Interpretation
3 Interpretation
In this Act, unless the contrary intention appears—
agreement means—
an enterprise agreement; or
an enterprise agreement under the Fair Work Act 2009 of the Commonwealth; or
an agreement given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
award includes—
an award or order of SAET;
an award, determination or order of Fair Work Australia under the Fair Work Act 2009 of the Commonwealth; or
an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
corresponding law means a law—
of the Commonwealth; or
of a State (other than this State) or a Territory of the Commonwealth; or
of another country, that confers long service leave entitlements;
employer means a person by whom a worker is employed;
enterprise agreement means an enterprise agreement under the Fair Work Act 1994;
individual agreement, in relation to an employer and a worker, means an agreement (other than an enterprise agreement) individually negotiated between the employer and the worker;
inspector means an inspector under the Fair Work Act 1994;
long service leave entitlement means an entitlement to long service leave or payment in lieu of long service leave;
registered association means—
an association registered under the Fair Work Act 1994; or
an organisation registered under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth;
related corporations means corporations—
that are related to each other for the purposes of the Corporations Act 2001 of the Commonwealth; or
that have substantially the same directors or are under substantially the same management;
the relevant date means the day on which long service leave is commenced or an entitlement to payment in lieu of long service leave arises;
SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014;
service means continuous service with the same employer or with related employers under a contract of service or a series of contracts of service;
worker means a person employed under a contract of service.
A reference in this Act to a worker's ordinary weekly rate of pay is a reference to the worker's weekly rate of pay as at the relevant date exclusive of overtime, shift premiums and penalty rates but this definition is subject to the following qualifications—
if the worker is employed on commission or on any other system of payment by result, the worker's ordinary weekly rate of pay will be ascertained by averaging the worker's weekly earnings over the 12 months immediately preceding the relevant date; and
if during the whole or part of the period of three years immediately preceding the relevant date—
the worker was employed on an hourly basis at an hourly rate of pay; or
the workers ordinary hours of work per week were varied and consequently the worker's weekly rate of pay was varied; or
the worker worked on a casual or part-time basis, the worker's ordinary weekly rate of pay will be ascertained by averaging the number of hours worked per week in that period of three years and multiplying that result by the worker's rate of pay per hour as at the relevant date, exclusive of overtime, shift premiums and penalty rates (and for the purposes of this paragraph a person who is employed on a casual basis is not to be regarded as being paid at a penalty rate); and
if the worker's employer provides accommodation during his or her employment but not while the worker is on leave, the worker's ordinary weekly rate of pay will be increased by an amount representing the weekly value of that accommodation (that value being determined, where possible, by reference to an award or agreement and, where there is no applicable award or agreement, by reference to the fair and reasonable monetary value of that accommodation).
Employers are related for the purposes of this Act if—
one takes over or otherwise acquires the business or part of the business of the other; or
they are related corporations; or
a series of relationships can be traced between them under paragraph (a) or (b).
For the purpose of averaging weekly earnings under subsection (2)(a) or the number of hours worked per week under subsection (2)(b)—
any week when the relevant worker—
was on unpaid leave for the whole of the week; or
was absent from work on account of a work injury (within the meaning of the Return to Work Act 2014) for which the worker received weekly payments under that Act or, before 1 July 2015, under the Workers Rehabilitation and Compensation Act 1986, will be disregarded; and
the relevant periods under subsection (2)(a) and (2)(b) will be taken to be periods (which need not be consecutive) totalling 12 months (in the case of subsection (2)(a)) or 3 years (in the case of subsection (2)(b)) after disregarding any weeks when the worker was not at work due to unpaid leave or an absence from work on account of a work injury (within the meaning of the Return to Work Act 2014) for which the worker received weekly payments under that Act or, before 1 July 2015, under the Workers Rehabilitation and Compensation Act 1986; and
any period when the relevant worker was on paid leave will be taken into account.
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