Long Service Leave Act 1976

Long Service Leave Act 1976

This Act may be cited as the Long Service Leave Act 1976.

The Acts that are specified in Schedule 1 are repealed.

In this Act, unless the contrary intention appears – age for retirement means – in a case where an age for retirement is prescribed in an industrial award that is applicable to an employee, or is fixed by the terms of an employee's contract of employment – the age so prescribed or fixed; or in any other case – the age of 65 years, in the case of a male, or 60 years in the case of a female; business includes any trade, process, profession, or occupation, and any part thereof;Commission means the Tasmanian Industrial Commission constituted under the Industrial Relations Act 1984;Commissioner means a person appointed and holding office as a member of the Commission; employee means a person who is employed by an employer to do any work for hire or reward, and includes an apprentice or any other person whose contract of employment requires him to learn or be taught any business; employer means a person by whom an employee is employed, and includes the Crown;Full Bench means a Full Bench of the Commission constituted in accordance with section 14 of the Industrial Relations Act 1984; industrial dispute means a dispute in relation to any matter affecting or relating to the relations of employers and employees in any business, or their respective rights, privileges, duties, or obligations; inspector means a person who is appointed as an inspector for the purposes of this Act or is an inspector by virtue of section 4(1), and includes the Secretary; metalliferous mine means – a place, open cut, quarry, shaft, tunnel, drive, level or other excavation, drift, gutter, lead, vein, lode, or reef in or by which an operation is carried on for or in connection with the purpose of obtaining a mineral substance by any manner or method; or a place adjoining a metalliferous mine within the meaning of paragraph (a) on which a product of that mine is stacked, stored, crushed, or otherwise treated – and includes – a place where 2 or more men are employed in connection with prospecting operations for the purposes of the discovery or exploration of or for a mineral substance, whether by drilling, boring, or any other method; and so much of the surface of a place and the buildings, workshops, change-houses, structures, and works on that place surrounding or adjacent to the shaft, outlets, or site of a metalliferous mine, within the meaning of a preceding paragraph of this definition, as are occupied, together with the mine, for the purposes of or in connection with the working of the mine, or the removal from the mine of refuse, or the health, safety, or welfare of persons employed in, at, or about the mine; mining employee means an employee who is employed in, at, or about a metalliferous mine;Secretary means the Secretary of the Department; transmission, used in relation to an employer's business, includes any transfer, conveyance, assignment, or succession, whether by agreement or by operation of law; workers' compensation means compensation payable under – the Workers Rehabilitation and Compensation Act 1988; or the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011; or the Workers' (Occupational Diseases) Relief Fund Act 1954 or a scheme substituted for the provisions thereof under section 41 of that Act.

Where an employee is employed in or about any place in the business of an employer and the employment of the employee with that employer is terminated, and, not later than the expiration of a period of 2 months from the date on which that employment was so terminated, the employee becomes employed in or about that place in the business of some other employer, the business of the employer by whom his employment has been terminated shall, for the purposes of this Act, be deemed to have been transmitted to the employer by whom he so becomes employed if the business in which he so becomes employed is of the same, or substantially the same, kind as the business in which he was employed in the employment that has terminated.

The several substances specified in Schedule 2 are mineral substances within the meaning of this Act.

The Governor may, by order, amend Schedule 2 by adding a substance to, or removing a substance from, that Schedule.

This Act does not apply to an employee who –

is an employee within the meaning of the Long Service Leave (State Employees) Act 1994; or is entitled to long service leave under Division 1 of Part 7 of the Local Government (Building and Miscellaneous Provisions) Act 1993.

A person who is an inspector under the Industrial Relations Act 1984 is, by virtue of his office, an inspector for the purposes of this Act.

The Secretary is, by virtue of that office, an inspector for the purposes of this Act.

Subject to and in accordance with the State Service Act 2000, persons may be appointed as inspectors for the purposes of this Act.

Persons appointed as inspectors for the purposes of the Long Service Leave Act 1956 shall be deemed to have been so appointed for the purposes of this Act.

For the purposes of this Act, employment (whether before or after the commencement of this Act) shall be deemed to be continuous notwithstanding – the taking of any annual leave or long service leave; any absence from work of the employee on a public holiday in accordance with the terms of his employment; any absence from work on account of illness or injury that has been certified as necessary by a medical practitioner; the taking of any maternity leave by the employee in accordance with the terms of her employment; any interruption or ending of the employment by the employer, if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave; any interruption arising directly or indirectly from an industrial dispute, but only if the employee returns to work in accordance with the terms of settlement of the dispute; any absence from work, by leave of the employer, for the purpose of the employee attending a meeting of a committee established under the Training and Workforce Development Act 2013; the termination of the employment of an employee for any reason other than on account of slackness of trade, but only if he is re-employed by the same employer within 3 months after the date of that termination; the standing down for a period not exceeding 6 months of an employee on account of slackness of trade, or the termination of employment of an employee who returns to work within a period not exceeding 6 months after the termination of his employment on account of slackness of trade, but only if the return to work by the employee is made within 14 days after – receiving from the employer an offer of re-employment; or the date on which the employer posts to the employee, by registered letter addressed to the employee at his last-known address, a notice to resume work; any absence from work of the employee for the purpose of – complying with a summons to appear as a juror; appearing to give evidence before any court or body before which or person before whom persons may by law be required to appear to give evidence; or complying with any requirement or exercising any right to appear before such a court, body, or person as is referred to in subparagraph (ii), whether as a party to any proceedings or as a witness or otherwise; or any other absence of the employee from work by leave of the employer.

In calculating the period of continuous employment of an employee, an interruption or absence of any of the kinds to which paragraphs (a), (b), (c), (d), (f), and (i) of subsection (1) relate shall be counted as part of the period of his employment, but an interruption or absence of any of the kinds to which paragraphs (ca), (e), (g), (h), and (j) of that subsection relate shall not be counted as part of the period of his employment.

Without limiting subsections (1) and (2), where an employee is regularly employed by an employer for not less than 32 hours in each consecutive period of 4 weeks, the employee shall be deemed for the purposes of this Act to be continuously employed by the employer, notwithstanding – that any of the employment is not full-time employment; that the employee was so employed under 2 or more contracts of employment separately entered into; that, apart from this subsection, the employee would be regarded as being engaged in casual employment; or that the employee engaged in other employment during that period.

Where a business is, whether before or after the commencement of this Act, transmitted from an employer (in this subsection referred to as "the transmittor") to another employer (in this subsection referred to as "the transmittee") and a person who at the time of the transmission was an employee of the transmittor in that business becomes an employee of the transmittee – the continuity of the employment of that employee shall be deemed not to have been broken by reason of the transmission; and the period of employment of the employee with the transmittee shall be deemed to include the period of his employment, and any period deemed to be a period of his employment, with the transmittor.

Where an employee transfers from employment with a corporation to employment with a corporation associated with that corporation – the continuity of his employment shall be deemed not to have been broken by reason only of his so transferring; and the period of his employment with the corporation to employment with which he so transfers shall be deemed to include the period of his employment, and any period deemed to be a period of employment, with the corporation from employment with which he so transfers.

For the purposes of subsection (5) a corporation shall be deemed to be associated with another corporation if those corporations are related to each other within the meaning of section 50 of the Corporations Act.

Without prejudice to the provisions of subsection (6), where – an employee is transferred from employment with one corporation to employment with another; the directors of each of those corporations are substantially the same or the corporations are under substantially the same management; and the employee believes on reasonable grounds that he has remained in employment with the same employer – this Act has effect in relation to that transfer as if those corporations were associated corporations within the meaning of subsection (5).

In this section the expressions "corporation" and "director" have respectively the same meanings as they have for the purposes of the Corporations Act.

Where the employment of an employee who is apprenticed to an employer has been continued by that employer upon or at any time within 3 months after the completion of the apprenticeship, the period of the apprenticeship shall be counted as part of the period of continuous employment of that employee with that employer.

A period of service by an employee as a member of the naval, military, or air forces (other than as a member of the permanent force) of the Commonwealth shall be deemed to be employment with the employer by whom the employee was last employed before he commenced to serve as a member thereof.

For the purposes of subsection (10), in the case of an employee whose last employment was temporary employment during a stand down period the expression "employer by whom the employee was last employed" means the employer who stood down the employee.

For the purposes of this Act, the continuous employment of an employee by an employer by whom he is employed at the commencement of this Act shall, subject to this section, be deemed to have commenced on the actual date on which that employee was first employed by that employer before the commencement of this Act.

Notwithstanding the provisions of subsection (1), in computing an employee's entitlement to long service leave under this Act – continuous employment before the commencement of the Long Service Leave Act 1956, to the extent to which it is in excess of 24 years, shall be disregarded; and long service leave (or payment in lieu thereof) granted to the employee in respect of any period of employment that is, under this section, taken into account in computing the employee's entitlement to long service leave under this Act shall be taken into account, and shall be deemed to have been leave taken under this Act.

The Secretary may, subject to such conditions as he thinks fit to impose, exempt an employer from the operation of this Act or a provision of this Act in respect of all or any class of the employees employed by the employer where the Secretary is satisfied that– those employees are, or that class of employee is, under the terms of employment with the employer, entitled, under any scheme established or conducted by or on behalf of that employer, to benefits that are not less favourable to those employees, or that class of employees, than those prescribed by this Act; and it is in the best interests of those employees, or that class of employees, that the exemption should be granted.

An exemption granted under subsection (1) shall be granted so as to operate for such period, not exceeding 5 years, as the Secretary may determine, and may be renewed so as to operate for such further periods, not exceeding 5 years at any one time, as the Secretary may think desirable.

Where the Secretary revokes or refuses to renew an exemption granted under this section, the continuous employment, before the date of the revocation or refusal, of the employees in respect of whom or, as the case may be, of the employees included in the class of employees in respect of which, the exemption was granted shall be taken into account for the purpose of computing their entitlement to long service leave under this Act, but – any period of long service leave granted to such an employee before that date pursuant to such a scheme as is referred to in subsection (1)(a) shall be deemed to have been a period of long service leave granted to him under the provisions of this Act; and any sum paid to such an employee in lieu of long service leave before that date pursuant to such a scheme shall be deemed to have been a payment in lieu of long service leave under the provisions of this Act.

The Secretary shall not grant an exemption under this section in respect of any scheme that does not provide for the granting of long service leave, as such, to the employees to whom the scheme relates.

Subsection (4) does not apply in respect of a scheme in respect of which an exemption was in force immediately before the commencement of the Long Service Leave Act 1964 or any scheme varying, altering, or amending that scheme.

The Secretary – may of his own motion; and shall, on the application of an organization of employers or of employees or of the relevant employer – review any exemption granted by him pursuant to this section before the commencement of the Long Service Leave Act 1964.

If, on such a review as is mentioned in subsection (6), the Secretary is of the opinion that the benefits under the scheme that is the subject of the exemption are not as favourable as those prescribed by this Act or that it is no longer in the best interests of the employees to whom the scheme relates that the exemption should continue to operate, the Secretary may revoke the exemption or may determine that the exemption shall continue to operate only upon and subject to such terms and conditions as he may impose.

An exemption or the renewal of an exemption granted under the Long Service Leave Act 1956 shall be deemed to have been granted under this Act at the time it was actually granted.

Subject to this Act, an employee is entitled to long service leave on ordinary pay in respect of continuous employment with an employer.

In this section, employee means an employee who is not a mining employee.

Subject to subsection (4), the period of long service leave to which an employee is entitled under this Act is – on the completion by an employee of at least 10 years' continuous employment with his employer– 8 2/3 weeks' long service leave in respect of the first 10 years' continuous employment with his employer; and 4 1/3 weeks' long service leave in respect of each additional 5 years' continuous employment with his employer; and on the termination of his employment, an additional period of long service leave in respect of the number of years' continuous employment with his employer since the last accrual of entitlement to long service leave under the foregoing provisions of this paragraph, such period of long service leave as bears the same proportion to 8 2/3 weeks as that number of years bears to 10 years; or in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 7 years', but has not completed 10 years', continuous employment with his employer such period of long service leave as bears the same proportion to 8 2/3 weeks as the total period of the employee's continuous employment with his employer bears to 10 years.

Subsection (2)(b) applies to – an employee who attains the age for retirement; an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment; an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment; and an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee.

For the purposes of subsection (3), an employee who terminates his employment on or after becoming eligible for a service pension under the Veterans' Entitlements Act 1986 of the Commonwealth shall be deemed to have attained the age for retirement.

In the case of an employee whose period of employment with an employer began before the commencement of the Long Service Leave Act 1964 and whose period of continuous employment with his employer would entitle him to long service leave under this section, the period of long service leave to which that employee is entitled is the total of the following periods, namely:a period calculated on the basis of 13 weeks for 20 years' continuous employment before the date of the commencement of that Act; and a period calculated on the basis of 13 weeks for 15 years' continuous employment on and after that date.

In this section, employee means a mining employee.

Subject to subsections (3) and (4), the period of long service leave to which an employee is entitled under this Act is – on the completion by an employee of at least 10 years' continuous employment with his employer – 13 weeks' long service leave in respect of every period of 10 years' continuous employment with his employer; and on the termination of his employment, an additional period of long service leave in respect of the number of years' continuous employment with his employer since the last accrual of entitlement to long service leave under subparagraph (i), being such a period of long service leave as bears the same proportion to 13 weeks as that number of years bears to 10 years; or in the case of an employee to whom this paragraph applies by virtue of subsection (3) who has completed 5 years', but has not completed 10 years', continuous employment with his employer, such a period of long service leave as bears the same proportion to 13 weeks as the total period of the employee's continuous employment with his employer bears to 10 years.

Subsection (2)(b) applies to – an employee who attains the age for retirement; an employee whose employment is terminated on account of illness of such a nature as to justify the termination of that employment; an employee who terminates his employment on account of incapacity or domestic or other pressing necessity of such a nature as to justify the termination of that employment; and an employee whose employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee.

For the purposes of subsection (3), an employee who terminates his employment on or after becoming eligible for a service pension under the Veterans' Entitlements Act 1986 of the Commonwealth shall be deemed to have attained the age for retirement.

In the case of an employee whose period of employment with an employer began before the date fixed by proclamation under section 2 (2) of the Long Service Leave Amendment Act 1980 (in this subsection referred to as "the proclaimed date") and whose period of continuous employment with his employer would entitle him to long service leave under this section, the period of long service leave to which that employee is entitled is the total of the following periods:a period calculated on the basis of 13 weeks for 20 years' continuous employment before the date of the commencement of the Long Service Leave Act 1964; a period calculated on the basis of 13 weeks for 15 years' continuous employment on and after the date referred to in paragraph (a) and before the proclaimed date; a period calculated on the basis of 13 weeks for 10 years' continuous employment on and after the proclaimed date.