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This is a Bill, not an Act. For current law, see the Acts databases.
LONG SERVICE LEAVE (COMMUNITY SECTOR) AMENDMENT BILL 2009
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Long
Service Leave (Community Sector) Amendment Bill 2009
Contents
Page
2009
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Long Service Leave
(Community Sector) Amendment Bill 2009
A Bill for
An Act to amend the
Long Service Leave
(Portable Schemes) Act 2009
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Long Service Leave (Community Sector) Amendment Act
2009.
This Act commences on 1 July 2010.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
This Act amends the Long Service Leave (Portable Schemes)
Act 2009.
4 What
is a covered industry?New section 6
(c)
before the notes, insert
(c) the community sector industry.
insert
Note 3 Community sector industry—see sch 2A, s
2A.3.
6 When
is work outside the ACT work?Section
13 (2), new note 4
insert
Note 4 Community sector work—see sch 2A, s
2A.2.
7 Removing
people from workers registerSection 65
(3)
substitute
(3) However, subsection (2) (b) does not apply if the person would, but
for the person ceasing to be registered, have been entitled to payment for the
period under—
(a) schedule 1, section 1.8 (Entitlement to payment instead of
leave—building and construction industry); or
(b) schedule 2, section 2.8 (Entitlement to payment instead of
leave—contract cleaning industry); or
(c) schedule 2A, section 2A.9 (Entitlement to payment instead of
leave—community sector industry).
8 Benefits
under other laws—electionSection 88
(1) (c)
omit
the contract cleaning industry
substitute
a covered industry
insert
Schedule 2A Long service leave
payments—community sector industry
2A.1 Long service leave—community sector
industry
A registered worker for the community sector industry is entitled to long
service leave in accordance with this schedule.
2A.2 What is community sector
work?
(1) Work is community sector work if it
is—
(a) work carried out in the ACT in the community sector industry other
than work declared under subsection (2); or
(b) work, or an activity, declared to be work in the community sector
industry under section 11.
(2) The Minister may declare work not to be work for the community sector
industry.
(3) A declaration is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
2A.3 What is the community sector industry?
The community sector industry is—
(a) in relation to the ACT—
(i) the industry of providing child care services; and
(ii) the industry of providing the following residential care
services:
(A) care accommodation or homes for disadvantaged people where nursing or
medical care is not provided as a major service;
(B) residential corrective services for juvenile offenders; and
(iii) the industry of providing non-residential care welfare services
industry (including fund-raising services for welfare services) not included in
other community sector industries; and
(iv) the industry of providing employment placement services for disabled
people; and
(v) the industry of providing community service advocacy services; and
(b) in relation to a reciprocating State—the community sector
industry within the meaning of the corresponding law of the State.
2A.4 Court or tribunal—not
employer
A court or tribunal is not an employer for the community sector
industry.
Note A covered industry schedule may prescribe a person not to be an
employer for the covered industry—see s 7 (3).
2A.5 Years of recognised service—community
sector industry
A registered worker for the community sector industry is taken to have
completed a year of recognised service for each 365 days of recognised
service.
2A.6 Long service leave formula—community
sector industry
The following is the long service leave formula for the
community sector industry:
365
RS
0.8667
W
×
=
RS means the registered worker’s number of days
recognised service.
W means the number of weeks long service leave held by the
registered worker.
2A.7 Amount of leave—community sector
industry
(1) A registered worker for the community sector industry who has
5 years or more of recognised service is entitled to the number of days of
workers long service leave worked out in accordance with the long service leave
formula for the community sector industry.
(2) A registered worker for the community sector industry is entitled to
long service leave for additional days of service worked out in accordance with
the long service leave formula if the worker—
(a) becomes entitled to long service leave under this Act; and
(b) is credited with the additional days in the workers register after
becoming entitled to long service leave.
(3) A registered worker for the community sector industry who has attained
the minimum recognised service through working for a registered employer before
the commencement day does not accrue recognised service for the purposes of the
long service leave formula if the service was before the commencement
day.
2A.8 Grant of leave by employers—community
sector industry
(1) The employer of a registered employee for the community sector
industry commits an offence if—
(a) the employee’s long service leave accrues; and
(b) the employer does not grant the employee the long service leave before
the end of the prescribed period.
Maximum penalty: 50 penalty units.
(2) Long service leave must not be granted for a period of less than
2 weeks.
(3) The employer of a registered employee for the community sector
industry commits an offence if—
(a) the employer has granted the employee long service leave;
and
(b) the employer does not give the employee a written statement of the day
when the long service leave starts and ends—
(i) 2 months before the day when the long service leave starts;
or
(ii) if the employer and employee agree on a shorter period—before
the start of the period agreed.
Maximum penalty: 50 penalty units.
(4) An offence against this section is a strict liability
offence.
(5) In this section:
prescribed period, for long service leave accrued by a
registered employee for the community sector industry of an employer,
means—
(a) 6 months after the day the leave accrues; or
(b) if the governing board has allowed, on application by the employer or
the employee, a period longer than 6 months—the period allowed by the
board; or
(c) if the employer and employee agree on a period longer than
6 months—the period agreed.
2A.9 Entitlement to payment instead of
leave—community sector industry
(1) This section applies if a registered worker for the community sector
industry has 55 days recognised service and any of the following apply to the
worker:
(a) the worker has left the industry because of total incapacity;
(b) the worker has reached the prescribed retiring age;
(c) the worker has died.
(2) If the governing board is satisfied that this section applies to the
worker, the worker is entitled to payment instead of long service leave for the
number of weeks long service leave worked out in accordance with the long
service leave formula.
(3) In this section:
prescribed retiring age means—
(a) for a registered worker who has been granted a service pension under
the Veterans’ Entitlements Act 1986 (Cwlth), section 38
(Eligibility for partner service pension)—the age at which the worker
first receives payment of the service pension; or
(b) in any other case—55 years.
2A.10 Payments for leave—community sector
industry
(1) A registered employee for the community sector industry who has been
granted long service leave under section 2A.7, or a registered contractor who
for the industry is entitled to long service leave, may apply to the authority
for payment for the leave.
Note If a form is approved under s 92 for an application, the form
must be used.
(2) If the governing board is satisfied that the applicant is entitled to
long service leave under this Act, the authority must pay to the applicant the
amount payable under section 2A.12 (How are leave payments worked out for the
community sector industry?).
(3) The authority must pay an applicant any amount payable under
subsection (2) 7 days after the day the applicant becomes entitled to the
long service leave if—
(a) the application is made 14 days before the applicant becomes entitled
to long service leave under this Act; and
(b) the applicant asks in the application for the amount to be
paid.
2A.11 Payments instead of leave—community
sector industry
(1) If a registered worker for the community sector industry is entitled
to payment instead of long service leave under this Act, the worker may apply to
the authority for the payment.
Note If a form is approved under s 92 for an application, the form
must be used.
(2) An application by a registered employee for the community sector
industry on the ground that the employee has ceased work in the community sector
industry because of total incapacity must be accompanied by a certificate of a
doctor certifying that the employee is totally incapacitated for employment in
the industry.
(3) The governing board may require an applicant mentioned in
subsection (2) to submit himself or herself to a medical examination by a
doctor chosen by the board for that purpose from a panel of 3 doctors
nominated by the Australian Capital Territory Branch of the Australian Medical
Association.
(4) All fees or charges payable for a medical examination under
subsection (3) are to be paid by the authority.
(5) If an applicant fails, without reasonable excuse, to comply with a
requirement under subsection (3), the governing board may refuse the
application.
(6) If the governing board is satisfied that the applicant is entitled to
payment instead of long service leave under this Act, the authority must pay to
the applicant the amount payable under section 2A.10.
2A.12 How are leave payments worked out for the
community sector industry?
(1) For section 2A.10 (Payments for leave—community sector industry)
and section 2A.11 (Payments instead of leave—community sector industry),
the amount payable to a registered worker for, or instead of, long service leave
is—
(a) for any part of the entitlement to long service leave accrued as an
employee—the amount worked out in accordance with section 2A.13;
and
(b) for any part of the entitlement to long service leave accrued as a
contractor—the amount worked out in accordance with
section 2A.14.
(2) For subsection (1)—
(a) long service leave must be taken in the reverse order in which it
accrued; and
(b) if payment instead of long service leave is being made—the
payment is made in relation to the leave in the order in which it accrued.
Example
Darla has 5 years of service in the community sector industry giving her an
entitlement to 4.335 weeks long service leave. She first worked in the industry
as a registered employee and accrued 2 weeks of the entitlement in that
capacity. Darla then worked as a registered contractor and accrued 2.335 weeks
of the entitlement in that capacity.
Darla decides to take 4.335 weeks long service leave. The payment for the
leave is the total of the following amounts:
• the amount calculated under s 2A.13 where ‘D’ is 842
(ie it took 842 days service as a registered employee to accrue the first 2
weeks of her long service leave entitlement);
• the amount calculated under s 2A.14 which is the total of the
amounts paid to the authority under s 57 for her 983 days work as a registered
contractor (ie it took that period of service as a registered contractor to
accrue the next 2.335 weeks of her long service leave entitlement) and the
interest under s 2A.14 on those amounts.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
2A.13 Leave payments for service as registered
employee—community sector industry
(1) For section 2A.12, the amount payable to a registered worker for long
service leave for service accrued as a registered employee for the community
sector industry is the amount worked out as follows:
R
365
D
0.8667
×
×
(2) In this section:
D means the number of days service credited to the registered
worker in the workers register to which the payment relates.
designated day means—
(a) if the registered worker is taking long service leave—the day
the leave begins; and
(b) if the registered worker is being paid instead of taking long service
leave—the day the payment is made.
R is the highest of the weekly averages of the ordinary
remuneration received by the registered worker during each of the following
periods that applies to the worker:
(a) the most recent 2 quarters of service as a registered worker before
the designated day;
(b) the most recent 4 quarters of service as a registered worker before
the designated day;
(c) the most recent 20 quarters of service as a registered worker before
the designated day.
Example—R
Harry has worked in the community sector industry for 5 years. The periods
in par (a), (b) and (c) apply to Harry because he has completed more than
20 quarters (or 5 years) relevant service.
Harry’s average weekly income for the 2 quarters before the
designated day is $283. His weekly averages for the 4 and 20 quarters before
the designated day are $427 and $375, respectively. Accordingly, R is
$427 because it is the highest of the weekly averages.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
2A.14 Leave payments for service as registered
contractor—community sector industry
(1) For section 2A.12 (How are leave payments worked out for the community
sector industry?), the amount payable to a registered worker for the community
sector industry for long service leave for service accrued as a registered
contractor is the total of the following for the service:
(a) amounts paid by the worker to the authority under section 56
(Determination of levy—contractors);
(b) interest at the determined rate worked out from the date of receipt of
each amount paid under section 56 until the designated day for the
leave.
(2) The governing board must determine an interim rate of interest from
time to time before the determination of the rate under
subsection (1).
(3) The determined rate of interest must—
(a) be worked out after the end of each financial year for the previous
financial year; and
(b) take into account the expenses incurred in administering the
authority; and
(c) be at least 75% of the rate of interest, expressed as a percentage,
earned by the authority worked out as follows:
(4) In this section:
designated day means—
(a) if the registered worker is taking long service leave—the day
the leave begins; and
(b) if the registered worker is being paid instead of taking long service
leave—the day the payment is made.
FB means the amount of the total equity of the authority at
the end of the financial year immediately before the financial year for which
the rate is being determined.
FE means the amount of the total equity of the authority at
the end of the financial year for which the rate is being determined.
I is the income derived from the investment of the
authority’s money in the financial year for which the rate is being
determined.
total equity, in relation to the authority, means the total
assets less the total liabilities of the authority worked out from the audited
balance sheet of the authority for the relevant financial year.
2A.15 Payments by authority on reciprocal
authority’s behalf—community sector industry
(1) This section applies to a registered worker for the community sector
industry who has a long service leave entitlement under this Act and a
corresponding law.
(2) The worker may apply to the authority for payment of a long service
leave entitlement worked out in accordance with the corresponding law.
Note If a form is approved under s 92 for an application, the form
must be used.
(3) The authority must pay the worker the amount of the entitlement worked
out in the way stated in the corresponding law if the authority is authorised by
the reciprocal authority to make the payment.
2A.16 Payments by reciprocal authority on
authority’s behalf—community sector industry
(1) This section applies if, under a corresponding law, a reciprocal
authority pays to a person an amount that, but for the payment, would have been
payable for a long service leave entitlement under this Act for work done in the
contract cleaning industry.
(2) If the authority is notified about the payment and is satisfied the
payment was properly made, the authority must reimburse the reciprocal authority
the amount worked out as follows:
R
365
D
0.8667
×
×
(3) If the authority makes a reimbursement under subsection (2), the
obligation of the authority to make the payment to the person for the
entitlement is discharged.
(4) In subsection (2):
D means the number of days service credited to the registered
employee in the workers register and to which the payment relates.
R is the amount decided by the reciprocal authority as the
weekly amount payable to the worker for the service credited to the worker in
the State.
2A.17 Service credit—community sector
industry—s 64
(1) A registered worker for the community sector industry is to be
credited in the workers register with 1 day’s service for each day
(including a day when the worker does not carry out community sector industry
work) in each service period of the worker on or after the worker’s
registration day.
Example
A day when a worker attends a court in accordance with a summons to serve
as a juror or a subpoena to give evidence or produce documents is a day in the
worker’s period of service when the worker does not carry out community
sector industry work.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However a registered worker in the community sector industry must not,
in a financial year, be credited with more than 365 days of service.
2A.18 Records of payments and service—community
sector industry
(1) This section applies if the authority—
(a) pays an amount to a registered worker for the community sector
industry under section 2A.10 (Payments for leave—community sector
industry) or section 2A.11 (Payments instead of leave—community sector
industry); or
(b) reimburses a reciprocal authority under section 2A.16 (Payments
by reciprocal authority on authority’s behalf—community sector
industry) for an amount paid to a registered worker.
(2) The authority must delete from the workers register the details
relating to the service period for which the worker has been paid.
(3) However, the authority must keep another record of—
(a) the period of the service; and
(b) the amount paid to the worker for long service leave or instead of
long service leave; and
(c) the period of long service leave (if any) granted to or taken by the
worker.
2A.19 Public holidays etc not to count as
leave—community sector industry
(1) This section applies if a public holiday or industry holiday falls
during a period of long service leave taken by a registered worker for the
community industry.
(2) The period of long service leave is increased by 1 day for each public
holiday and industry holiday.
(3) In this section:
determination includes a variation, suspension,
interpretation or cancellation of a determination.
industry holiday means a day that is a holiday for people
employed in the community sector industry under an award, or a determination or
industrial agreement, under the Workplace Relations Act 1996
(Cwlth).
10 Schedule
3, item 18, column 2
substitute
sch 1, 1.7 (5) (b), sch 2, 2.7 (5) (b) or sch 2A, 2A.8 (5)
(b)
11 Schedule
3, item 19, column 2
substitute
sch 1, 1.8 (4), sch 2, 2.8 (3) or sch 2A, 2A.9 (2)
12 Schedule
3, item 20, column 2
substitute
sch 1, 1.9 (2), sch 2, 2.9 (2) or sch 2A, 2A.10 (2)
13 Schedule
3, item 21, column 2
substitute
sch 1, 1.10 (6), sch 2, 2.10 (6) or sch 2A, 2A.11 (6)
14 Schedules
2A and 3 (as amended)
renumber as schedules 3 and 4
15 Dictionary,
new definitions of community sector industry and community sector
work
insert
community sector industry—see schedule 2A, section
2A.3.
community sector work—see schedule 2A, section
2A.2.
16 Dictionary,
definition of covered industry schedule
substitute
covered industry schedule means—
(a) for the building and construction industry—schedule 1;
and
(b) for the contract cleaning industry—schedule 2; and
(c) for the community sector industry—schedule 2A.
17 Dictionary,
definition of long service leave formula
substitute
long service leave formula—
(a) for the building and construction industry—see schedule 1,
section 1.5; and
(b) for the contract cleaning industry—see schedule 2, section 2.5;
and
(c) for the community sector industry—see schedule 2A,
section 2A.6.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2009.
2 Notification
Notified under the Legislation Act on 2009.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2009
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