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Bill homepage (legislation.vic.gov.au)The purpose of this Act is to repeal the Construction Industry Long Service Leave Act 1983 and provide for the scheme established by that Act to be administered in accordance with a trust deed by a company incorporated under the Corporations Law[1].
This Part comes into operation on the day on which this Act receives the Royal Assent.
Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
If a provision referred to in subsection (2) does not come into operation before 1 January 1998, it comes into operation on that day.
In this Act—
commencement day means the day on which section 20 comes into operation;
S. 3(1) def. of director amended by No. 44/2001 s. 3(Sch. item 23).
director, in relation to a corporation, has the same meaning as in section 9 of the Corporations Act;
existing staff member means a person who, immediately before the commencement day—
was an officer or employee under the Public Sector Management Act 1992 assisting the former Board in the administration of the former Act; or
was employed by the former Board;
former Act means the Construction Industry Long Service Leave Act 1983 as in force immediately before its repeal;
former Board means the Construction Industry Long Service Leave Board established under Part II of the former Act;
former fund means the Construction Industry Long Service Leave Fund established under section 9 of the former Act;
fund means the Construction Industry Long Service Leave Fund established under the trust deed;
person includes an unincorporated body and a partnership;
trust deed means the trust deed executed by CoINVEST Limited A.C.N. 078 004 985 as trustee on 1 April 1997 as amended and in force for the time being;
trustee means CoINVEST Limited A.C.N. 078 004 985 or any new trustee appointed under, and in accordance with, the trust deed.
Words and expressions used in the rules set out in Schedule 2 to the trust deed and in this Act have the same respective meanings in this Act as they have in those rules as amended and in force for the time being.
Subsection (2) does not apply to the extent that the context or subject-matter otherwise indicates or requires.
Part 2—Construction Industry Long Service Leave Fund
S. 4(1) substituted by No. 90/2004 s. 4(1).
An employer must pay to the trustee a long service leave charge in respect of every worker employed by the employer to perform construction work in the construction industry.
S. 4(1A) inserted by No. 90/2004 s. 4(1).
A working sub-contractor (who has made an election referred to in subsection (4)) must pay to the trustee a long service leave charge in respect of construction work performed by the working sub-contractor in the construction industry.
The date by which a long service leave charge is payable, the period in respect of which it is payable, the amount of charge payable and the method by which that amount is to be calculated are as determined from time to time by the trustee in accordance with the trust deed.
The long service leave charge imposed on an employer in respect of a worker must not be more than 3% of the ordinary pay of the worker.
S. 4(4) amended by No. 90/2004 s. 4(2).
The trust deed must permit a working sub-contractor to elect to pay a long service leave charge in respect of construction work performed by the working sub-contractor in the construction industry and to revoke that election at any time.
The trust deed may provide for long service leave charges to be payable at different rates in respect of—
workers and working sub-contractors;
S. 4(5)(b) amended by No. 90/2004 s. 4(3).
different classes of construction work performed by workers or working sub-contractors in the construction industry.
The trustee may recover any amount of long service leave charge owing to the trustee by an employer or working sub-contractor, together with interest in accordance with subsection (2), as a debt in any court of competent jurisdiction.
S. 5(1A) inserted by No. 90/2004 s. 5.
The trustee may recover an amount referred to in subsection (1) from a related body corporate (within the meaning of the Corporations Act) of an employer or working sub-contractor.
Interest at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 is payable on any amount owing to the trustee calculated from the date on which the amount becomes due until the date on which the amount is paid or otherwise recovered under subsection (1).
Every worker is entitled to long service leave, and to be paid benefits out of the fund, in respect of continuous service in the construction industry.
Every working sub-contractor who has paid long service leave charges is entitled to be paid benefits out of the fund in respect of continuous service in the construction industry.
The amount of the entitlement and the method by which that amount is to be calculated are as determined from time to time by the trustee in accordance with the trust deed.
The trustee must not, without the prior approval of the Governor in Council, exercise any power, authority or discretion given to the trustee by the trust deed the exercise of which would have the effect of enlarging the class of persons capable of being paid benefits out of the fund.
Without limiting subsection (1), that subsection—
has effect with respect to any addition to, or any amendment, modification, variation, deletion, revocation, substitution or replacement of, the whole or any part of the trust deed by which—
the meaning or scope of the expressions "construction work" or "construction industry" is enlarged, whether directly or indirectly; or
an award is prescribed for the purposes of the fund;
S. 7(2)(b) amended by No. 90/2004 s. 6(1).
does not have effect with respect to a decision as to whether or not a particular person is within a class of persons then capable of being paid benefits out of the fund (whether as a result of an amendment of a prescribed award or otherwise) or as to the amount of any benefit to which such a person is entitled;
S. 7(2)(c) inserted by No. 90/2004 s. 6(2).
does not have effect with respect to a decision as to the amount of any benefit capable of being paid out of the fund.
An employer whose name is not included in the register of employers or the register of working sub-contractors kept by the trustee in accordance with the trust deed must not for more than 5 days in any month—
S. 8(1)(a) amended by No. 90/2004 s. 7(1).
employ workers under a contract of employment to perform construction work in the construction industry; or
S. 8(1)(b) amended by No. 90/2004 s. 7(2).
being a principal contractor, engage any other employer or working sub-contractor by contract (not being a contract of employment) to perform construction work in the construction industry.
S. 8(2) amended by No. 90/2004 s. 7(3).
A working sub-contractor whose name is not included in the register of working sub-contractors kept by the trustee in accordance with the trust deed must not, for more than 5 days in any month, perform construction work as a working sub-contractor in the construction industry.
S. 8(3) amended by No. 90/2004 s. 7(4).
A worker whose name is not included in the register of workers kept by the trustee in accordance with the trust deed must not, for more than 5 days in any month, perform construction work as a worker in the construction industry.
An employer must—
S. 9(1)(a) amended by No. 90/2004 s. 8(1).
in accordance with the trust deed, keep records containing information relating to workers employed to perform construction work in the construction industry;
retain any such record for at least 7 years after the last entry was made in it;
S. 9(1)(c) amended by No. 90/2004 s. 8(2).
in accordance with the trust deed, send to the trustee from time to time information relating to workers employed to perform construction work in the construction industry.
An employer must not make any false or misleading statement in, or any material omission from, any record that the employer is required by subsection (1)(a) to keep.
In a proceeding for an offence against subsection (2) it is a defence to the charge for the accused to prove that the statement or omission resulted from an error made in good faith.
The trustee may, by notice in writing given to an employer or a working sub-contractor or any person whom the trustee believes to be an employer or a working sub-contractor, require that person—
to give any information to the trustee; or
to produce to the trustee any document under that person's control—
that is relevant to the ascertainment by the trustee of that or any other person's rights or liabilities under the trust deed.
A notice under subsection (1) must specify—
the time or times, not sooner than 28 days after the date of the notice, at which; and
the form and manner in which—
the information is to be given or the document produced.
A person to whom a notice is given under subsection (1) must not—
refuse or fail to comply with the notice; or
in response to the notice give information that is false or misleading in a material particular.
A person is not excused from complying with a notice under subsection (1) on the ground that compliance might tend to incriminate the person but, if the person in writing given to the trustee before complying with the notice, claims that compliance might tend to incriminate the person, any information given or document produced by the person in compliance with the notice is not admissible in evidence against the person in criminal proceedings, other than proceedings under this Act or other proceedings in respect of the falsity of the information or document.
In a proceeding for an offence against subsection (3)(b) it is a defence to the charge for the accused to prove that at the time at which the offence is alleged to have been committed, the accused believed on reasonable grounds—
in the case of false information—that the information was true; or
in the case of misleading information—that the information was not misleading.
Irrespective of whether a proceeding is commenced for an offence against section 10(3)(a), the trustee may apply to the Magistrates' Court for an order directing a person to whom a notice was given under section 10(1) to comply with the notice within a specified time.
On an application under subsection (1) the Magistrates' Court must, if it considers that there are reasonable grounds for believing that the person has refused or failed to comply with the notice, grant the application unless it considers that in the circumstances there are reasonable grounds for not doing so.
In the application of section 135 of the Magistrates' Court Act 1989 to an order under this section—
subsection (3)(a) of section 135 has effect as if it provided for a fine of not more than 10 penalty units for every day during which the default continues; and
subsection (4)(b) of section 135 has effect as if it provided for maximum aggregate sums of 400 penalty units.
S. 11A inserted by No. 90/2004 s. 9.
Despite anything to the contrary in any other Act, if the trustee is a party to a proceeding—
for the recovery of long service leave charges under section 5; or
for an offence against section 10(3)(a)—
the trustee may appear in the proceeding by an employee of the trustee authorised by the trustee to do so.
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