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PARLIAMENT OF VICTORIA
Community Services Long Service Leave Bill 2010
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--INTERPRETATION 3
3 Definitions 3
4 Meaning of employer 6
5 Meaning of employee 7
6 Meaning of community service activities 8
PART 3--VICTORIAN COMMUNITY SERVICES SECTOR
LONG SERVICE LEAVE AUTHORITY 10
Division 1--Establishment of Authority 10
7 Establishment of authority 10
8 Authority's functions 10
9 Authority's powers 11
10 Application of Information Privacy Act 2000, section 17 11
Division 2--Establishment of board 11
11 Authority managed by board 11
12 Composition of board 12
13 Appointment of members 12
14 Removal of member from office 13
15 Vacation of office 13
16 Remuneration and other entitlements of members 13
17 Conduct of business 13
18 Quorums 14
Division 3--Administration 14
19 Chief executive officer 14
20 Staff of the authority 14
21 Delegation 15
561333B.I-16/9/2010 i BILL LA INTRODUCTION 16/9/2010
Clause Page
Division 4--Financial provisions 15
22 Funds of authority 15
23 Actuarial investigation of funds 16
PART 4--REGISTRATION 17
24 Registration of employers 17
25 Registration of employees 18
26 Authority must keep a register 19
27 Information to be kept in register about employers 19
28 Information to be kept in register about employees and out of
scope workers 20
29 Change of information in register 21
30 Inspection of register 21
31 Objections to information contained in register 22
PART 5--RETURNS AND NOTICES 23
32 Returns 23
33 Employer to keep a record 24
34 Authority must give employers notice 25
35 Authority must give employees or out of scope workers notice 26
PART 6--LONG SERVICE LEAVE ENTITLEMENT 27
36 Crediting employment 27
37 Particular periods must be credited despite absences 28
38 Entitlement to long service leave 28
39 Continuous employment 29
40 When entitlement may be taken 30
41 Way entitlement may be taken 31
42 Application by employee for payment of entitlement 31
43 Amount of payment 32
44 Payment by authority if a person stops being an employee 33
45 Application by employer for payment from authority 33
46 Election relating to entitlement under an award or agreement 34
47 Election relating to entitlement under corresponding laws 35
48 Payments to reciprocal authorities 36
49 No payments in advance 36
PART 7--LONG SERVICE LEAVE 37
50 Imposition of levy 37
51 Amount of levy 37
52 Payment of levy 37
53 Unpaid levy 37
561333B.I-16/9/2010 ii BILL LA INTRODUCTION 16/9/2010
Clause Page
PART 8--OTHER LONG SERVICE LEAVE ENTITLEMENTS 39
54 Application for authority to administer other entitlements 39
55 Above base entitlements 40
56 Out of scope entitlements 40
57 Pre-scheme entitlements 41
58 Payment of other entitlements by authority 42
59 Authority may end administration of other entitlements 43
60 Employer may end authority's administration of other
entitlements 43
PART 9--REVIEWS 45
61 Review of decision by VCAT 45
PART 10--REQUIREMENT TO GIVE INFORMATION OR
PRODUCE DOCUMENTS TO AUTHORITY 47
62 Authority may require information or documents 47
63 Enforcement of request 47
64 Powers on production of document to authority 48
PART 11--ENFORCEMENT 49
Division 1--Appointment and identification of inspectors 49
65 Appointment of inspectors 49
66 Inspector's identity card 49
67 Production of identity card 49
Division 2--Production of information and documents 49
68 Inspector may require information or documents 49
69 Powers on production of document to inspector 50
Division 3--Entry, search and taking documents 51
70 Entry or search with consent 51
71 Retention and return of documents 53
72 Requirement to assist inspector during entry 53
73 Refusal or failure to comply with requirement 54
Division 4--General 54
74 Offence to hinder or obstruct inspector 54
75 Offence to impersonate inspector 54
76 Entry to be reported to the chief executive officer 54
77 Register of exercise of powers of entry 55
78 Complaints 55
561333B.I-16/9/2010 iii BILL LA INTRODUCTION 16/9/2010
Clause Page
PART 12--OTHER ENFORCEMENT MATTERS 56
79 Protection against self-incrimination 56
80 Offence to give false or misleading information 56
81 Service of documents 56
82 Conduct of agents imputed to corporations 57
83 Conduct of corporations imputed to directors 57
84 Aiding and inducing offences 57
PART 13--COURT PROCEEDINGS 59
85 Proceedings for offences to be brought in Industrial Division
of the Magistrates' Court 59
86 Who may prosecute? 59
87 Certified copies admissible 59
PART 14--EMPLOYMENT TERMINATED OR PREJUDICED 60
88 Definition 60
89 Employment not to be terminated or prejudiced for exercising
rights under this Act 60
90 Reversal of onus of proof in certain circumstances 60
91 Civil penalty 60
92 Reimbursement, reinstatement and compensation 61
PART 15--MISCELLANEOUS 63
93 Approved forms 63
94 No contracting out 63
95 Declaration of corresponding laws 63
96 Reciprocal agreements for corresponding laws 63
97 Regulations 64
PART 16--TRANSITIONAL PROVISIONS 65
98 First levy payment 65
99 Registration of existing employers 65
100 Registration of existing employees 65
101 Recognition of previous long service leave entitlement 65
102 Recognition of previous employment period 66
ENDNOTES 68
561333B.I-16/9/2010 iv BILL LA INTRODUCTION 16/9/2010
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Community Services Long Service
Leave Bill 2010
A Bill for an Act to establish a scheme for portability of long service
leave for employees carrying out particular community service
activities.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are to--
(a) establish a scheme for portability of long
5 service leave for particular employees
carrying out community service activities
and licensed children's services under the
Children's Services Act 1996; and
561333B.I-16/9/2010 1 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 1--Preliminary
s. 2
(b) help employers manage other long service
leave entitlements for particular persons
employed by the employer.
2 Commencement
5 This Act comes into operation on a day or days to
be proclaimed.
__________________
561333B.I-16/9/2010 2 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 3
PART 2--INTERPRETATION
3 Definitions
In this Act--
above base entitlement means a long service leave
5 entitlement of an employee who has been
employed by one employer only, that--
(a) is derived under an award or
agreement; and
(b) is more beneficial to the employee than
10 the employee's long service leave
entitlement under Part 6;
agreement means--
(a) an enterprise agreement within the
meaning of the Fair Work Act 2009 of
15 the Commonwealth; or
(b) a WR Act instrument within the
meaning of the Fair Work (Transitional
Provisions and Consequential
Amendments) Act 2009 of the
20 Commonwealth; or
(c) a contract of employment;
approved form means a form approved by the
authority under section 93;
authority means the Victorian Community
25 Services Sector Long Service Leave
Authority established under section 7;
award means--
(a) a modern award within the meaning of
the Fair Work Act 2009 of the
30 Commonwealth; or
561333B.I-16/9/2010 3 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 3
(b) a modern enterprise award within the
meaning of the Fair Work Act 2009 of
the Commonwealth; or
(c) an award-based transitional instrument
5 within the meaning of the Fair Work
(Transitional Provisions and
Consequential Amendments) Act 2009
of the Commonwealth;
board means the board established under
10 section 11;
chief executive officer means the person
appointed as the chief executive officer
under section 19;
community service activities has the meaning
15 given by section 6;
continuous employment has the meaning given
by section 39;
corresponding law means a law of a State or a
Territory declared to be a corresponding law
20 under section 95;
employee has the meaning given by section 5;
employer has the meaning given by section 4;
hourly rate of pay, of an employee, means the
amount payable to the employee for each
25 hour worked, not including any amount
payable for overtime, shift work or penalty
rates;
levy means the long service leave levy imposed
under section 50;
30 ordinary wages, of an employee, means the
amount earned by an employee in a reporting
period calculated by multiplying the number
of hours worked by the employee in the
561333B.I-16/9/2010 4 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 3
reporting period by the hourly rate of pay
payable to the employee;
out of scope entitlement means a long service
leave entitlement--
5 (a) of a person who is not an employee of
an employer but who is otherwise
employed by the employer; and
(b) derived under an award or agreement,
or under the Long Service Leave Act
10 1992;
out of scope worker means a person in relation to
whom the authority administers an out of
scope entitlement under section 54;
peak body means a body that represents a
15 significant number of organisations
representing employers or employees;
pre-scheme entitlement means the part of an
employee's long service leave entitlement
determined under the Long Service Leave
20 Act 1992 under sections 101 and 102 of this
Act;
reciprocal authority means an entity, established
under a corresponding law, that administers a
scheme providing employees with long
25 service leave entitlements;
register means the register established under
section 26;
reporting period means a 3 month period, ending
at the end of 31 March, 30 June,
30 30 September or 31 December in any year,
during which an employee performs work
for an employer;
Secretary means the Secretary to the Department
of Human Services established under the
35 Public Administration Act 2004.
561333B.I-16/9/2010 5 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 4
4 Meaning of employer
(1) An employer is--
(a) a non-profit entity that--
(i) employs one or more individuals to
5 carry out community service activities;
or
(ii) is a licensed children's service under the
Children's Services Act 1996; or
(b) another person prescribed under the
10 regulations to be an employer.
(2) However, employer does not include--
(a) the Commonwealth; or
(b) the State; or
(c) an entity that has a governing body
15 appointed under an Act of the
Commonwealth or the State; or
(d) a municipal council or other public statutory
body; or
(e) a public health service or a public hospital
20 under the Health Services Act 1988; or
(f) a person to whom subsection (1)(a) applies
who is exempted under the regulations from
being an employer.
(3) In this section--
25 non-profit entity means--
(a) a corporation--
(i) that is not carried on for the profit
or gain of its individual members;
and
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Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 5
(ii) that by the terms of its constituent
documents, is prohibited from
making a distribution to its
members, whether in money,
5 property or otherwise; or
(b) an individual carrying on a business or
other activity for a purpose that does
not include the profit or gain of the
individual.
10 5 Meaning of employee
(1) An employee is a person employed by an
employer, and includes a person employed on a
casual basis.
(2) However, an employee does not include--
15 (a) an independent contractor of the employer;
or
(b) if the employer operates a business in
addition to being a licensed children's service
under the Children's Services Act 1996--a
20 person employed by the employer unless the
person's role is to care for children or co-
ordinate the care of children for the licensed
children's service; or
(c) if the employer is a community health centre
25 registered under section 48 of the Health
Services Act 1988--a person employed by
the employer unless the person's role is to
carry out a community service activity at the
community health centre; or
30 (d) a person to whom any of the following
awards or agreements apply--
(i) Aged Care Award 2010, as amended
and in force from time to time;
561333B.I-16/9/2010 7 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 6
(ii) Educational Services (Schools) General
Staff Award 2010, as amended and in
force from time to time;
(iii) Educational Services (Teachers) Award
5 2010, as amended and in force from
time to time;
(iv) an award or agreement prescribed
under the regulations; or
(e) a person employed by an employer that is
10 eligible to be a party to the Victorian Early
Childhood Teachers and Assistants
Agreement (2009), as amended and in force
from time to time.
6 Meaning of community service activities
15 Community service activities are activities that
provide--
(a) training and employment support, or
employment placement, for persons with a
disability or other persons who are
20 vulnerable, disadvantaged or in crisis; or
(b) financial support or goods for the assistance
of persons with a disability or other persons
who are vulnerable, disadvantaged or in
crisis; or
25 (c) accommodation, or accommodation-related
support services, for persons with a disability
or other persons who are vulnerable,
disadvantaged or in crisis; or
(d) home care support services for persons with
30 a disability or other persons who are
vulnerable, disadvantaged or in crisis; or
(e) other support services for--
(i) persons with a disability or their carers;
or
561333B.I-16/9/2010 8 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 2--Interpretation
s. 6
(ii) persons who are vulnerable,
disadvantaged or in crisis; or
(f) community legal services, community
education and information services, or
5 community advocacy services; or
(g) community development services; or
(h) fundraising assistance for community
groups; or
(i) services providing assistance to particular
10 cultural or linguistically diverse
communities.
__________________
561333B.I-16/9/2010 9 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 7
PART 3--VICTORIAN COMMUNITY SERVICES SECTOR
LONG SERVICE LEAVE AUTHORITY
Division 1--Establishment of Authority
7 Establishment of authority
5 (1) The Victorian Community Services Sector Long
Service Leave Authority is established.
(2) The authority--
(a) is a body corporate with perpetual
succession; and
10 (b) has an official seal; and
(c) may sue and be sued in its corporate name;
and
(d) may do and suffer all acts and things that a
body corporate may by law do and suffer.
15 (3) A court must take judicial notice of the seal of the
authority affixed to a document and, until the
contrary is proved, must presume that it was duly
affixed.
(4) The official seal of the authority must be kept in
20 the custody of the authority and must not be used
other than as authorised by the authority.
8 Authority's functions
(1) The authority's primary functions are to--
(a) provide an equitable and efficient system of
25 portable long service leave for employees;
and
(b) help employers manage other long service
leave entitlements for particular persons
employed by the employer.
561333B.I-16/9/2010 10 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 9
(2) The other functions of the authority are those
conferred on it by this Act or any other Act.
9 Authority's powers
(1) For the purpose of performing its functions, the
5 authority may--
(a) enter into contracts; and
(b) acquire, hold and dispose of real and
personal property; and
(c) do all other things necessary or convenient to
10 be done for or in connection with, or
incidental to, the performance of its
functions.
(2) Without limiting subsection (1), the authority has
the powers conferred on it by this Act or any other
15 Act.
10 Application of Information Privacy Act 2000,
section 17
Section 17 of the Information Privacy Act 2000
applies in relation to an act done or practice
20 engaged in by a person under a contract for the
authority as if the contract were a State contract
under that provision.
Division 2--Establishment of board
11 Authority managed by board
25 (1) The authority has a board of members.
(2) The board--
(a) is responsible for managing the business of
the authority; and
(b) may exercise the powers of the authority.
561333B.I-16/9/2010 11 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 12
12 Composition of board
(1) The board has 5 members, consisting of--
(a) a person appointed as the chairperson; and
(b) 2 persons appointed as representatives of
5 employers; and
(c) 2 persons appointed as representatives of
employees.
(2) The chairperson must be a person with expertise
in the management of funds or have other relevant
10 financial experience.
(3) Each person appointed as a representative of
employers must have experience as--
(a) an employer; or
(b) a member of a peak body for employers.
15 (4) Each person appointed as a representative of
employees must have experience as--
(a) an employee; or
(b) a union representative for employees; or
(c) a member of a peak body for employees.
20 13 Appointment of members
(1) The Governor in Council may appoint a person as
a member of the board for a term, of not more
than 5 years, specified in the person's instrument
of appointment.
25 (2) The person is eligible for re-appointment.
(3) The appointment is on the terms and conditions
determined by the Governor in Council.
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Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 14
14 Removal of member from office
The Governor in Council may remove a member
of the board from office if the member--
(a) is physically or mentally unable to fulfil the
5 role of a member of the board; or
(b) is convicted or found guilty of an indictable
offence or an offence which, if committed in
Victoria, would be an indictable offence; or
(c) is absent, without leave of the board, from all
10 meetings of the board held during a period of
6 months; or
(d) is insolvent under administration.
15 Vacation of office
(1) The office of a member becomes vacant if the
15 member--
(a) dies; or
(b) gives the Minister a signed notice of
resignation; or
(c) is removed under section 14.
20 (2) If an office of a member becomes vacant during
the member's term of appointment, the Governor
in Council may appoint another person to the
office under section 13.
16 Remuneration and other entitlements of members
25 (1) A member of the board is entitled to be paid the
remuneration and allowances determined by the
Governor in Council.
(2) The remuneration and allowances payable to a
member are to be paid by the authority.
30 17 Conduct of business
Subject to this Act, the board may conduct its
business in any way it considers appropriate.
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Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 18
18 Quorums
(1) The board must not conduct business at a meeting
of the board unless a quorum is present.
(2) A quorum consists of at least 3 members of the
5 board that include--
(a) the chairperson of the board; and
(b) a member appointed under section 12(1)(b);
and
(c) a member appointed under section 12(1)(c).
10 Division 3--Administration
19 Chief executive officer
(1) The board may appoint a person to be the chief
executive officer of the authority.
(2) Subject to the board, the chief executive officer
15 may manage the affairs of the authority.
(3) A thing done by the chief executive officer in the
name of or for the authority is taken to have been
done by the authority.
20 Staff of the authority
20 (1) For the purpose of performing its functions, the
authority may--
(a) employ persons under Part 3 of the Public
Administration Act 2004; or
(b) engage persons to provide services; or
25 (c) take persons on secondment from other
bodies within the public sector or from
private organisations.
(2) The Secretary may make available to the authority
the services of any employees in the Department
30 of Human Services that are necessary to enable
the authority to carry out its functions.
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Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 21
(3) A person engaged by the authority to provide
services is taken to be a public authority for the
purposes of the application of the Charter of
Human Rights and Responsibilities.
5 21 Delegation
(1) The authority may, by instrument, delegate a
power under this Act to a person employed,
engaged or seconded to the authority under
section 20.
10 (2) Despite subsection (1), the authority must not
delegate a power--
(a) to delegate under this section; or
(b) given to an inspector under Part 11.
Division 4--Financial provisions
15 22 Funds of authority
(1) The funds of the authority consist of--
(a) levy amounts paid to the authority; and
(b) proceeds from investments by the authority;
and
20 (c) other amounts received by the authority.
(2) The funds may be used for--
(a) long service leave payments; and
(b) payments for expenses incurred in the
administration of this Act, including
25 payments relating to the employment of
staff; and
(c) payments for investments by the authority;
and
(d) other payments authorised under this Act or
30 the regulations.
561333B.I-16/9/2010 15 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 3--Victorian Community Services Sector Long Service Leave Authority
s. 23
23 Actuarial investigation of funds
(1) At least every 3 years, but otherwise as required
by the board, the authority must investigate--
(a) the adequacy of the authority's funds; and
5 (b) the adequacy of the amount of the levy
determined under section 51(1).
(2) For the purposes of subsection (1), the board must
appoint a person who is recognised as an actuary
and holds qualifications the board considers
10 suitable to carry out the investigation.
(3) The person must--
(a) complete the investigation, and report the
outcome of the investigation to the authority
after the investigation is completed; and
15 (b) state in the report an opinion about whether
the rate of levy should be reduced, increased
or stay the same.
(4) After the authority receives the report, the
authority must give the report to the Minister with
20 its recommendations about--
(a) the opinion stated by the person under
subsection (3)(b); and
(b) whether the funds available are adequate to
perform the authority's functions.
25 (5) This section does not limit the authority's ability
to make other inquiries about whether the
authority's funds and the amount of the levy are
adequate.
__________________
561333B.I-16/9/2010 16 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 4--Registration
s. 24
PART 4--REGISTRATION
24 Registration of employers
(1) A person must apply to the authority for
registration as an employer--
5 (a) if the person becomes an employer within
14 days before the end of a reporting
period--within 14 days after the person
becomes an employer; or
(b) otherwise--before the end of the reporting
10 period in which the person becomes an
employer.
Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
15 50 penalty units.
(2) The application must--
(a) be in the approved form; and
(b) include any information prescribed by the
regulations.
20 (3) The authority may, by written notice, ask the
person to give the authority further information
relevant to the application within a reasonable
time stated in the notice.
(4) The authority must decide the application and give
25 the person written notice of the authority's
decision within 28 days after receiving the
application.
(5) The authority, on an application made under this
section, may register a person as an employer.
561333B.I-16/9/2010 17 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 4--Registration
s. 25
25 Registration of employees
(1) An employer must apply to the authority for
registration of a person as an employee--
(a) if the person becomes an employee of the
5 employer within 14 days before the end of a
reporting period--within 14 days after the
person becomes an employee of the
employer; or
(b) otherwise--before the end of the reporting
10 period in which the person becomes an
employee of the employer.
Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
15 50 penalty units.
(2) A person who is an employee may also apply to
the authority for registration as an employee of an
employer.
(3) An application under this section must--
20 (a) be in the approved form; and
(b) include--
(i) the date when the person first became
an employee of the employer; and
(ii) any other information prescribed under
25 the regulations.
(4) The authority may, by written notice, ask the
applicant to give the authority further information
relevant to the application within a reasonable
time stated in the notice.
30 (5) The authority must decide the application and give
the employer and the person written notice of the
authority's decision within 28 days after receiving
the application.
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Community Services Long Service Leave Bill 2010
Part 4--Registration
s. 26
(6) The authority, on an application made under this
section, may register a person as an employee.
26 Authority must keep a register
(1) The authority must keep a register under this Act.
5 (2) Subject to this Act, the register must be kept in the
form and manner determined by the authority.
27 Information to be kept in register about employers
The register must include the following
information about each person who is registered
10 as an employer under section 24, to the extent that
the authority has, or is able to obtain the
information--
(a) the person's name;
(b) the person's ABN, if any;
15 (c) the address of the person's principal place of
business;
(d) if the person is a corporation--
(i) the address of the person's registered
office; and
20 (ii) the person's ACN;
(e) the date the person was registered as an
employer;
(f) if the person is no longer an employer, the
date the person stopped being an employer;
25 (g) the name of each employee of the person
registered under section 25;
(h) if the authority administers an above base
entitlement, an out of scope entitlement or a
pre-scheme entitlement for the person--the
30 name of the employee or the out of scope
worker in relation to whom the entitlement is
administered.
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Community Services Long Service Leave Bill 2010
Part 4--Registration
s. 28
28 Information to be kept in register about employees
and out of scope workers
(1) This section applies in relation to a person--
(a) registered as an employee under section 25;
5 or
(b) who is an out of scope worker.
(2) The register must include the following
information about the person, to the extent that the
authority has, or is able to obtain the
10 information--
(a) the person's name, residential address and
date of birth;
(b) the date the person was registered as an
employee or became an out of scope worker;
15 (c) the name of each employer of the person;
(d) the beginning and end date of each period of
employment with an employer;
(e) the hourly rate of pay of the person during
each reporting period the person is employed
20 by an employer;
(f) the number of hours worked by the person
during each reporting period the person is
employed by an employer;
(g) the total amount earned by the person during
25 each reporting period the person is employed
by an employer;
(h) if the person is an employee--the amount of
person's long service leave entitlement
accrued under Part 6;
30 (i) if the authority is administering an above
base entitlement, an out of scope entitlement
or a pre-scheme entitlement in relation to the
person--the amount of the person's above
561333B.I-16/9/2010 20 BILL LA INTRODUCTION 16/9/2010
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Part 4--Registration
s. 29
base entitlement, out of scope entitlement or
pre-scheme entitlement;
(j) details of any long service leave entitlement
granted or paid by an employer to the
5 person;
(k) details of any period of leave granted by the
employer to the person, other than--
(i) annual or recreation leave; or
(ii) long service leave; or
10 (iii) sick leave if the period of the sick leave
is not more than 48 weeks;
(l) the period during which the person has been
continuously employed;
(m) any dates on which the person stopped being
15 an employee or an out of scope worker.
29 Change of information in register
A person registered as an employer under this Act
must give the authority written notice of any
change of the information mentioned in
20 section 27(a), (b), (c) or (d) relating to the
employer within 14 days after the change
happens.
Penalty: In the case of a natural person,
10 penalty units;
25 In the case of a body corporate,
50 penalty units.
30 Inspection of register
(1) A person may inspect an entry or entries in the
register if the entry or entries relate to--
30 (a) the person; or
(b) an employee or out of scope worker of the
person.
561333B.I-16/9/2010 21 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 4--Registration
s. 31
(2) The entry or entries may be inspected at the
authority's offices during business hours or on the
authority's Internet site.
(3) The authority must give the person a copy of the
5 entry or entries if the person requests a copy.
31 Objections to information contained in register
(1) A person may object in writing to the authority on
the ground that information recorded in the
register about the person, or about an employee or
10 an out of scope worker of the person, is incorrect.
(2) The person's written objection must state the
information in the register the person believes is
incorrect and why.
(3) The authority must decide the objection and give
15 the person written notice of the authority's
decision within 28 days after receiving the
objection.
(4) The authority must ensure, to the extent that the
authority may practicably do so, that the
20 information recorded in the register is correct.
__________________
561333B.I-16/9/2010 22 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 5--Returns and Notices
s. 32
PART 5--RETURNS AND NOTICES
32 Returns
(1) Within 28 days after the end of a reporting period,
a person who is registered as an employer during
5 the reporting period must give the authority a
return in the approved form for the reporting
period.
Penalty: In the case of a natural person,
10 penalty units;
10 In the case of a body corporate,
50 penalty units.
(2) The return must include the following information
about each employee or out of scope worker of the
person--
15 (a) the name of the employee or out of scope
worker;
(b) whether the employee or out of scope worker
was employed for all or part of the reporting
period;
20 (c) if the employee or out of scope worker was
employed for part of the reporting period
only, the periods during which the employee
or out of scope worker was employed;
(d) the hourly rate of pay of the employee or out
25 of scope worker during the reporting period;
(e) the number of hours worked by the employee
or out of scope worker during the reporting
period;
(f) the total amount of earnings of the employee
30 or out of scope worker during the reporting
period;
561333B.I-16/9/2010 23 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 5--Returns and Notices
s. 33
(g) details of any period of leave granted to the
employee or out of scope worker during the
reporting period;
(h) the amount of levy or any other amounts
5 paid under this Act to the authority by the
employer during the reporting period in
relation to the employee or out of scope
worker.
(3) If the authority is administering an above base
10 entitlement, an out of scope entitlement or a
pre-scheme entitlement in relation to an employee
or out of scope worker of the person, the person
must also include in the return--
(a) information about the type of entitlement the
15 authority is administering for the person; and
(b) any other information the authority has
advised the person it requires to administer
the above base entitlement, pre-scheme
entitlement or out of scope entitlement.
20 33 Employer to keep a record
(1) An employer registered under section 24 must
keep a record of each person who is an employee
or out of scope worker of the employer.
Penalty: In the case of a natural person,
25 10 penalty units;
In the case of a body corporate,
50 penalty units.
(2) The record must include the following
information--
30 (a) the person's name, residential address and
date of birth;
(b) the date the person was first employed by the
employer;
561333B.I-16/9/2010 24 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 5--Returns and Notices
s. 34
(c) the beginning and end date of each period of
employment with the employer;
(d) the hourly rate of pay of the person during
each reporting period the person is employed
5 by the employer;
(e) the number of hours worked by the person
during each reporting period the person is
employed by the employer;
(f) the total amount earned by the person during
10 each reporting period the person is employed
by the employer;
(g) details of any long service leave entitlement
granted or paid by an employer to the
person;
15 (h) details of any period of leave granted by the
employer to the person;
(i) any dates on which the person stopped being
employed by the employer.
(3) The employer must keep the record for at least
20 7 years after the last entry is made in the record.
Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
50 penalty units.
25 34 Authority must give employers notice
(1) This section applies to a person who is registered
as an employer on 30 June of a financial year.
(2) The authority must give the person, within
60 days after the end of the financial year, a notice
30 stating--
(a) the information recorded in the register
under section 27 relating to the person; and
561333B.I-16/9/2010 25 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 5--Returns and Notices
s. 35
(b) the information recorded in the register
under section 28 relating to an employee or
an out of scope worker of the person during
the financial year; and
5 (c) that the person may object to any
information recorded in the register under
section 31 on the basis that the information is
incorrect.
35 Authority must give employees or out of scope
10 workers notice
(1) This section applies to a person who is registered
as an employee, or who is an out of scope worker,
on 30 June of a financial year.
(2) The authority must give the person, within
15 60 days after the end of the financial year, a notice
stating--
(a) the information recorded in the register
under section 28 relating to the person; and
(b) that the person may object to any
20 information recorded in the register under
section 31 on the basis that the information is
incorrect.
__________________
561333B.I-16/9/2010 26 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 36
PART 6--LONG SERVICE LEAVE ENTITLEMENT
36 Crediting employment
(1) If an employee carries out work for an employer
during a reporting period, the employee must be
5 credited in the register with one day of
employment for each day in the reporting period.
(2) If an employee carries out work for more than one
employer in a reporting period, the employee must
be credited in the register for the total number of
10 days the employee would be credited under
subsection (1) for each employer.
(3) Despite subsection (1), an employee must not be
credited in the register with employment during a
reporting period for more than the number of days
15 in the reporting period.
(4) Also, an employee must not be credited in the
register with employment for more than 365 days
in a financial year, even if a particular financial
year has 366 days.
20 (5) Despite subsection (1)--
(a) if the employment of an employee ends
during a reporting period that employee must
be credited with one day of employment for
each day of that part of the reporting period
25 that has occurred before the employee's
employment ends;
(b) if the employment of an employee begins
during a reporting period that employee must
be credited with one day of employment for
30 each day of that part of the reporting period
that has occurred after the employee's
employment commences.
561333B.I-16/9/2010 27 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 37
37 Particular periods must be credited despite absences
An employee must be credited in the register with
employment under section 36 despite the
employee being absent from the employee's
5 employment if--
(a) the employee's absence relates to a period
during which the employee--
(i) took annual or recreation leave, or long
service leave; or
10 (ii) was ill or injured for not more than
48 weeks; or
(b) the employee's employer agrees to the
employee being credited in the register with
the period of the absence; or
15 (c) the absence is the result of the employee's
employer ending or interrupting the
employee's employment with the employer
with the intention of avoiding the
employer's--
20 (i) long service leave obligations in
relation to the employee; or
(ii) annual or recreation leave obligations
in relation to the employee.
38 Entitlement to long service leave
25 (1) If an employee has been credited in the register
under section 36 with 3650 days or more of
continuous employment with one or more
employers, the employee's entitlement to long
service leave is--
30 (a) for each period of 3650 days of continuous
employment credited in the register--
8·7 weeks; and
561333B.I-16/9/2010 28 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 39
(b) for each day of continuous employment
credited in the register that is not included in
a period of 3650 days under paragraph (a)--
the proportion of 8·7 weeks that the number of
5 days' employment bears to 3650 days.
(2) If an employee has been credited in the register
under section 36 with at least 2555 days of
continuous employment with the same employer
(being days that are not included in a period of
10 days to which subsection (1) applies), the
employee's entitlement to long service leave is the
proportion of 8·7 weeks that the number of days'
employment bears to 3650 days.
39 Continuous employment
15 An employee is continuously employed during a
period despite--
(a) the employee taking--
(i) annual or recreation leave, long service
leave, or carers leave; or
20 (ii) adoption leave, maternity leave or
paternity leave for not more than
12 months or a longer period specified
in the employee's employment
agreement; or
25 (iii) other paid or unpaid leave approved by
the employee's employer; or
(b) being absent because of illness or injury; or
(c) being dismissed from the employee's
employment and re-employed by the same
30 employer within 3 months; or
561333B.I-16/9/2010 29 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 40
(d) an employer ending or interrupting the
employee's employment with the
employer--
(i) with the intention of avoiding the
5 employer's long service leave
obligations, or annual or recreation
leave obligations, in relation to the
employee; or
(ii) because of slackness of trade; or
10 (e) an interruption to the employee's
employment arising directly or indirectly
from an industrial dispute; or
(f) not being an employee for not more than--
(i) 12 months for any part of the period;
15 and
(ii) 4 years over the total length of the
period.
40 When entitlement may be taken
(1) An employer and an employee who is entitled to
20 long service leave under this Part may agree when
the employee is to take the leave.
(2) In the absence of an agreement under subsection
(1), the employer may direct the employee to take
long service leave at a particular time by giving
25 the employee at least 3 months' written notice.
(3) Subject to subsection (4), an employee who
receives a notice from an employer under
subsection (2) must take the leave as directed by
the employer.
30 (4) The employee may apply to the Industrial
Division of the Magistrates' Court for an order
concerning when the long service leave may be
taken--
561333B.I-16/9/2010 30 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 41
(a) if the employee and the employer cannot
agree under subsection (1); or
(b) if the employee receives a notice from the
employer under subsection (2).
5 (5) In determining an application under subsection
(4), the Court may take into account all of the
relevant circumstances, including the needs of the
employee and the needs of the employer's
business.
10 41 Way entitlement may be taken
An employee and an employer may agree on the
way the employee may take the employee's long
service leave entitlement under this Part, including
by--
15 (a) the employee receiving a payment in lieu of
the long service leave, or in lieu of any part
of the long service leave; or
(b) the employee taking the leave for a period
that is as twice as long as the period of the
20 leave the employee would otherwise be
entitled to, at a rate of pay equal to half the
amount the employee is entitled to.
42 Application by employee for payment of entitlement
(1) An employee may apply to the employee's
25 employer in writing for payment for all or part of
the employee's long service leave entitlement
under section 38.
(2) If an employee has died and immediately before
the employee's death, the employee had an
30 entitlement to long service leave under section 38,
the employee's personal representative may apply
to the employee's employer in writing for payment
of the entitlement.
561333B.I-16/9/2010 31 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 43
(3) Unless the employee's employer otherwise agrees,
an application made under subsection (1) must be
made not less than 42 days before the first day of
the employee's leave.
5 (4) The employer must pay to the employee, or the
personal representative of the employee, the
amount of the employee's long service leave
entitlement applied for.
(5) An amount of unpaid long service leave
10 entitlement owing to the employee may be
recovered as a debt in a court of competent
jurisdiction.
43 Amount of payment
(1) The amount payable to an employee for the
15 employee's long service leave entitlement under
section 38 is calculated in accordance with the
formula--
S × 0 87 × R
52
where--
20 S is the amount calculated by adding together
each amount of the employee's moderated service
for each reporting period in which the employee
was credited with employment in the register
under section 36; and
25 R is the employee's annual rate of pay at the time
the application for payment is made.
(2) In this section--
annual rate of pay, of an employee, means the
hourly rate of pay of the employee at the
30 time that the application for payment is made
multiplied by the number 1924;
561333B.I-16/9/2010 32 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 44
moderated service, of an employee for a reporting
period, means the ordinary wages earned by
the employee during the reporting period
divided by the employee's annual rate of pay.
5 44 Payment by authority if a person stops being an
employee
(1) If a person who has a long service leave
entitlement under section 38 stops being an
employee, the person may apply to the authority
10 for payment of the person's entitlement within the
12 month period after the day the person stopped
being an employee.
(2) The application must be in the approved form.
(3) If the authority refuses to pay the amount applied
15 for, the authority must give the person a written
notice about the refusal within 28 days after the
refusal.
(4) The authority must pay the person the amount of
the person's entitlement under section 38 without
20 the person making an application for payment if
the 12 month period ends and the person--
(a) has not become an employee again; and
(b) has not made an application under subsection
(1) for payment of the entitlement.
25 45 Application by employer for payment from
authority
(1) An employer may apply to the authority for
payment of an amount paid or an amount to be
paid by the employer under section 42.
30 (2) The application must be in the approved form.
561333B.I-16/9/2010 33 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 46
(3) An employer who wants to receive an amount
from the authority under this section before
paying an employee under section 42, must apply
to the authority for the amount not less than
5 28 days before the first day of the employee's
leave.
(4) However, the authority may accept an application
for payment under subsection (1) that does not
comply with subsection (3) if the authority
10 decides it would otherwise cause the employer
undue hardship.
(5) If the authority refuses to pay the amount applied
for, the authority must give the employer a written
notice about the refusal within 28 days after the
15 application.
46 Election relating to entitlement under an award or
agreement
(1) This section applies if--
(a) an employee is not credited with sufficient
20 days of continuous employment to be
entitled to long service leave under this Part;
and
(b) the employee has accrued an entitlement to
long service leave under an award or
25 agreement; and
(c) the employee elects to take the entitlement
under the award or agreement; and
(d) the employee's employer for the period of
the election has paid to the authority an
30 amount of levy for the employee.
561333B.I-16/9/2010 34 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 47
(2) The employer may give the authority a written
notice--
(a) stating--
(i) the nature of the registered employee's
5 election; and
(ii) the period the election relates to; and
(b) asking for the authority to reimburse the
employer the amount of the levy paid to the
authority for the employee for the period.
10 (3) If the authority is satisfied the information in the
notice is correct, the authority must within 28 days
after receiving the notice--
(a) remove from the register any credits for the
period relating to the employee; and
15 (b) pay to the employer the amount of the levy.
(4) The authority must keep a record of the deleted
credits.
47 Election relating to entitlement under
corresponding laws
20 (1) This section applies if an employee is eligible for
long service leave entitlements under both this
Part and a corresponding law.
(2) If the employee or the employee's representative
elects to take long service entitlements under the
25 corresponding law, the employee must give the
authority written notice of--
(a) the nature of the election; and
(b) the period the election relates to.
(3) If the authority is satisfied the information in the
30 notice is correct, the authority must remove from
the register any credits for the period relating to
the employee.
561333B.I-16/9/2010 35 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 6--Long Service Leave Entitlement
s. 48
(4) The authority must keep a record of the deleted
credits.
48 Payments to reciprocal authorities
(1) If a reciprocal authority pays an amount under a
5 corresponding law for a long service leave
entitlement that may have been paid under this
Part--
(a) the obligation of the authority to make a
payment for the entitlement under this Part is
10 discharged; and
(b) the authority must reimburse the reciprocal
authority the amount of the payment if the
authority is notified of the payment and is
satisfied the payment was properly made.
15 (2) The payment of the amount to the reciprocal
authority under subsection (1)(b) must be made in
the way stated in an agreement entered into under
section 96 with the State or Territory in which the
reciprocal authority is established.
20 49 No payments in advance
The authority must not pay an employer under
section 45, or reimburse a reciprocal authority
under section 48, unless the employee has accrued
the entitlement and been credited with it in the
25 register.
__________________
561333B.I-16/9/2010 36 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 7--Long Service Leave
s. 50
PART 7--LONG SERVICE LEAVE
50 Imposition of levy
A long service leave levy is imposed on the
ordinary wages of each employee.
5 51 Amount of levy
(1) The amount of levy payable for each employee of
an employer is the percentage of the employee's
ordinary wages determined by the authority from
time to time and published in the Government
10 Gazette.
(2) Despite subsection (1), the amount of the levy
must be an amount that is not more than 3% of the
employee's ordinary wages.
52 Payment of levy
15 Within 28 days after the end of a reporting period,
a person who was registered as an employer
during the reporting period must pay the authority
the amount of levy payable under section 51 for
each employee of the person for the reporting
20 period.
Penalty: In the case of a natural person,
10 penalty units;
In the case of a body corporate,
50 penalty units.
25 53 Unpaid levy
(1) Interest is payable on an amount of unpaid levy
owing to the authority at the rate fixed from time
to time under section 2 of the Penalty Interest
Rates Act 1983 and calculated from the date on
30 which the amount becomes due until the date on
which the amount is paid or recovered.
561333B.I-16/9/2010 37 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 7--Long Service Leave
s. 53
(2) The authority may recover an amount of unpaid
levy owing to the authority by an employer, and
any interest owing to the authority under
subsection (1), as a debt in a court of competent
5 jurisdiction.
__________________
561333B.I-16/9/2010 38 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 54
PART 8--OTHER LONG SERVICE LEAVE ENTITLEMENTS
54 Application for authority to administer other
entitlements
(1) An employer may apply to the authority for the
5 authority to administer any of the following long
service leave entitlements under an award or
agreement, or under the Long Service Leave Act
1992, relating to an employee of the employer or
another person employed by the employer--
10 (a) an above base entitlement;
(b) an out of scope entitlement;
(c) a pre-scheme entitlement.
(2) The application must--
(a) be in the approved form; and
15 (b) state whether the authority's role in
administering the entitlement is to--
(i) administer the information and records
relating to the entitlement under this
Act; or
20 (ii) administer the information and records
relating to the entitlement, and the
financial contributions payable by the
employer for the entitlement, under this
Act.
25 (3) The authority may charge the employer a fee that
is not more than the actual cost of administering
the entitlement.
(4) The authority may recover an amount of an
unpaid fee owing to the authority under subsection
30 (3), as a debt in a court of competent jurisdiction.
(5) The authority may accept an application made
under this section.
561333B.I-16/9/2010 39 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 55
55 Above base entitlements
(1) This section applies if the authority accepts an
application under section 54 to administer the
financial contributions payable by an employer in
5 relation to an above base entitlement of an
employee of the employer.
(2) The employer must pay to the authority for each
reporting period the authority administers the
above base entitlement an amount equal to the
10 proportion of the above base entitlement payable
for the reporting period to the extent that it is
more beneficial than the employee's long service
leave entitlement under Part 6.
(3) The authority must give the employer after each
15 reporting period the authority administers the
above base entitlement a written notice stating the
amount payable by the employer for the reporting
period.
(4) The employer must pay the authority the amount
20 stated in the notice within 14 days after receiving
the notice.
(5) The employer must also pay the authority any
amount of the employee's above base entitlement
that relates to the period of the employee's
25 employment with the employer before the
commencement of this Part.
(6) The employer must pay to the authority the
amount mentioned in subsection (5) within
28 days after the authority gives the employer
30 written notice of the amount payable.
56 Out of scope entitlements
(1) This section applies if the authority accepts an
application under section 54 to administer the
financial contributions payable by an employer in
35 relation to an out of scope entitlement of a person
employed by the employer.
561333B.I-16/9/2010 40 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 57
(2) The employer must pay to the authority for each
reporting period the authority administers the out
of scope entitlement an amount equal to the
proportion of the out of scope entitlement payable
5 for the reporting period.
(3) The authority must give the employer after each
reporting period the authority administers the out
of scope entitlement a written notice stating the
amount payable by the employer for the reporting
10 period.
(4) The employer must pay the authority the amount
stated in the notice within 14 days after receiving
the notice.
(5) The employer must also pay to the authority any
15 amount of the person's out of scope entitlement
that relates to the period of the person's
employment with the employer before the
commencement of this Part.
(6) The employer must pay to the authority the
20 amount mentioned in subsection (5) within
28 days after the authority gives the employer
written notice of the amount payable.
57 Pre-scheme entitlements
(1) This section applies if the authority accepts an
25 application under section 54 to administer the
financial contributions payable by an employer in
relation to a pre-scheme entitlement of an
employee of the employer.
(2) The employer must pay to the authority the
30 amount of the pre-scheme entitlement within
28 days after the authority gives the employer
written notice of the amount payable.
561333B.I-16/9/2010 41 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 58
58 Payment of other entitlements by authority
(1) This section applies if the authority administers
the financial contributions payable by an
employer in relation to an above base entitlement,
5 an out of scope entitlement or a pre-scheme
entitlement under this Part.
(2) The employer may apply to the authority--
(a) for payment of an amount payable under the
entitlement; or
10 (b) if an amount is not payable under the
entitlement--for payment of the amount paid
to the authority in relation to the entitlement.
(3) An application made under subsection (2) must be
made in the approved form.
15 (4) In addition to the amount paid to the employer
under subsection (2), the authority must also pay
the employer interest on the amount at a rate fixed
by the authority from time to time and published
in the Government Gazette.
20 (5) The interest must be calculated at the end of each
reporting period and paid into an account held by
the authority for the employer.
(6) Unless the authority otherwise agrees, an
employer who wants to receive an amount from
25 the authority under this section before paying a
person employed by the employer for long service
leave, must apply to the authority for the amount
not less than 28 days before the first day of the
employee's leave.
30 (7) If the authority refuses to pay the amount applied
for, the authority must give the employer a written
notice about the refusal within 28 days after the
refusal.
561333B.I-16/9/2010 42 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 59
59 Authority may end administration of other
entitlements
(1) This section applies if--
(a) an employer does not pay an amount to the
5 authority under section 55, 56 or 57 when it
is required to be paid for an above base
entitlement, an out of scope entitlement or a
pre-scheme entitlement; or
(b) an employer does not give the authority any
10 information it requires under section 32(2) or
(3) for an above base entitlement, an out of
scope entitlement or a pre-scheme
entitlement.
(2) The authority may give the employer a written
15 notice ending the authority's administration of the
entitlement.
(3) If the authority ends its administration of the
entitlement, the authority must as soon as
practicable--
20 (a) pay to the employer any amounts the
employer has paid to the authority under
section 55, 56 or 57 for the entitlement other
than any amount previously paid by
authority to the employer for that
25 entitlement; and
(b) pay to the employer the amount of interest
paid to the employer by the authority under
section 58(4).
60 Employer may end authority's administration of
30 other entitlements
(1) An employer may give the authority a written
notice ending the authority's administration of an
entitlement under this Part.
561333B.I-16/9/2010 43 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 8--Other Long Service Leave Entitlements
s. 60
(2) If the employer ends the authority's administration
of the entitlement, the authority must as soon as
practicable--
(a) repay to the employer any amounts the
5 employer has paid to the authority under
section 55, 56 or 57 for the entitlement; and
(b) pay to the employer the amount of interest
paid to the employer by the authority under
section 58(4).
__________________
561333B.I-16/9/2010 44 BILL LA INTRODUCTION 16/9/2010
Community Services Long Service Leave Bill 2010
Part 9--Reviews
s. 61
PART 9--REVIEWS
61 Review of decision by VCAT
(1) A person whose interests are affected by any one
of the following decisions may apply to VCAT for
5 review of the decision--
(a) a decision of the authority to refuse to
register the person as an employer under
section 24(4);
(b) a decision of the authority to refuse to
10 register the person as an employee under
section 25(5);
(c) a decision of the authority to refuse to
change information recorded in the register
relating to the person, or an employee or out
15 of scope worker of the person, in the way
requested by the person under section 31(3);
(d) a decision of the authority to refuse to pay
the person's long service leave entitlement
applied for under section 44(3);
20 (e) a decision of the authority to refuse to
reimburse or pay the person's long service
leave entitlement applied for under
section 45(5);
(f) a decision of the authority to refuse to pay an
25 employer an amount under section 58(7).
(2) The application for the review must be made
within 28 days of the later of--
(a) the day on which the decision is made; or
(b) if, under the Victorian Civil and
30 Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
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Part 9--Reviews
s. 61
informed under section 46(5) of that Act that
a statement of reasons will not be given.
__________________
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Community Services Long Service Leave Bill 2010
Part 10--Requirement to give Information or Produce Documents to
s. 62
Authority
PART 10--REQUIREMENT TO GIVE INFORMATION OR
PRODUCE DOCUMENTS TO AUTHORITY
62 Authority may require information or documents
(1) This section applies to a person--
5 (a) who is registered as an employer under
section 24; or
(b) who the authority believes on reasonable
grounds to be an employer.
(2) The authority may, by written notice given to the
10 person, require the person to give information or
produce a document under the person's control to
the authority that is relevant to a function of the
authority under this Act.
(3) The person must give the information or produce
15 the document to the authority at a time and place,
and in the way, specified by the authority in the
written notice that is reasonable in the
circumstances.
(4) A person must not, without reasonable excuse,
20 refuse or fail to comply with a requirement of the
authority under subsection (2).
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
25 300 penalty units.
63 Enforcement of request
(1) Irrespective of whether a proceeding is
commenced for an offence against section 62(4),
the authority may apply to the Magistrates' Court
30 for an order directing a person to whom a notice
was given under section 62(2) to comply with the
notice within a specified time.
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Part 10--Requirement to give Information or Produce Documents to
s. 64
Authority
(2) 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
5 notice, grant the application unless it considers
that in the circumstances there are reasonable
grounds for not doing so.
(3) In the application of section 135 of the
Magistrates' Court Act 1989 to an order under
10 this section--
(a) section 135(3)(a) of that Act 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
15 (b) section 135(4)(b) of that Act has effect as if
it provided for maximum aggregate sums of
400 penalty units.
64 Powers on production of document to authority
If a document is produced to the authority under
20 this Part, the authority may--
(a) inspect the document or authorise a person to
inspect the document; or
(b) make copies of or take extracts from the
document.
__________________
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Part 11--Enforcement
s. 65
PART 11--ENFORCEMENT
Division 1--Appointment and identification of inspectors
65 Appointment of inspectors
(1) The chief executive officer may, by instrument,
5 appoint as an inspector an employee under Part 3
of the Public Administration Act 2004.
(2) The chief executive officer must not appoint a
person as an inspector under this section unless
the chief executive officer is satisfied that the
10 person is appropriately qualified or has
successfully completed appropriate training.
66 Inspector's identity card
(1) The chief executive officer must issue an identity
card to each inspector.
15 (2) An identity card must contain a photograph of the
inspector to whom it is issued.
67 Production of identity card
An inspector must produce his or her identity card
for inspection--
20 (a) before exercising a power under this Part
other than a requirement made by post; and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
Penalty: 10 penalty units.
25 Division 2--Production of information and documents
68 Inspector may require information or documents
(1) For the purpose of monitoring compliance with
this Act and the regulations, an inspector may by
written notice--
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Part 11--Enforcement
s. 69
(a) require an employer registered under
section 24--
(i) to give information or produce a
document required to be kept by the
5 employer under the Act or the
regulations to the inspector; and
(ii) give the inspector any other
information relevant to the
determination of the employer's rights
10 and obligations under the Act or the
regulations; and
(b) require a person, who the inspector believes
on reasonable grounds to be an employer, to
give the inspector any information relevant
15 to the determination of the person's rights
and obligations under the Act or the
regulations.
(2) The employer or the person must give the
information or the document to the inspector at a
20 time and place, and in the way, specified by the
inspector in the written notice that is reasonable in
the circumstances.
69 Powers on production of document to inspector
If a document is produced to an inspector under
25 this Division, the inspector may--
(a) inspect the document or authorise a person to
inspect the document; or
(b) make copies of or take extracts from the
document.
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Part 11--Enforcement
s.70
Division 3--Entry, search and taking documents
70 Entry or search with consent
(1) If an inspector believes, on reasonable grounds,
that a person has contravened this Act or the
5 regulations, the inspector, with the consent of the
occupier of the premises, may--
(a) enter and search the business premises of the
person during business hours; and
(b) in the case of any document on the premises,
10 if the inspector believes, on reasonable
grounds, that it is connected with the alleged
contravention, the inspector may do all or
any of the following--
(i) require the document to be produced
15 for examination;
(ii) examine, make copies or take extracts
from the document, or arrange for the
making of copies or the taking of
extracts to be done on the premises or
20 elsewhere;
(iii) remove the document for so long as is
reasonably necessary to make copies or
take extracts from the document.
(2) An inspector must not enter and search any
25 premises with the consent of the occupier unless,
before the occupier consents to that entry, the
inspector has--
(a) produced his or her identity card for
inspection; and
30 (b) informed the occupier--
(i) of the purpose of the search; and
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Part 11--Enforcement
s. 70
(ii) that the occupier may refuse to give
consent to the entry and search or to the
taking of a document found during the
search; and
5 (iii) that a document taken during the search
with the consent of the occupier may be
used in evidence in proceedings.
(3) If an occupier consents to an entry and search, the
inspector who requested consent must before
10 entering the premises ask the occupier to sign an
acknowledgment stating--
(a) that the occupier has been informed of the
purpose of the search and a document taken
in the search with the consent of the occupier
15 may be used in evidence in proceedings; and
(b) that the occupier has been informed that he
or she may refuse to give consent to the entry
and search or to the taking of a document,
copy or extract; and
20 (c) that the occupier has consented to such an
entry and search; and
(d) the date and time that the occupier
consented.
(4) If an occupier consents to the taking of a
25 document during a search under this section, the
inspector must before taking the document ask the
occupier to sign an acknowledgment stating--
(a) that the occupier has consented to the taking
of the document; and
30 (b) the date and time that the occupier
consented.
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Part 11--Enforcement
s. 71
(5) An occupier who signs an acknowledgment must
be given a copy of the signed acknowledgment
before the inspector leaves the premises.
(6) If, in any proceeding, an acknowledgment is not
5 produced to a court or a tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry and search or
to the taking of the document.
71 Retention and return of documents
10 (1) If an inspector takes a document under this
Division, the inspector must take reasonable steps
to return the document to the person from whom it
was taken if the reason for it being taken no
longer exists.
15 (2) If the inspector has not returned the document to
the person within 21 days after the document is
taken, the inspector must give the person a copy
of the document certified as being a copy of the
document seized by the inspector.
20 72 Requirement to assist inspector during entry
To the extent that it is reasonably necessary to
determine compliance with this Act or the
regulations, an inspector exercising a power of
entry under this Part who produces his or her
25 identity card for inspection by the occupier of the
premises or an agent or employee of the occupier
may require that person--
(a) to give information to the inspector, orally or
in writing; and
30 (b) to give reasonable assistance to the inspector.
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Part 11--Enforcement
s. 73
73 Refusal or failure to comply with requirement
A person must not, without reasonable excuse,
refuse or fail to comply with a requirement of an
inspector under this Part.
5 Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.
Division 4--General
10 74 Offence to hinder or obstruct inspector
A person must not, without reasonable excuse,
hinder or obstruct an inspector who is exercising a
power under this Part.
Penalty: 60 penalty units.
15 75 Offence to impersonate inspector
A person who is not an inspector must not, in any
way, hold himself or herself out to be an
inspector.
Penalty: 60 penalty units.
20 76 Entry to be reported to the chief executive officer
(1) If an inspector exercises a power of entry under
this Part, the inspector must report the exercise of
the power to the chief executive officer within
7 days after the entry.
25 (2) The report must include all relevant details of the
entry including particulars of--
(a) the time and place of the entry; and
(b) the purpose of the entry; and
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Part 11--Enforcement
s. 77
(c) the things done while on the premises,
including details of documents taken, copies
made and extracts taken; and
(d) the time of departure from the premises.
5 77 Register of exercise of powers of entry
The chief executive officer must keep a register
containing the particulars of all matters reported to
the chief executive officer under section 76.
78 Complaints
10 (1) Any person may complain to the chief executive
officer about the exercise of a power by an
inspector under this Part.
(2) The chief executive officer must--
(a) investigate any complaint made to the chief
15 executive officer; and
(b) provide a written report to the complainant
on the results of the investigation.
__________________
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Part 12--Other Enforcement Matters
s. 79
PART 12--OTHER ENFORCEMENT MATTERS
79 Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to
refuse or fail to give information or do any other
5 thing that the person is required to do by or under
this Act, if the giving of the information or the
doing of that other thing would tend to incriminate
the person.
(2) Despite subsection (1), it is not a reasonable
10 excuse for a natural person to refuse or fail to
produce a document that the person is required to
produce by or under this Act, if the production of
the document would tend to incriminate the
person.
15 80 Offence to give false or misleading information
A person must not--
(a) give information to the authority or an
inspector under this Act that the person
believes to be false or misleading in any
20 material particular; or
(b) produce a document to the authority or an
inspector under this Act that the person
knows to be false or misleading in a material
particular without indicating the respect in
25 which it is false or misleading and, if
practicable, providing correct information.
Penalty: 60 penalty units.
81 Service of documents
A written requirement by the authority or an
30 inspector under this Act may be given personally
or by registered post to a person--
(a) at the last known place of business,
employment or residence of the person; or
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Part 12--Other Enforcement Matters
s. 82
(b) in the case of a body corporate, at the
registered office of the body corporate.
82 Conduct of agents imputed to corporations
For the purposes of this Act and the regulations,
5 any conduct engaged in on behalf of a
corporation--
(a) by a director, employee or agent of the
corporation acting within the scope of the
person's actual or apparent authority; or
10 (b) by any other person at the direction, or with
the consent (express or implied) of such a
director, employee or agent--
is also conduct engaged in by the corporation.
83 Conduct of corporations imputed to directors
15 (1) For the purposes of this Act and the regulations,
any conduct engaged in by a corporation (as a
result of the application of section 82 or
otherwise) is also conduct engaged in by an
executive officer of the corporation if the
20 executive officer knew about the conduct or was
reckless as to whether it was engaged in.
(2) In this section--
executive officer of a corporation means--
(a) a director of the corporation; or
25 (b) any other person who is concerned, or
takes part, in the management of the
corporation (regardless of the person's
designation).
84 Aiding and inducing offences
30 A person who--
(a) aids, abets, counsels or procures a person to
contravene; or
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Part 12--Other Enforcement Matters
s. 84
(b) induces a person whether by threats or
promises or otherwise to contravene--
a provision of this Act or the regulations for which
a penalty is specified is guilty of an offence
5 against that provision and is liable to the penalty
specified for a contravention of that provision.
__________________
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Community Services Long Service Leave Bill 2010
Part 13--Court Proceedings
s. 85
PART 13--COURT PROCEEDINGS
85 Proceedings for offences to be brought in Industrial
Division of the Magistrates' Court
If a person is charged with an offence against this
5 Act or the regulations, the charge may be heard,
and all penalties recovered, before the Magistrates'
Court sitting as the Industrial Division (within the
meaning of the Magistrates' Court Act 1989).
86 Who may prosecute?
10 A prosecution for an offence under this Act or the
regulations may only be brought by the authority.
87 Certified copies admissible
A certified copy of a document mentioned in
section 64, 69 or 71(2) is admissible in evidence
15 in all courts and tribunals as if the certified copy
was the original of the document.
__________________
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Community Services Long Service Leave Bill 2010
Part 14--Employment Terminated or Prejudiced
s. 88
PART 14--EMPLOYMENT TERMINATED OR PREJUDICED
88 Definition
In this Part, court means the Industrial Division of
the Magistrates' Court.
5 89 Employment not to be terminated or prejudiced for
exercising rights under this Act
An employer must not--
(a) terminate or threaten to terminate the
employment of an employee; or
10 (b) alter the position of an employee to the
employee's prejudice--
because the employee is entitled to or seeks to
exercise any entitlement or other right under this
Act.
15 90 Reversal of onus of proof in certain circumstances
In a proceeding for a contravention of section 89,
if the employee proves that he or she--
(a) took long service leave; or
(b) applied for long service leave; or
20 (c) otherwise communicated to the employer his
or her intention to take long service leave--
the onus of proving that the termination, threat or
prejudice was not actuated by the reason alleged
by the employee lies on the employer.
25 91 Civil penalty
(1) If an employer contravenes section 89, the
contravention is not an offence, however the court
may make an order imposing a penalty of up to
$10 000 on the employer.
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Part 14--Employment Terminated or Prejudiced
s. 92
(2) An application for an order under subsection (1)
may be made--
(a) by the employee; or
(b) at the request of the employee, by an
5 organisation of which the employee is a
member, or eligible to be a member.
(3) The court may order that the penalty, or a part of
the penalty, be paid--
(a) to a particular person or organisation; or
10 (b) into the Consolidated Fund.
(4) An order imposing a penalty under subsection (1)
is taken, for the purposes of enforcement, to be an
order made by the court in a civil proceeding.
92 Reimbursement, reinstatement and compensation
15 (1) If an employer is found to have contravened
section 89, the court may--
(a) order the employer to pay the employee a
specified sum by way of reimbursement for
the remuneration lost by the employee; and
20 (b) subject to subsection (2), order that the
employee be reinstated in his or her former
position or a similar position.
(2) If the court considers that it would be
impracticable to reinstate the employee, the court
25 may order the employer to pay the employee an
amount of compensation not exceeding the
amount of remuneration of the employee during
the 12 months immediately before the employee's
employment was terminated.
30 (3) An order under subsection (1)(a) or (2) must be
taken to be a judgment debt due by the employer
to the employee and may be enforced in the court
accordingly.
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Part 14--Employment Terminated or Prejudiced
s. 92
(4) The amount of remuneration that would have been
payable to an employee in respect of any period
that his or her employer fails to give effect to an
order under subsection (1)(b) is recoverable as a
5 debt due to the employee by the employer in any
court of competent jurisdiction.
__________________
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Community Services Long Service Leave Bill 2010
Part 15--Miscellaneous
s. 93
PART 15--MISCELLANEOUS
93 Approved forms
(1) The authority may approve forms for use under
this Act.
5 (2) The authority must publish in the Government
Gazette any form approved under this Act.
(3) If a document is required under this Act to be in
the approved form, it is sufficient if the document
is to the like effect of the approved form.
10 94 No contracting out
This Act has effect despite any contract of
employment to the contrary unless the contract
gives the employee rights that are more beneficial
to the employee than the rights given to the
15 employee under this Act.
95 Declaration of corresponding laws
The Minister may, on the recommendation of the
board, declare a law of a State or a Territory to be
a corresponding law by notice published in the
20 Government Gazette.
96 Reciprocal agreements for corresponding laws
(1) The Minister may enter into an agreement with
the Minister of a State or Territory, who
administers a corresponding law, for the payment
25 of long service leave entitlements for employees
in the State or Territory.
(2) Without limiting subsection (1), the agreement
may make provision about--
(a) payments for, or instead of, long service
30 leave; and
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Part 15--Miscellaneous
s. 97
(b) the exchange of information about
employment credits and long service
entitlements of employees between the
authority and a reciprocal authority under the
5 corresponding law; and
(c) anything else relating to long service leave
benefits of employees that the Minister
considers appropriate.
97 Regulations
10 (1) The Governor in Council may make regulations
for or with respect to--
(a) forms for the purposes of this Act;
(b) prescribing a penalty of up to 10 penalty
units for any breach of the regulations;
15 (c) prescribing a person, or class of person, to
be an employer for the purposes of
section 4(1)(b);
(d) prescribing an award or agreement, or class
of award or agreement, for the purposes of
20 section 5(2)(d)(iv);
(e) generally prescribing any other matter or
thing required or permitted by this Act to be
prescribed or necessary to be prescribed to
give effect to this Act.
25 (2) The regulations--
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstance.
__________________
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Part 16--Transitional Provisions
s. 98
PART 16--TRANSITIONAL PROVISIONS
98 First levy payment
Section 52 applies to the payment of the levy for
the first reporting period after the commencement
5 of that section as if the requirement to pay within
28 days after the end of the reporting period were
a requirement to pay within 28 days after the end
of the next following reporting period.
99 Registration of existing employers
10 (1) Subject to subsection (2), section 24 applies to a
person who was an employer immediately before
the commencement of that section.
(2) Despite section 24(1), the person must apply to
the authority for registration as an employer
15 before the end of the reporting period first
occurring after the commencement of that section.
100 Registration of existing employees
(1) Subject to subsection (2), section 25 applies to a
person who was an employer immediately before
20 the commencement of that section.
(2) Despite section 25(1), the person must apply to
the authority before the end of the reporting
period first occurring after the commencement of
section 25 for registration of anyone who was an
25 employee of the employer immediately before the
commencement of that section.
101 Recognition of previous long service leave
entitlement
(1) This section applies to a person--
30 (a) who was an employee immediately before
commencement; and
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Part 16--Transitional Provisions
s. 102
(b) who would be entitled to long service leave
under the Long Service Leave Act 1992, but
for the employee's entitlement to long
service leave under this Act.
5 (2) This section does not apply to a person to whom
section 102 applies.
(3) The period of the person's continuous employment
with the person's primary employer before
commencement must be taken into account when
10 determining the person's entitlement to long
service leave under Part 6.
(4) The part of the person's entitlement to long service
leave that relates to the period of the person's
continuous employment with the person's primary
15 employer before commencement--
(a) must be determined under the Long Service
Leave Act 1992 as if that Act applied to the
person; but
(b) may be enforced by the person against the
20 person's primary employer under this Act.
(5) In this section--
commencement means commencement of
section 38;
primary employer means the employer of the
25 person immediately before commencement.
102 Recognition of previous employment period
(1) This section applies to a person--
(a) who was an employee immediately before
commencement; and
30 (b) who would be entitled to long service leave
under the Long Service Leave Act 1992, but
for--
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Part 16--Transitional Provisions
s. 102
(i) the person's entitlement to long service
leave under this Act; and
(ii) the person's employment with more
than one employer within the meaning
5 given under section 60 of the Long
Service Leave Act 1992.
(2) The period of the person's continuous employment
with the person's primary employer before
commencement must be taken into account when
10 determining the person's entitlement to long
service leave under Part 6.
(3) The part of the person's entitlement to long service
leave that relates to the period of the person's
continuous employment with the person's primary
15 employer before commencement--
(a) must be determined under the Long Service
Leave Act 1992 as if that Act applied to the
person; but
(b) may be enforced by the person against the
20 person's current employer under this Act.
(4) However, the person is not entitled to be paid for
the part of the person's entitlement to long service
leave mentioned in subsection (3) unless the
person requests the primary employer make
25 payment and the primary employer agrees.
(5) In this section--
commencement means commencement of
section 38;
primary employer means the employer of the
30 person immediately before commencement.
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561333B.I-16/9/2010 68 BILL LA INTRODUCTION 16/9/2010
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