Commonwealth Numbered Acts Commonwealth Numbered Acts
Coal Mining Industry (Long Service Leave) Administration Act 1992
1 Subsection 4(1)
Insert:
"quarter " means a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April.
2 After subsection 39A(3)
Insert:
(3A) If:
(a) subsection (3) applies in relation to a casual employee for a week (the initial week ); and
(b) apart from this subsection, subsection (3) does not apply in relation to that employee for the next week (the relevant week ) after the initial week; and
(c) the relevant week is not otherwise a period of qualifying service for that employee; and
(d) subsection (3) applies in relation to that employee for the next week after the relevant week;
then, for the purposes of subsection (2), that employee is taken to have been an eligible employee for the whole of the relevant week in the capacity of a casual employee.
Note: The effect of this subsection is that the relevant week will be a period of qualifying service for that employee.
(a) subsection (3) applies in relation to a casual employee for a week beginning in a quarter; and
(b) apart from this subsection, there are one or more later weeks beginning in that quarter that are not a period of qualifying service for that employee;
then, for the purposes of subsection (2), rules made under subsection (3C) may set out the circumstances in which that employee is taken to have been an eligible employee for the whole of one or more of those later weeks in the capacity of a casual employee.
Note: The effect of this subsection is that, if any rules are made, the one or more of those later weeks will be periods of qualifying service for that employee.
(3C) The Minister may, by legislative instrument, make rules for the purposes of subsection (3B).
3 Subsection 39AA(2) (subparagraph (c)(i) of the definition of working hours )
Repeal the subparagraph, substitute:
(i) the number of hours for the week worked out under whichever of subsections (3) and (4) is applicable;
4 At the end of section 39AA
Add:
Employee is a casual employee for all weeks beginning in a quarter
(3) If all weeks beginning in a quarter are applicable weeks for the employee, the number of hours for each of those weeks for the purposes of subparagraph (c)(i) of the definition of working hours in subsection (2) is the result of dividing:
(a) the total number of hours worked by the employee as a casual employee for all of those weeks; by
(b) the number of weeks beginning in the quarter.
Employee is a casual employee for some but not all weeks beginning in a quarter
(4) If some but not all weeks beginning in a quarter are applicable weeks for the employee, the number of hours for each of those applicable weeks for the purposes of subparagraph (c)(i) of the definition of working hours in subsection (2) is the result of dividing:
(a) the total number of hours worked by the employee as a casual employee for all of those applicable weeks; by
(b) the number of applicable weeks beginning in the quarter.
What is an applicable week?
(5) A week beginning in a quarter is an applicable week for an employee if:
(a) the employee is a casual employee at any time during the week; and
(b) paragraph (b) of the definition of working hours in subsection (2) did not apply to the employee for the week.
Note: Subsections 39A(3A) and (3B) deal with the circumstances in which a casual employee is taken to have been an eligible employee for the whole of a week.
Insert:
(aa) then, if because of the operation of subsections 39AA(3) to (5), there are one or more weeks of qualifying service completed by the employee before the calculation day:
(i) that are applicable weeks within the meaning of section 39AA; and
(ii) for which the number of hours of long service leave the employee is entitled to under section 39AA cannot be determined yet;
add together the number of hours for each of those applicable weeks worked out under subsection (6) of this section;
6 At the end of subsection 39AB(5)
Add (before the notes):
Note 1A: Paragraph (aa) may apply because the hours of work for a casual employee are averaged across the weeks beginning in a quarter and the quarter may not have ended yet.
7 At the end of section 39AB
Add:
(6) For the purposes of paragraph (5)(aa), the number of hours for an eligible employee for an applicable week is worked out using this formula:
where:
"working hours " means the lesser of the following number of hours:
(a) the result of dividing:
(i) the total number of hours worked by the employee as a casual employee for all of the applicable weeks covered by paragraph (5)(aa); by
(ii) the number of applicable weeks covered by paragraph (5)(aa);
(b) 35 hours.
8 Subsection 39AC(1)
After "an eligible employee", insert "(other than a casual employee)".
9 Before subsection 39AC(3)
Insert:
(2) If a casual employee takes a period of long service leave, the employer must pay the employee for the long service leave no less than an amount that is equal to:
(b) otherwise--the ordinary rate of pay (including incentive-based payments and bonuses) that would have been payable to the employee during the period had the employee not taken the leave.
Civil penalty: 60 penalty units.
10 After paragraph 39AC(3)(a)
Insert:
(aa) a reference to the ordinary rate of pay payable to an employee is a reference to the employee's ordinary rate of pay before any amounts are deducted under a salary sacrifice arrangement; and
11 At the end of subsection 50(3)
Add "or subsection 39A(3C)".
Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992
12 Section 3
Insert:
"covers " has the same meaning as in the Administration Act.
"industrial instrument " has the same meaning as in the Administration Act.
13 Subsection 3B(3)
Repeal the subsection, substitute:
(3) If an eligible employee is a casual employee, the employee's eligible wages are:
(a) if an industrial instrument that covers the employee specifies that the employee is to be paid a casual loading and the casual loading can be quantified--the base rate of pay paid to the employee, including incentive-based payments, bonuses and the casual loading; or
(b) otherwise--the ordinary rate of pay paid to the employee, including incentive-based payments and bonuses.
Insert:
(aa) a reference to the ordinary rate of pay paid to an employee is a reference to the employee's ordinary rate of pay before any amounts are deducted under a salary sacrifice arrangement; and
15 Paragraph 5(2)(b)
Omit "a form approved by the Board", substitute "the form approved in an instrument under subsection (2A)".
16 After subsection 5(2)
Insert:
(2A) The Corporation must, by notifiable instrument, approve a form for the purposes of paragraph (2)(b). The Corporation must consult the Secretary of the Department before approving the form.
17 Application provisions
(1) The amendments of sections 39A and 39AA of the Coal Mining Industry (Long Service Leave) Administration Act 1992 made by this Schedule apply in relation to weeks beginning on or after the commencement of this item.
(2) The amendments of section 39AB of the Coal Mining Industry (Long Service Leave) Administration Act 1992 made by this Schedule apply in relation to calculation days occurring on or after the commencement of this item.
(3) The amendments of section 39AC of the Coal Mining Industry (Long Service Leave) Administration Act 1992 made by this Schedule apply in relation to a period of long service leave that is taken on or after the commencement of this item, where the period begins on or after that commencement.
(4) The amendments of section 3B of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 made by this Schedule apply in relation to eligible wages paid on or after the commencement of this item, to the extent that those wages relate to days occurring on or after that commencement.
(5) The amendments of section 5 of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 made by this Schedule apply in relation to months beginning on or after the commencement of this item.