Portable Long Service Leave Act 2024

This

Act may be cited as the Portable

Long Service Leave Act 2024.

This

Act comes into operation on a day to be fixed by proclamation.

In this Act—

allowable absence, in relation to a designated worker, means an absence of the worker from work, being an absence of a kind prescribed by the regulations to be an allowable absence;

approved form means a form approved by the CEO;

authorised officer means a person appointed as an authorised officer under section 63;

CEO means the chief executive officer of each industry board under section 17(1);

civil penalty—see section 56;

community services are services—

that qualify under Schedule 2;

or

that are prescribed by the regulations;

community services sector means the area of work within the community that involves the provision of community services;

Construction

Industry Board means the Construction Industry Long Service Leave Board established under the Construction

Industry Long Service Leave Act 1987;

contract of service includes a contract of training;

corresponding law means a law of another State, or of a Territory or the Commonwealth, prescribed by the regulations to be a corresponding law;

designated sector means a sector in relation to which an industry board is established;

designated worker means a person to whose employment this Act applies (see section 5) and includes a former designated worker;

director of a body corporate includes—

a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act;

effective service means a period of service as a designated worker credited under this

Act;

employer means a person by whom a designated worker is employed;

industry board means a board established under Schedule 1;

industry fund—see section 41;

levy includes an amount assessed by an industry board under section 50;

Maximum civil penalty—

see section 56;

ordinary weekly pay—see subsection (4);

preservation period means—

in reference to a person who has an effective service entitlement of less than 60 months—24 months; or

in reference to a person who has an effective service entitlement of 60 months or more—36 months;

public sector agency means—

an administrative unit under the Public

Sector Act 2009 (including the Chief Executive of such an administrative unit); or

an agency or instrumentality of the Crown;

quarter means a period of 3 months commencing on any of the following:

1

January;

1

April;

1

July;

1

October;

registered employer means a person registered as an employer under Part 3

Division 1;

relevant date means the date as at which a person's ordinary weekly pay is to be determined;

relevant designated sector—see section 8(1)(a);

relevant industry board means—

in relation to a designated worker—the industry board for the designated sector that applies to the worker in the particular circumstances; or

in relation to an employer in a designated sector—the industry board for the designated sector;

return period means each quarter that constitutes a return period under section 49.

For the purposes of this Act—

a reference to the industry board for a designated sector is a reference to the industry board constituted in relation to the sector; and

a reference to the designated sector of an industry board is a reference to the designated sector in relation to which the board is constituted.

For the purposes of this Act, a person will be taken to have worked for a day if the person spends at least the prescribed number of consecutive hours engaged in employment to which this Act applies during any 24 hour period.

Subject to this Act, a person's ordinary weekly pay will be an amount determined by averaging the person's weekly earnings as a designated worker over the period of 3 years immediately preceding the relevant date, subject to the following qualifications:

a week in which the person did not work as a designated worker must be disregarded;

if the person has not worked as a designated worker at all during the period of 12 months immediately preceding the relevant date, the person's ordinary weekly pay will be taken to be an amount determined by averaging the person's weekly earnings as a designated worker over the period of 3 years immediately preceding the end of the last return period in which the person worked in the relevant designated sector;

the regulations may—

specify payments made to or for the benefit of a designated worker that must be included for the purposes of any determination or calculation under this subsection; and

specify payments made to or for the benefit of a designated worker that must be excluded for the purposes of any determination or calculation under this subsection;

if, but for this paragraph, a person's ordinary weekly pay would be less than an amount prescribed by the regulations, the person's ordinary weekly pay will be fixed at that amount.

Unless otherwise specified, ordinary weekly pay will be determined as at the end of the last completed return period under this Act.

If at any time it appears to the industry board for a designated sector that a designated worker's ordinary weekly pay calculated in accordance with this Act is—

excessive;

or

insufficient, by reason of—

the nature of the work performed by the designated worker at any time material to the calculation; or

the remuneration that was payable to the designated worker in respect of any work performed by the designated worker at any time material to the calculation, the board may, by written notice to the designated worker and the designated worker's employer (if any), inform the designated worker (or their personal representative) and the employer that the board proposes to determine the designated worker's ordinary weekly pay under this Act to be a different amount.

A notice under subsection (1) must specify a time within which the designated worker (or their representative) and the employer may make written submissions to the industry board that the designated worker's ordinary weekly pay should be an amount different to the amount proposed by the board.

In making a determination under this section an industry board must take into account any written submission received within the time specified under subsection (2) and may otherwise inform itself in such manner as it thinks fit, but except as provided by this section an industry board is not required to give to any person notice of or an opportunity to answer or to be heard in relation to any matter taken into account by the board in making the determination.

An industry board must cause notice of its determination under this section to be served on the designated worker (or their personal representative) and on the designated worker's employer (if any).

The notice must include a statement of the grounds on which the determination has been made.

If an industry board makes a determination of a designated worker's ordinary weekly pay under this section, that determination will prevail over any amount that would otherwise constitute the designated worker's ordinary weekly pay under this Act.

This

Act applies to a person's employment if the person—

is engaged under a contract of service in the community services sector to—

perform community services; or

support the provision of community services; or

is engaged under a contract of service in a designated sector to—

perform services prescribed as being part of the sector; or

support the provision of services prescribed as being part of the sector.

The following provisions apply in connection with subsection (1)(a)(ii):

the person must work in supporting the provision of community services for a proportion of at least one‑half of the time when they work for the employer during any return period for the Act to apply to their employment in respect of that return period;

an employer may decide to register a person as a designated worker, and pay a levy in respect of that person, despite the fact that paragraph (a) does not apply and then, once the person is so registered, subsection (1)(a)(ii) will apply to that employment while the person is engaged under a contract of employment described in that paragraph.

Part 3,

Part 4 and

Part 6 do not apply to a person's employment (and consequently the person is not a designated worker for the purposes of those Parts) if the person's employer is a body corporate and the person is a director of the body corporate.

Subsection (3) does not limit the operation of section 57.

This

Act does not apply in relation to employment by—

a public sector agency; or

a council; or

a prescribed employer or an employer of a prescribed class.

Subsection (5)(a) does not apply in relation to employment within the ambit of a notice under section 6.

If a person's employer is not a registered employer due to a determination of an industry board under section 7, this Act does not apply in relation to the employment of the person in a designated sector until the employer becomes a registered employer.

The

Minister may, by notice in the Gazette, apply this Act to employment in a specified public sector agency that constitutes the performance of work in a particular designated sector.

The

Minister may—

limit the application of the Act under subsection (1) to—

specified classes of workers; or

specified classes of work; and

vary or revoke a notice under subsection (1) by further notice in the Gazette.

An industry board may determine that an employer, or an employer of a specified class, is not required to be registered under this Act in relation to its designated sector until—

a date specified by the board; or

the occurrence of an event specified by the board; or

the employer falls within a category of employer specified by the board.

A determination under subsection (1) may be made—

on application by an employer; or

on the own initiative of the industry board.

An industry board may, pending making a decision on an application under subsection (2), exempt an employer from the requirement to be registered under this

Act.

A determination under this section—

may be made subject to conditions specified by the industry board; and

may include ancillary provisions that may be expedient or considered by the industry board to be appropriate in the circumstances; and

has effect according to its terms.

An industry board may vary a date specified under subsection (1)(a) by a subsequent determination.

Until the employer is registered, this Act will not apply to a person's employment with that employer.

This

Act—

applies to a designated worker in respect of service in a particular designated sector at a particular time or in a particular circumstance or case (the relevant designated sector);

and

insofar as a designated worker may work in more than 1 designated sector, applies to the employment of the designated worker in 1 designated sector in a separate and distinct manner to the employment of the designated worker in another designated sector.

Accordingly—

a reference to effective service, as it relates to a designated worker, is a reference to the worker's work in the relevant designated sector; and

a reference to being engaged in employment is a reference to employment in the relevant designated sector; and

a reference to working as a designated worker is a reference to working in the relevant designated sector; and

a reference to not being a designated worker during a particular period is a reference to not being a designated worker in the relevant designated sector; and

a designated worker does not have continuity of employment if the worker moves from 1 designated sector to another (unless the designated worker continues to work for the same employer); and

a designated worker's entitlement to long service leave, or a payment on account of long service leave, is determined according to the worker's effective service entitlement in the relevant designated sector.

This section applies subject to any contrary intention made by this Act.

An industry board—

is a body corporate; and

has perpetual succession and a common seal; and

has all the powers of an individual that are capable of being exercised by a body corporate; and

has the functions assigned to the board under this Act.

An industry board is subject to direction by the Minister.

A direction given by the Minister under subsection (2) must be in writing.

An industry board must cause a direction given by the Minister to be published in its next annual report.

An industry board consists of 7 members, appointed by the Minister, of whom—

1 will be a person appointed as the presiding member of the board; and

3 will be persons appointed after the Minister has taken into account the recommendations of 1 or more employer organisations, to represent the interests of employers in the designated sector in relation to which the board is constituted; and

3 will be persons appointed after the Minister has taken into account the recommendations of 1 or more employee organisations, to represent the interests of employees in the designated sector in relation to which the board is constituted.

The

Minister may appoint a suitable person to be a deputy of a member of an industry board and the person may act as a member of the board—

in the absence from the duties of office of the member for whom the person has been appointed as deputy; or

if the office of the member for whom the person has been appointed as deputy becomes vacant—until the vacancy is filled by the Minister.

A deputy member is to be appointed after taking into account recommendations from employer or employee organisations in the same way as a member of an industry board is appointed.

If—

the presiding member is absent from the duties of office or the office of the presiding member is vacant; and

there is no deputy to act as the presiding member under subsection (2), the remaining members of the industry board may appoint one of their number to act as the presiding member as required (and may revoke any such appointment at any time).

A member of an industry board will be appointed on conditions determined by the Minister and for a term, not exceeding 5 years, specified in the instrument of appointment and, on the expiration of a term of appointment, is eligible for reappointment.

The

Minister may remove a member of an industry board from office—

for breach of, or noncompliance with, a condition of appointment; or

for misconduct; or

for failure or incapacity to carry out official duties satisfactorily;

or

if the member was recommended for appointment on account of being an officer or employee of an employer organisation or an employee organisation and the member has ceased to be such an officer or employee.

The office of a member of an industry board becomes vacant if the member—

dies;

or

completes a term of office and is not reappointed; or

resigns by written notice to the Minister; or

is convicted of an indictable offence or is sentenced to imprisonment for an offence; or

becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or

is removed from office under subsection (2).

A member of an industry board whose term of office expires may continue to act as a member until a fresh appointment is made.

A member of an industry board is entitled to remuneration, allowances and expenses determined or approved by the Governor.

Remuneration, allowances and expenses payable under subsection (1) will be paid out of the industry fund established by the industry board under Part 5

Division 1.