the Fair Work Act 2009.
13 Subsection 4(1)
Insert:
industrial instrument means:
a fair work instrument; or
a contract of employment.
14 Subsection 4(1)
Insert:
insolvent has the same meaning as in the Corporations Act 2001.
15 Subsection 4(1)
Insert:
LSL credit has the meaning given by subsection 39AB(5).
16 Subsection 4(1)
Insert:
LSL dispute has the meaning given by subsection 39D(1).
17 Subsection 4(1)
Insert:
modern award has the same meaning as in the Fair Work Act 2009.
18 Subsection 4(1)
Insert:
ordinary hours of work of an eligible employee means:
if an industrial instrument that covers the employee specifies, or provides for the determination of, the ordinary hours of work of the employee—those hours; or
otherwise—the hours agreed by the employee and his or her employer as the employee’s ordinary hours of work;
regardless of the number of hours actually worked by the employee.
19 Subsection 4(1)
Insert:
public holiday has the same meaning as in the Fair Work Act 2009.
20 Subsection 4(1)
Insert:
qualifying service has the meaning given by section 39A.
21 Subsection 4(1)
Insert:
salary sacrifice arrangement has the same meaning as in the Payroll Levy Collection Act.
22 Subsection 4(1)
Insert:
waiver agreement means an agreement made under section 39B and includes such an agreement as varied under section 39BA.
23 Subsection 4(1)
Insert:
workplace determination has the same meaning as in the Fair Work Act 2009.
24 After paragraph 7(d)
Insert:
to maintain records relating to:
the employment of eligible employees; and
the qualifying service completed by, and the long service leave entitlements of, eligible employees; and
employers of eligible employees; and
amounts that are, or may become, payable to employers under Part 7; and
25 After Part 5
Insert:
General rule
If an eligible employee completes a period of qualifying service that is, or periods of qualifying service that add up to, at least 8 years, the employee is entitled to long service leave under this Part in respect of that period, or those periods, of qualifying service.
Meaning of qualifying service
A period of qualifying service by an employee is a period during which the employee is an eligible employee of one or more employers, but does not include any of the following:
a period of unauthorised absence;
a period of unpaid leave or unpaid authorised absence, other than:
a period of absence under Division 8 of Part 2‑2 of the Fair Work Act 2009 (which deals with community service leave); or
a period of stand down under Part 3‑5 of the Fair Work Act 2009, under an enterprise agreement that applies (within the meaning of that Act) to the employee, or under the employee’s contract of employment; or
a period during which the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation or under an industrial instrument; or
a period of leave or absence of a kind prescribed by the regulations for the purposes of this paragraph;
if the employee ceases to be an eligible employee for a continuous period (a break period) of 8 years or more—any period before the break period during which the employee was an eligible employee;
any period during which a waiver agreement is in effect between the employee and an employer;
any other period of a kind prescribed by the regulations for the purposes of this paragraph.
For the purposes of subsection (2), if a casual employee is an eligible employee at any time during a week, the employee is taken to have been an eligible employee for the whole week.
Effect of break period once entitled to long service leave
If:
an employee ceases to be an eligible employee for a continuous period of 8 years or more; and
at the time of so ceasing, the employee is entitled to long service leave under subsection (1) in respect of a period, or periods, of qualifying service (the employee’s previous qualifying service); and
the employee becomes an eligible employee again;
paragraph (2)(c) does not apply in respect of the employee’s previous qualifying service.
The number of hours of long service leave that an eligible employee is entitled to for a week of qualifying service completed by the employee is worked out using the formula in subsection (2).
The formula is:
where:
working hours means:
if the employee is a full‑time employee at all times during the week—35 hours; or
if the employee is a part‑time employee at any time during the week—the lesser of the following amounts (or either of them if they are equal):
the total number of ordinary hours of work of the employee as a part‑time employee for the week;
35 hours; or
if the employee is a casual employee at any time during the week and paragraph (b) does not apply—the lesser of the following amounts (or either of them if they are equal):
the total number of hours worked by the employee as a casual employee during the week;
35 hours.
An eligible employee may apply, in writing, to his or her employer to take a period of long service leave.
The employee may only apply to take a period of long service leave that:
is a single continuous period of at least 14 days (being equivalent to a number of hours of long service leave as agreed with the employer); and
does not exceed the employee’s LSL credit at the time the leave is to be taken.
An employee is taken not to be on long service leave on public holidays and during certain other periods of absence (see section 39AE).
As soon as practicable, but no later than 14 days after the application is made, the employer must give the employee a written response:
stating whether or not the employer grants the long service leave; and
if the employer refuses to grant the long service leave—giving details of the reasons for the refusal.
The employer may refuse to grant long service leave only on reasonable business grounds.
Meaning of LSL credit
For the purposes of this section, the long service leave credit (LSL credit) of an eligible employee on a day (the calculation day) is the number of hours worked out as follows:
first, add together the number of hours of long service leave that the employee is entitled to under section 39AA for each week of qualifying service completed by the employee before the calculation day;
then, subtract the number of hours of long service leave (if any) previously granted to the employee under this section.
The number of hours of long service leave that an employee is entitled to in respect of certain qualifying service may be affected by section 39CE.
Civil penalty provisions
Subsections (3) and (4) are civil penalty provisions.
Part 7A provides for pecuniary penalties for contraventions of civil penalty provisions.
Division 4 of this Part provides other remedies for contraventions of civil penalty provisions.
If an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than an amount that is equal to the base rate of pay (including incentive‑based payments and bonuses) that would have been payable to the employee during the period had the employee not taken the leave.
Subsection (1) is a civil penalty provision.
Part 7A provides for pecuniary penalties for contraventions of civil penalty provisions.
Division 4 of this Part provides other remedies for contraventions of civil penalty provisions.
In this section:
a reference to the base rate of pay payable to an employee is a reference to the employee’s base rate of pay before any amounts are deducted under a salary sacrifice arrangement; and
a reference to an incentive‑based payment in relation to an employee is a reference to a payment of that kind that is paid to the employee at least once a month; and
a reference to a bonus in relation to an employee is a reference to a bonus that is paid to the employee at least once a month.
If an eligible employee takes a period of long service leave, the employer must pay the employee for the long service leave:
at the same time as the employer would have paid the employee during the period if the employee had not taken the leave; or
if the employee requests to be paid in advance for the whole period and an industrial instrument that covers the employee expressly allows the employee to be paid in advance for long service leave—in accordance with the employee’s request.
Subsection (1) is a civil penalty provision.
Part 7A provides for pecuniary penalties for contraventions of civil penalty provisions.
Division 4 of this Part provides other remedies for contraventions of civil penalty provisions.
If the period during which an eligible employee takes long service leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes:
the employee is taken not to be on long service leave on that whole day; and
the public holiday is taken not to break the continuity of the period of long service leave.
If the period during which an eligible employee takes long service leave includes a period of absence from employment under Division 8 of Part 2‑2 of the Fair Work Act 2009 (which deals with community service leave):
the employee is taken not to be on long service leave for the period of absence; and
the period of absence is taken not to break the continuity of the period of long service leave.
An eligible employee of a kind prescribed by the regulations may make an agreement (a waiver agreement) with his or her employer that provides for the employer to do either or both of the following:
pay additional remuneration to the employee or as directed by the employee;
make additional contributions, for the employee’s benefit, to a superannuation fund nominated by the employee;
in lieu of long service leave that the employee would be entitled to under this Part in respect of qualifying service that the employee would have otherwise completed.
A period of qualifying service by an employee does not include any period during which a waiver agreement is in effect between the employee and an employer (see paragraph 39A(2)(d)).
An employer is not required to pay payroll levy in respect of eligible wages paid to an employee for any period during which a waiver agreement is in effect between the employee and an employer (see section 39BD).
The value of the additional remuneration, contributions, or both, must be equal to, or greater than, the amount of payroll levy that would have been payable by the employer in respect of eligible wages paid to the employee had the waiver agreement not been in effect.
The waiver agreement must:
be in writing; and
include terms dealing with the matters set out in subsection (4); and
be signed by both the employee and employer; and
specify the date on which the agreement is made; and
specify the date on which the agreement takes effect (being a date after the agreement is lodged with the Corporation under subsection (5)).
For the purposes of paragraph (3)(b), the matters are:
the frequency of the additional payments, contributions or both; and
if, because of a change in circumstances, the agreement no longer complies with subsection (2)—how the agreement is to be varied under section 39BA.
As soon as practicable after the waiver agreement is made, the employer must lodge it with the Corporation.
A waiver agreement between an employee and an employer ceases to have effect if:
the Corporation refuses to approve it (see subsection 39BC(5)); or
it is terminated under section 39BB; or
the employee ceases to be an eligible employee of a kind mentioned in subsection (1).
If a waiver agreement is in effect between an employee and an employer, the employee and employer may agree to vary the agreement.
The variation must:
be in writing; and
be signed by both the employee and employer; and
specify the date on which the variation is made; and
specify the date on which the variation takes effect (being a date after the variation is lodged with the Corporation under subsection (3)).
As soon as practicable after the variation is made, the employer must lodge the varied waiver agreement with the Corporation.
If a waiver agreement is in effect between an employee and an employer, the employee and employer may agree to terminate the agreement.
The employer may only refuse to terminate a waiver agreement if the employer has reasonable grounds to do so.
The agreement to terminate must:
be in writing; and
be signed by both the employee and employer; and
specify the date on which the waiver agreement terminates.
As soon as practicable after the agreement to terminate is made, the employer must give the Corporation written notice of the termination, including the date on which the waiver agreement terminates.
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