Commonwealth Numbered Acts Commonwealth Numbered Acts1 Interpretation
(1) In this Schedule:
Australian workplace agreement means a written agreement, between an employer and a person whose employment was subject to the agreement, that would have been recognised as an "Australian workplace agreement", "AWA" or "pre-reform AWA" under a law of the Commonwealth at any time before 1 January 2012.
applicable award-derived long service leave terms has the meaning given by subsection 113(3) of the Fair Work Act 2009 .
award employee means a person who was covered by section 113 of the Fair Work Act 2009 at any time on or after 1 January 2010, but does not include a non-award employee.
new law means the Coal Mining Industry (Long Service Leave Funding) Act 1992 , as amended by Schedule 1 to this Act.
non-award employee means a person who was covered by Schedule 2 to the Coal Mining Industry (Long Service Leave Funding) Amendment Act 2009 (as in force immediately before 1 January 2012) at any time on or after 1 January 2010.
(2) An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.
Part 2 -- Recognition of long service leave before 1 January 2012
2 Recognition of long service leave--eligible employees
(1) This item applies if a person is an eligible employee at any time in the calendar year beginning on 1 January 2012.
(2) The Corporation must calculate:
(a) the period, or periods, of service completed by the employee between 1 January 2000 and 31 December 2011 (both dates inclusive) as if the period, or periods, were a period, or periods, of qualifying service completed by the employee after 1 January 2012; and
(b) if the period of qualifying service is, or the periods of qualifying service add up to, at least 8 years--the employee's entitlement (in hours) to long service leave under Part 5A of the new law in respect of that qualifying service.
Note: If the eligible employee is an award employee, see also item 4 of this Schedule.
3 Recognition of long service leave--former eligible employees
(1) This item applies if:
(a) a person is not an eligible employee at any time in the calendar year beginning on 1 January 2012; and
(b) the person has an entitlement, or may become entitled, to long service leave in respect of their service in the black coal mining industry before 1 January 2012.
(2) If the person wishes the Corporation to recognise service before 1 January 2012, the person must provide the Corporation with the following information, in writing:
(a) the period or periods of the person's employment as an eligible employee between 1 January 2000 and 31 December 2011 (both dates inclusive);
(b) the type of employment of the person (for example, whether full-time, part-time or casual);
(c) the person's employer for each period of employment.
(3) The person must provide the information on or before 30 September 2012 (or such later date prescribed by the regulations).
(4) If a person provides the Corporation with information, as mentioned in subitem (2), the Corporation must:
(a) verify the information; and
(b) if the information is correct--calculate:
(i) the period, or periods, of service completed by the person between 1 January 2000 and 31 December 2011 (both dates inclusive) as if the period, or periods, were a period, or periods, of qualifying service completed after 1 January 2012; and
(ii) if the period of qualifying service is, or the periods of qualifying service add up to, at least 8 years--the person's entitlement (in hours) to long service leave under Part 5A of the new law in respect of that qualifying service; and
(c) if the information is not correct--take steps to resolve:
(i) what period, or periods, of service have been completed by the person between 1 January 2000 and 31 December 2011 (both dates inclusive); and
(ii) what entitlement the person has (in hours) to long service leave under Part 5A of the new law in respect of that service;
so that the calculation mentioned in paragraph (b) can be made in relation to the person.
4 Recognition of long service leave before 1 January 2000
To avoid doubt, items 2 and 3 of this Schedule do not affect any entitlement of an award employee to long service leave arising from applicable award-derived long service leave terms (as preserved by section 113 of the Fair Work Act 2009 ) in respect of service in the black coal mining industry before 1 January 2000.
5 Certain service not recognised
When making a calculation required by item 2 or 3 of this Schedule in relation to a person, the Corporation must disregard:
(a) any period during which the person's employment was subject to an Australian workplace agreement, if the agreement specifically excluded an entitlement to long service leave for service in the black coal mining industry; and
(b) any period of long service leave taken by the person:
(i) for service in the black coal mining industry; or
(ii) under State law;
if an application to take the leave was made before 1 January 2012.
Part 3 -- Keeping records of recognised long service leave
6 Records relating to eligible employees
(1) This item applies in relation to a person in respect of whom the Corporation has made a calculation under item 2 of this Schedule.
(2) The Corporation must notify the person, on or before 30 September 2012 (or such later date prescribed by the regulations), in writing, of the records it has relating to:
(a) the person's employment as an eligible employee before 1 January 2012; and
(b) the person's employer or employers before that date; and
(c) the qualifying service completed by, and the long service leave entitlement of, the person, as calculated under item 2 of this Schedule.
(3) If a person receives notification from the Corporation, as mentioned in subitem (2), and the person considers that the information is incorrect or incomplete, the person may provide the Corporation with the information necessary to ensure that the Corporation's records are correct.
(4) If subitem (3) applies, the Corporation must:
(a) verify the information provided by the person; and
(b) decide whether the person's records need to be corrected; and
(c) notify the person, in writing, whether the person's records have been corrected, and if they have, of the records the Corporation now has in relation to the person.
(5) If the Corporation notifies a person under this item, the Corporation must also give a copy of the notification to the person's current employer or employers.
7 Records relating to former eligible employees
(1) This item applies in relation to a person in respect of whom the Corporation has made a calculation under item 3 of this Schedule.
(2) The Corporation must notify the person, on or before 31 December 2012 (or such later date prescribed by the regulations), in writing, of the records it has relating to:
(a) the person's employment as an eligible employee before 1 January 2012; and
(b) the person's employer or employers before that date; and
(c) the qualifying service completed by, and the long service leave entitlement of, the person, as calculated under item 3 of this Schedule.
8 Interaction with the new law
(1) Subject to item 9 of this Schedule, the new law applies in relation to a person who is covered by Part 2 of this Schedule as if:
(a) the person's period, or periods, of service, as calculated by the Corporation under that Part and/or arising from applicable award-derived long service leave terms, is a period, or are periods, of qualifying service; and
(b) where the period of qualifying service is, or the periods of qualifying service add up to, at least 8 years--any entitlement of the person to long service leave (in hours), as calculated by the Corporation under Part 2 of this Schedule and/or arising from applicable award-derived long service leave terms, is an entitlement to long service leave under Part 5A of the new law in respect of that qualifying service.
(2) For the purpose of working out the LSL credit of a person who is:
(a) an eligible employee; or
(b) a former eligible employee who becomes an eligible employee again on or after 1 January 2012;
the number of hours of long service leave that the person is entitled to for each week of qualifying service, as calculated by the Corporation under Part 2 of this Schedule and/or arising from applicable award-derived long service leave terms, is to be added to the number of hours of long service leave mentioned in paragraph 39AB(5)(a) of the new law.
9 Records created after 1 January 2012
If, after 1 January 2012, a record is created in respect of a person mentioned in subitem 3(1) who has not provided the Corporation with information within the time mentioned in subitem 3(3), subitem 3(4) and item 5 of this Schedule do not apply to calculating:
(a) the period, or periods, of service completed by the person before 1 January 2012; and
(b) the person's entitlement (in hours) to long service leave under Part 5A of the new law in respect of that service.
10 Actuarial advice relating to sufficiency of fund
(1) In January 2013, (or such later month before 1 January 2015 prescribed by the regulations), the Board must seek advice from an actuary as to:
(a) whether the rate of payroll levy imposed (at the time the advice is given) would be adequate to ensure that the Fund will be sufficient to reimburse employers in accordance with the Employer Reimbursement Rules; and
(b) if not, the rate that would be so adequate.
(2) To avoid doubt, advice sought under this item satisfies the requirements of subsections 43(1) and (2) of the new law for the period 1 January 2012 to 31 December 2014.
11 Transitional regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Schedule to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.
(2) The regulations may prescribe matters of a transitional nature (including matters of an application or saving nature):
(a) arising out of the enactment of Part 5A of the new law; or
(b) relating to amounts that are, or may become, payable to employers under Part 7 of the new law.
(3) Despite subsection 12(2) of the Legislative Instruments Act 2003 , regulations made under this item may be expressed to take effect from a day before the regulations are registered under that Act.
(4) Subitem (2) does not limit subitem (1).