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Long Service Leave Act 2018
No. of 2018
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 Act binds the Crown 6
5 Employees to whom this Act does not apply 6
Part 2--Long service leave entitlements 7
6 Entitlement to long service leave 7
7 Long service leave does not include public holidays or annual
leave 7
8 Leave in advance 7
9 What happens if employment ends before leave is taken? 8
10 What is to happen if the employee dies before leave is taken? 8
11 Meaning of one employer 9
12 Meaning of continuous employment 13
13 Periods of absence from work that are taken to be periods of
employment when calculating the length of a period of
continuous employment 17
14 Periods of absence from work not taken to be periods of
employment when calculating the length of a period of
continuous employment 19
15 Meaning of ordinary pay and ordinary time rate of pay 20
16 Normal weekly hours if none fixed or hours changed 20
17 Normal weekly hours and ordinary time rate of pay if working
in suitable employment or absent due to workplace illness or
injury 23
18 Employee may make request for long service leave 23
19 Employer may direct employee to take long service leave 24
20 Payment while on long service leave 24
21 Pay increases while on leave 25
22 Leave at half pay 25
23 Contracting out prohibited 26
i
Clause Page
Part 3--Enforcement 27
Division 1--Industrial Division of the Magistrates' Court 27
24 Jurisdiction of the Industrial Division of the Magistrates' Court 27
25 Proceedings for offences to be brought in Industrial Division of
the Magistrates' Court 28
26 Recovery of money owed 29
27 Order for reimbursement, reinstatement and compensation 30
28 Order for payment of arrears or compensation on conviction 31
Division 2--Authorised officers 32
29 Appointment of authorised officers 32
30 Identity cards 33
31 Power to require information or documents 33
32 Retention of documents 34
33 Confidentiality 34
Division 3--Offences 35
34 Payments in lieu forbidden 35
35 Offences concerning working during long service leave 35
36 Adverse action taken against employee 36
37 Offences concerning long service leave records 38
38 Failing to produce documents or giving false or misleading
documents 41
39 Protection against self-incrimination 41
40 Who can prosecute under this Act? 42
41 Judicial notice of signatures 43
42 Imputing conduct to bodies corporate or other employer 43
43 Criminal liability of officers of bodies corporate--accessorial
liability 43
44 Offences by unincorporated associations 45
Part 4--Preservation of superior long service leave entitlements 46
45 Application of Part 46
46 Definition of award 46
47 Preservation 47
Part 5--Preservation of accrued long service leave entitlements 48
48 Definitions for this Part 48
49 Protection of accrued entitlements 49
Part 6--Disclosure requirements for workplace agreements 50
50 Disclosure of modified or removed long service leave
entitlements 50
Part 7--General 51
51 Long service leave records 51
ii
Clause Page
52 Supreme Court--limitation of jurisdiction 51
53 Regulations 51
54 Transitional regulations 52
Part 8--Repeal of Long Service Leave Act 1992 and savings and
transitional provisions 53
55 Definitions 53
56 Long Service Leave Act 1992 repealed 53
57 Transitional provisions 53
Part 9--Consequential amendments of other Acts and repeal of
this Part 55
58 Education and Training Reform Act 2006 55
59 Delivering Victorian Infrastructure (Port of Melbourne Lease
Transaction) Act 2016 55
60 Outworkers (Improved Protection) Act 2003 55
61 Pre-school Teachers and Assistants (Leave) Act 1984 55
62 Repeal of this Part 56
═══════════════
Endnotes 57
1 General information 57
iii
Long Service Leave Act 2018
No. of 2018
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to make provision with respect to the
long service leave entitlements of certain
employees, including public and private
sector employees and police officers; and
(b) to repeal the Long Service Leave Act 1992;
and
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Part 1--Preliminary
(c) to make consequential amendments to other
Acts.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
1 November 2018, it comes into operation on that
day.
3 Definitions
(1) In this Act--
authorised officer means a person appointed
under section 29;
continuous employment has the meaning given in
section 12;
employee includes--
(a) a person employed by an employer to
do any work for hire or reward and
includes--
(i) an apprentice and any person
whose contract of employment
requires the person to learn or to
be taught an occupation; and
(ii) a casual or seasonal employee;
and
(b) a public sector employee within the
meaning of section 4(1) of the Public
Administration Act 2004; and
(c) a person employed under Part 6 of the
Public Administration Act 2004; and
(d) a director of a public entity within the
meaning of the Public Administration
Act 2004; and
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Part 1--Preliminary
(e) a person appointed under Part 3 of the
Victoria Police Act 2013; and
(f) a person appointed as a police
reservist under section 103 of the
Police Regulation Act 1958 as in force
immediately before the commencement
of section 282 of the Victoria Police
Act 2013;
employer includes--
(a) a person by whom an employee is
employed; and
(b) in the case of a transfer of assets
referred to in section 11, a person who
was not an employer at the time of the
transfer but who is taken to be an
employee's one employer under that
section; and
(c) in the case of a contract for the
performance of work referred to in
section 11, a person who was not an
employer at the time the contract was
entered into but who is taken to be an
employee's one employer under that
section; and
(d) a person or body (corporate or
unincorporate) nominated by the
Governor in Council as the employer
of a person referred to in paragraph (b),
(c), (d), (e) or (f) of the definition of
employee;
employment agreement means the agreement
(whether written or oral) under which an
employee is employed and includes--
(a) a fair work instrument; and
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Part 1--Preliminary
(b) a fair work instrument given
continuing effect under the Fair
Work Transition Act;
Fair Work Act means the Fair Work Act 2009 of
the Commonwealth;
fair work instrument has the same meaning as in
section 12 of the Fair Work Act;
Fair Work Transition Act means the Fair
Work (Transitional Provisions and
Consequential Amendments) Act 2009
of the Commonwealth;
long service leave record includes any register,
certificate, notice, pay sheet or other
document relating to an employee's long
service leave entitlement;
one employer has the meaning given in
section 11;
ordinary pay has the meaning given in
section 15(1);
ordinary time rate of pay has the meaning
given in section 15(2);
organisation means an association of employees
that is registered under the law of any State
or Territory or of the Commonwealth;
other Act includes an Act of the Commonwealth
and of any State or Territory;
parental leave means--
(a) maternity leave; and
(b) paternity leave; and
(c) adoption leave;
person includes an unincorporated body and a
partnership;
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Part 1--Preliminary
reasonable business grounds includes the
following--
(a) there is no capacity to change the
working arrangements of other
employees to accommodate the
employee taking long service leave
at the requested time;
(b) it is impractical to change the working
arrangements of other employees, or
recruit new employees to accommodate
the employee taking long service leave
at the requested time;
(c) the long service leave requested by
the employee is likely to result in a
significant loss in efficiency or
productivity;
(d) the long service leave requested by the
employee is likely to have a significant
negative impact on customer service;
Secretary means the Department Head (within the
meaning of the Public Administration
Act 2004) to the Department of Economic
Development, Jobs, Transport and
Resources.
(2) For the purposes of the definition of casual or
seasonal employee in subsection (1), a casual or
seasonal employee may be employed--
(a) on a part-time or full-time basis; and
(b) by the employer under 2 or more
employment agreements; and
(c) by other employers during the period
referred to in that definition.
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4 Act binds the Crown
This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
5 Employees to whom this Act does not apply
This Act does not apply in relation to an employee
who--
(a) is entitled to long service leave under a
Victorian Act other than this Act, to the
extent of any inconsistency with that other
Victorian Act; or
(b) is entitled to long service leave under an
employment agreement (regardless of
whether it was made before or after the
commencement of this Act), to the extent
of any inconsistency with that employment
agreement if, in the opinion of the Industrial
Division of the Magistrates' Court, the long
service leave entitlements are more
favourable under that agreement than those
provided by this Act; or
(c) is employed by an employer who was
exempted from complying with Division 6 of
Part 5 of the Long Service Leave Act 1992
under section 65 of that Act; or
(d) is employed under Part 2.3 or 2.4 of
the Education and Training Reform
Act 2006; or
(e) is entitled under the Construction Industry
Long Service Leave Act 1997 to long
service leave and to be paid benefits out of
the fund within the meaning of that Act.
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Part 2--Long service leave entitlements
Part 2--Long service leave entitlements
6 Entitlement to long service leave
At any time after completing 7 years of
continuous employment with one employer, an
employee is entitled to an amount of long service
leave on ordinary pay equal to 1/60th of the
employee's total period of continuous employment
less any period of long service leave taken during
that period.
7 Long service leave does not include public holidays
or annual leave
Long service leave does not include any public
holiday occurring, or annual leave taken, during
the period when the long service leave is taken.
8 Leave in advance
(1) An employer may agree to an employee taking
long service leave--
(a) despite the employee not completing
7 years of continuous employment with
the employer; and
(b) at any time before the employee becomes
entitled to the long service leave.
(2) If an employee takes long service leave before
the employee is entitled to the long service leave,
the employee is not entitled to any further long
service leave or payment in lieu of long service
leave for the period of employment in respect of
which the leave in advance was taken.
(3) If an employee takes long service leave before
the employee is entitled to the long service
leave and the employee's employment ends, the
employer may deduct from any payment payable
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to the employee as a result of the ending of the
employment an amount equal to the amount paid
to the employee for the leave (if any) in respect of
which the employee will not become entitled.
9 What happens if employment ends before leave is
taken?
(1) If an employee's employment ends (other than
because of the employee's death) before the
employee has taken all the long service leave to
which the employee is entitled, the employee is
taken to have started long service leave on the day
that the employment ended.
(2) On the day referred to in subsection (1), the
employee's employer must pay the employee the
full amount of the employee's long service leave
entitlement as at that day.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
10 What is to happen if the employee dies before leave
is taken?
(1) If an employee dies before taking all the long
service leave to which the employee is entitled,
the employee's employer must pay to the
employee's personal representative the full amount
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of the long service leave entitlement still owed to
the employee.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(2) If, in relation to a prosecution of an offence
against this section, the employer alleges that the
length of the employee's period of continuous
employment with the employer is wrong in the
charge-sheet, the employer bears the onus of
proving the allegation.
(3) For the purposes of calculating the amount to be
paid under this section--
(a) the ordinary pay of the employee is the
amount the employee was entitled to receive
as at the time of the employee's death for
working the employee's normal weekly
hours at the employee's ordinary rate of pay;
and
(b) any average that needs to be taken for the
purposes of section 15 or 16 is to be taken
over the 52 weeks immediately before the
employee's death.
11 Meaning of one employer
(1) This section sets out several situations in which
an employee is taken, for the purposes of this Act,
to have been employed by one employer despite
having been employed during the relevant period
by more than one employer in a strict legal sense.
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(2) If an employee is employed by a corporation, the
employee is taken to have been employed by the
corporation during any period that the employee
was employed by--
(a) a related body corporate of the corporation
(within the meaning of the Corporations
Act); or
(b) another corporation and--
(i) the directors of that other corporation
and the employee's present employer
were substantially the same; or
(ii) that other corporation and the
employee's present employer
were under substantially the
same management.
(3) If the ownership of a business employing an
employee changes but the employment of the
employee continues--
(a) the employee is taken to have started
employment with the new owner on the date
on which the employee started employment
at that business; and
(b) the new owner must not refuse to provide the
employee any long service leave to which
the employee is entitled, including long
service leave which accrued before the
change of ownership.
(4) Subsection (3) applies regardless of whether the
change of ownership of the business occurred
before or after the commencement of this Act.
(5) If an employee is dismissed from employment by
the owner of a business and is re-employed within
12 weeks after the day of the dismissal by a new
owner of the same business to perform work for
the new owner which is the same (or substantially
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the same) as the work the employee performed for
the former owner, the employee is taken--
(a) to have finished employment with the former
owner on the day before the ownership of the
business changed; and
(b) to have started employment with the new
owner on the day the ownership of the
business changed; and
(c) to have been employed by the new owner
from the day on which the employee first
started employment at that business.
(6) If an employee performs duties in connection with
any assets used in the carrying on of a business
owned by the employee's employer and those
assets are transferred to another employer who
continues the employment of the employee--
(a) the employee is taken to have started
employment with the new owner on the day
on which the employee started employment
at that business; and
(b) the new owner must not refuse to provide
the employee any long service leave to
which the employee is entitled, including
long service leave which accrued before the
transfer.
(7) Subsection (8) applies if--
(a) an employee performs duties in connection
with any assets used in the carrying on of an
employer's business; and
(b) the employee is dismissed by that employer;
and
(c) those assets are transferred to another
employer; and
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(d) within 12 weeks after the day of the
dismissal, the other employer employs the
employee to perform duties in relation to
those assets or other assets of a similar kind.
(8) An employee referred to in subsection (7) is
taken--
(a) to have finished employment with the
employee's former employer on the day
before the assets were transferred; and
(b) to have started employment with the new
employer on the day the assets were
transferred; and
(c) to have been employed by the new employer
from the day on which the employee first
started employment at that business.
(9) Subsection (10) applies if--
(a) an employee performs work in the course
of employment with the employee's
employer (the first-mentioned employer);
and
(b) the first-mentioned employer enters
into a contract with another person
(the second-mentioned employer) for
the performance of work that is the same
(or substantially the same) as the work
performed for the first-mentioned employer;
and
(c) as a consequence of that contract, the
employee ceases employment with the
first-mentioned employer and commences
employment with the second-mentioned
employer.
(10) An employee referred to in subsection (9) is
taken to have started employment with the
second-mentioned employer on the day on
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which the employee started employment with the
first-mentioned employer.
(11) The second-mentioned employer referred to in
subsection (9) must not refuse to provide the
employee any long service leave to which the
employee is entitled, including long service leave
which accrued while the employee was employed
by the first-mentioned employer.
(12) In this section--
assets includes tangible and intangible assets;
business includes a trade, process and occupation
and any part of a trade, process or occupation
and also includes any part of a business;
transfer includes a transmission, conveyance,
assignment or succession, whether by
agreement or by operation of law.
12 Meaning of continuous employment
(1) This section sets out several situations in which an
employee is taken, for the purposes of this Act, to
be continuously employed even though in a strict
legal sense it could be said that the employee's
employment was interrupted.
(2) An employee's employment is taken to be
continuous despite an absence from work caused
by the employee taking--
(a) annual leave; or
(b) long service leave; or
(c) paid or unpaid parental leave (other than in
the case of a casual or seasonal employee);
or
(d) in the case of a casual or seasonal employee,
paid or unpaid parental leave that is not
longer than 104 weeks; or
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(e) carer's leave; or
(f) leave on account of illness or injury; or
(g) any other form of leave not referred to in this
subsection that is provided for under the
relevant employment agreement.
(3) A casual or seasonal employee's employment is
taken to be continuous despite an absence from
work that is longer than 12 weeks, starting at the
end of a particular instance of employment and
ending at the start of another particular instance of
employment if--
(a) the casual or seasonal employee and the
employer so agree before the start of the
absence; or
(b) the absence is due to the terms of
engagement of the casual or seasonal
employee; or
(c) the absence is caused by seasonal factors; or
(d) the employee has been employed by the
employer on a regular and systematic
basis and the employee has a reasonable
expectation of being re-engaged by the
employer.
(4) An employee's employment is taken to be
continuous despite an absence from work caused
by the employer terminating or interrupting the
employment with the intention of avoiding an
obligation in relation to long service leave.
(5) An employee's employment is taken to be
continuous despite an absence arising solely
from the transfer of assets from one employer to
another, if the employee usually performs duties
which are connected with those assets.
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(6) An employee's employment is taken to be
continuous despite an absence from work
caused by the termination of the employee's
employment--
(a) at the initiative of the employer or the
employee, if the employee is re-employed
by the employer within 12 weeks after the
termination; or
(b) because of the expiration of a specified term
of an employment contract, if the employee
is re-employed by the employer within
12 weeks after the expiration; or
(c) because the employee's apprenticeship to
an employer is completed, if the employee
is re-employed by the employer within
52 weeks after the end of the apprenticeship.
(7) An employee's employment is taken to be
continuous despite the employer standing down
the employee during industrial action if--
(a) the employee cannot be usefully employed
because of the industrial action; and
(b) there is no employment agreement that
applies to the employer and the employee
providing for the employer to stand down
the employee in such circumstances.
(8) An employee's employment is taken to be
continuous despite the employer standing
down the employee because of a breakdown of
machinery or equipment for which the employer
cannot reasonably be held responsible if--
(a) the employee cannot be usefully employed
because of the breakdown; and
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(b) there is no employment agreement that
applies to the employer and the employee
providing for the employer to stand down
the employee in such circumstances.
(9) An employee's employment is taken to be
continuous despite the employer standing down
the employee because of a stoppage of work for
any cause for which the employer cannot
reasonably be held responsible if--
(a) the employee cannot be usefully employed
because of the stoppage; and
(b) there is no employment agreement that
applies to the employer and the employee
providing for the employer to stand down
the employee in such circumstances.
(10) In this section--
industrial action means any of the following
kinds of action--
(a) the performance of work by an
employee in a manner different
from that in which it is customarily
performed, or the adoption of a practice
in relation to work by an employee, the
result of which is a restriction or
limitation on, or a delay in, the
performance of the work;
(b) a ban, limitation or restriction on the
performance of work by an employee
or on the acceptance of, or offering for,
work by an employee;
(c) a failure or refusal by employees to
attend for work or a failure or refusal to
perform any work at all by employees
who attend for work;
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(d) an employer prevents an employee
from performing work under the
employee's contract of employment
without terminating that contract.
(11) Despite anything to the contrary in
subsection (10), industrial action does not
include the following--
(a) action by employees that is authorised or
agreed to by the employer of the employees;
(b) action by an employer that is authorised or
agreed to by, or on behalf of, employees of
the employer;
(c) action by an employee if--
(i) the action was based on a reasonable
concern of the employee about an
imminent risk to the employee's health
or safety; and
(ii) the employee did not unreasonably
fail to comply with a direction of the
employer to perform other available
work, whether at the same or another
workplace, that was safe and
appropriate for the employee to
perform.
13 Periods of absence from work that are taken to be
periods of employment when calculating the length
of a period of continuous employment
(1) The following periods of absence from work
referred to in section 12 are taken to be periods of
employment when calculating the length of an
employee's period of continuous employment--
(a) a period of paid leave;
(b) if a period of unpaid leave is less than or is
52 weeks, that period;
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(c) if a period of unpaid leave is more than
52 weeks, the initial 52 weeks;
(d) if a period of unpaid leave is more than
52 weeks, the entire period of unpaid leave
if--
(i) the period of absence is taken to be a
period of employment in accordance
with the relevant employment
agreement; or
(ii) the employer and the employee agreed
in writing before the leave was taken
that the period is taken to be a period of
employment; or
(iii) the leave is taken on account of illness
or injury or is any other form of leave
provided for under the relevant
employment agreement;
(e) a period of absence arising from--
(i) an interruption to, or termination of,
employment caused by the employer
with the intention of avoiding an
obligation in relation to long service
leave; or
(ii) the transfer of assets from one
employer to another if the employee
usually performs duties which are
connected with those assets.
(2) If an employee enters into a contract of
employment with an employer within 52 weeks
after completing an apprenticeship with the
employer, the period of apprenticeship is taken to
be a period of employment when calculating the
length of the employee's period of continuous
employment.
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14 Periods of absence from work not taken to be
periods of employment when calculating the length
of a period of continuous employment
The following periods of absence from work
referred to in section 12 are not taken to be
periods of employment when calculating the
length of an employee's period of continuous
employment--
(a) a period of unpaid leave in excess of
52 weeks (other than the initial 52 weeks)
unless--
(i) the period of absence is taken to be a
period of employment in accordance
with the relevant employment
agreement; or
(ii) the employer and the employee agreed
in writing before the leave was taken
that the period is taken to be a period of
employment; or
(iii) the unpaid leave is taken on account of
illness or injury or is any other form of
leave provided for under the relevant
employment agreement;
(b) an absence following the ending of the
employee's employment described in
section 12(6)(a) or (b);
(c) an absence caused by an employer
standing down the employee described in
section 12(7), (8) or (9).
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15 Meaning of ordinary pay and ordinary time rate of
pay
(1) For the purposes of this Act, and subject to this
section, ordinary pay--
(a) means the pay that an employee is entitled
to receive on the day on which the employee
starts long service leave, calculated on the
employee's normal weekly hours at the
employee's ordinary time rate of pay; and
(b) includes the cash value of any board or
lodging that an employee receives from the
employee's employer.
(2) If an ordinary time rate of pay is not fixed for an
employee's work under the relevant employment
agreement, the employee's ordinary time rate of
pay is the greatest of the following--
(a) the average weekly rate earned by the
employee in the 52 weeks immediately
before the employee starts long service
leave;
(b) the average weekly rate earned by the
employee in the 260 weeks immediately
before the employee starts long service
leave;
(c) the average weekly rate earned by the
employee during the employee's period of
continuous employment with the employer
immediately before the employee starts long
service leave.
16 Normal weekly hours if none fixed or hours changed
(1) This section applies if--
(a) no normal weekly number of hours of work
is fixed for an employee's work under the
relevant employment agreement; or
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(b) the normal weekly number of hours of work
is fixed but is changed one or more times
during the 104 weeks immediately before the
employee starts long service leave.
(2) The employee's normal weekly number of hours
of work is taken to be the greatest of the
following--
(a) in relation to the 52 weeks immediately
before the employee starts long service
leave, the average weekly number of hours
calculated in accordance with the following
formula--
(B + C)
A=
(52 - D)
where--
A is the employee's average weekly
number of hours;
B is the number of hours the employee
worked during the 52 weeks;
C is the number of hours in respect of
which the employee took paid leave
during the 52 weeks;
D is the number of weeks the employee
took unpaid leave during the 52 weeks;
(b) in relation to the 260 weeks immediately
before the employee starts long service
leave, the average weekly number of hours
calculated in accordance with the following
formula--
(B + C)
A=
(260 - D)
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where--
A is the employee's average weekly
number of hours;
B is the number of hours the employee
worked during the 260 weeks;
C is the number of hours in respect of
which the employee took paid leave
during the 260 weeks;
D is the number of weeks the
employee took unpaid leave during
the 260 weeks;
(c) in relation to the employee's last period of
continuous employment immediately before
the employee starts long service leave, the
average weekly number of hours calculated
in accordance with the following formula--
(B + C)
A=
(D - E)
where--
A is the employee's average weekly
number of hours;
B is the number of hours the employee
worked during the last period of
continuous employment;
C is the number of hours in respect of
which the employee took paid leave
during the last period of continuous
employment;
D is the number of weeks of the
employee's last period of continuous
employment;
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E is the number of weeks the employee
took unpaid leave during the last period
of continuous employment.
17 Normal weekly hours and ordinary time rate of pay
if working in suitable employment or absent due to
workplace illness or injury
(1) This section applies if an employee is--
(a) working in suitable employment (within the
meaning of section 3 of the Workplace
Injury Rehabilitation and Compensation
Act 2013); or
(b) absent from work because of a workplace
illness or injury and is in receipt of any
compensation in the form of weekly
payments from the Victorian WorkCover
Authority for that illness or injury.
(2) An employee's normal weekly hours and ordinary
time rate of pay are to be taken to be the greater of
the following--
(a) the employee's normal weekly hours and
ordinary time rate of pay immediately before
the employee starts long service leave;
(b) the employee's normal weekly hours and
ordinary time rate of pay immediately before
the employee developed the relevant illness
or suffered the relevant injury.
Note
Section 16 may apply when determining an employee's
normal weekly hours.
18 Employee may make request for long service leave
(1) An employee may make a request to the
employee's employer to take long service
leave for a period of not less than 1 day.
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(2) An employer must grant an employee's request to
take long service leave as soon as practicable after
receiving the request unless the employer has
reasonable business grounds for refusing the
request.
19 Employer may direct employee to take long service
leave
(1) An employer may direct an employee to take
long service leave at a specified time and for a
specified period by giving the employee at least
12 weeks' written notice.
(2) Subject to an order of the Industrial Division of
the Magistrates' Court, an employee must comply
with a direction given under subsection (1).
20 Payment while on long service leave
(1) An employer must give an employee the pay to
which the employee is entitled in respect of long
service leave in any way and at any time that is
agreed to by the employee and the employer
before the start of the long service leave.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(2) If no agreement exists, an employer must give
an employee the pay to which the employee is
entitled in respect of long service leave in one of
the following ways--
(a) pay in full when the employee starts the long
service leave;
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(b) pay at the same time and in the same manner
as if the employee were not taking long
service leave.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
21 Pay increases while on leave
(1) If the ordinary pay of an employee who is on long
service leave increases, the employee is entitled to
be paid at the increased rate from the time of the
increase.
(2) If the employee was paid in full at the start of
the long service leave or was paid in advance
with respect to any period of the long service
leave, the employer must pay the additional
amount resulting from the increase as soon as
that period ends.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
22 Leave at half pay
(1) An employee may request the employee's
employer to grant the employee a period of long
service leave--
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(a) twice as long as the period to which the
employee would otherwise be entitled; and
(b) at a rate of pay equal to half the employee's
ordinary pay.
(2) An employer must grant a request made under
subsection (1) unless the employer has reasonable
business grounds for refusing the request.
23 Contracting out prohibited
(1) A provision in an employment agreement that
annuls, varies or excludes any provision of this
Act or of the Long Service Leave Act 1992 is of
no effect, regardless of whether the employment
agreement was made before or after the
commencement of this Act.
(2) This section does not affect any provision of an
employment agreement (regardless of whether
it was made before or after the commencement
of this Act), to the extent of any inconsistency
with this Act if, in the opinion of the Industrial
Division of the Magistrates' Court, the long
service leave entitlements are more favourable
under the agreement than those provided by
this Act.
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Part 3--Enforcement
Division 1--Industrial Division of the Magistrates' Court
24 Jurisdiction of the Industrial Division of the
Magistrates' Court
(1) The Industrial Division of the Magistrates' Court
has--
(a) jurisdiction to deal with an application as
to whether an employee is entitled to long
service leave; and
(b) jurisdiction to deal with an application as
to whether an employee (or an employee's
personal representative) is entitled to a
payment in lieu of long service leave; and
(c) jurisdiction to deal with an application as to
an employer's refusal to grant long service
leave under section 18(2); and
(d) jurisdiction to deal with an application as to
a direction to take long service leave under
section 19(1), including the length of long
service leave; and
(e) jurisdiction to deal with an application as to
the rate of ordinary pay of an employee for
the purposes of calculating a long service
leave entitlement; and
(f) jurisdiction to deal with an application as
to an employer's refusal to grant a request
under section 22(2); and
(g) jurisdiction to deal with an application as
to payment of any amount owing to the
employee (or the employee's personal
representative) under this Act within the
6 years immediately before the day on which
the application is made; and
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(h) any other jurisdiction given to it by or under
this or any other Act.
(2) An employee (or an employee's personal
representative) may apply to the Industrial
Division of the Magistrates' Court for an order
in relation to any matter referred to in
subsection (1).
(3) In determining an application under this
section, the Industrial Division of the Magistrates'
Court may take into account all the relevant
circumstances, including the needs of the
employee and the business needs of the employer.
(4) The Industrial Division of the Magistrates' Court
may make an order in relation to any matter
referred to in subsection (1) and may award costs
to any party to the application and assess the
amount of those costs.
(5) The Chief Magistrate, together with 2 or more
Deputy Magistrates, may jointly make rules of
court for or with respect to any matter relating to
the practice and procedure of the Industrial
Division of the Magistrates' Court.
25 Proceedings for offences to be brought in Industrial
Division of the Magistrates' Court
(1) If a person is charged with an offence against this
Act, the charge must be heard, and all penalties
recovered, before the Industrial Division of the
Magistrates' Court.
(2) Despite anything to the contrary in any Act,
the jurisdiction of the Industrial Division of the
Magistrates' Court in relation to any matter
referred to in subsection (1) is exclusive.
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(3) Nothing in this section deprives a person of any
right that the person has under the Criminal
Procedure Act 2009--
(a) to appeal to the County Court against any
sentence imposed by the Industrial Division
of the Magistrates' Court; or
(b) to appeal to the Supreme Court, on a
question of law, from a final order of the
Industrial Division of the Magistrates' Court.
26 Recovery of money owed
(1) For the purposes of this Act, money owed for
long service leave by an employer to an employee
(or to an employee's personal representative) is
taken to be arrears of pay.
(2) An employee to whom money is owed by an
employer for long service leave under this Act or
any other Act, or under an employment agreement
or order made under this Act or any other Act,
may commence a proceeding in the Industrial
Division of the Magistrates' Court to recover the
money owing.
(3) An organisation may, if requested to do so by
an employee who is, or is eligible to become,
a member of the organisation, commence a
proceeding in the Industrial Division of the
Magistrates' Court to recover money owed to
the employee for long service leave.
(4) A proceeding under this section must be
commenced within 6 years after the employee's
entitlement to the money arises.
(5) Before a proceeding may be commenced under
this section, the employee or organisation, as the
case may be, must give the employer a written
demand for the money owed.
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(6) The Industrial Division of the Magistrates'
Court may order an employer to pay interest in
accordance with subsection (7) in addition to any
other amount to which the employee is entitled if
it is satisfied that the employer--
(a) had reasonable notice of the employee's
claim; and
(b) had no reasonable grounds on which to
dispute the claim; and
(c) in the circumstances should have paid the
claim without the need for a proceeding
being commenced to establish the validity
of the claim.
(7) The interest must not be greater than the rate
fixed under section 2 of the Penalty Interest
Rates Act 1983 that applies at the time the order
is made.
(8) If a claim is made under this section by
an employee's personal representative,
subsections (6) and (7) apply despite
anything to the contrary in section 29 of the
Administration and Probate Act 1958.
(9) In this section--
employee includes a former employee;
employer includes a former employer.
27 Order for reimbursement, reinstatement and
compensation
(1) If an employer is found to have contravened
section 36, the Industrial Division of the
Magistrates' 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
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(b) subject to subsection (2), order that the
employee be reinstated in the employee's
former position or a similar position.
(2) If the adverse action constituting the
contravention referred to in subsection (1) was
the dismissal of the employee and the Industrial
Division of the Magistrates' Court considers that it
would be impracticable to reinstate the employee,
the Court may order the employer to pay the
employee an amount of compensation not
exceeding the amount of remuneration of the
employee during the 52 weeks immediately
before the employee's dismissal.
(3) An order under subsection (1)(a) or (2) is taken
to be a judgment debt due by the employer to the
employee and may be enforced in the Industrial
Division of the Magistrates' Court accordingly.
(4) The amount of remuneration that would have been
payable to an employee in respect of any period
that the employer fails to give effect to an order
under subsection (1)(b) is recoverable as a debt
due to the employee by the employer in any court
of competent jurisdiction.
(5) In this section--
employee includes a former employee;
employer includes a former employer.
28 Order for payment of arrears or compensation on
conviction
(1) If the Industrial Division of the Magistrates'
Court finds an employer guilty of an offence
against this Act and that the employer owes an
amount to the employee in relation to long service
leave, the Court may order the employer to pay
the employee any amount still owing to the
employee, in addition to imposing a penalty for
the offence.
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(2) If the Industrial Division of the Magistrates'
Court finds a person (other than an employer)
guilty of an offence against a provision that is
specified in section 43(2), the Court may order
the person to pay an employee compensation
equivalent to the amount still owing to the
employee as a result of the offence, in addition
to imposing a penalty for the offence.
(3) Section 26(6), (7) and (8) applies to this section.
(4) An order under this section may be enforced as if
it were an order made by the Industrial Division of
the Magistrates' Court in a civil proceeding.
(5) If an amount referred to in subsection (1) or (2)
remains to be paid after all reasonable means of
civil enforcement have been tried, the order may
be enforced as if it were a penalty imposed by the
Industrial Division of the Magistrates' Court.
(6) Nothing in this section limits an employee's rights
under section 26, and nothing in that section limits
the power of the Industrial Division of the
Magistrates' Court under this section.
(7) In this section--
employee includes a former employee;
employer includes a former employer.
Division 2--Authorised officers
29 Appointment of authorised officers
(1) The Secretary may, by instrument, appoint a
person employed under Part 3 of the Public
Administration Act 2004 as an authorised
officer for the purposes of this Act.
(2) An authorised officer is subject to the Secretary's
directions in the performance of the authorised
officer's functions or in the exercise of the
authorised officer's powers under this Act.
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(3) A direction under subsection (2) may be of a
general nature or may relate to a specified matter
or to a specified class of matter.
30 Identity cards
(1) An authorised officer must be issued with
an identity card in the form approved by the
Secretary.
(2) The identity card must bear a photograph and the
signature of the authorised officer.
(3) An authorised officer must produce the authorised
officer's identity card for inspection--
(a) before exercising a power under this Act,
other than a requirement made by post,
e-mail or other electronic communication;
and
(b) at any time during the exercise of a power
under this Act, if asked to do so.
Penalty: 10 penalty units.
31 Power to require information or documents
(1) For the purpose of monitoring compliance with
this Act and the regulations, an authorised officer
may by written notice require a person, within a
reasonable period specified in the notice--
(a) to give the authorised officer any
information that the authorised officer
requires; or
(b) to produce to the authorised officer a
document in the custody or control of the
person.
(2) A notice under subsection (1) must--
(a) warn the person that a refusal or failure to
comply with the notice, without reasonable
excuse, is an offence; and
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(b) if directed to a natural person, inform the
person that the person may refuse or fail to
produce documents (other than a record or
other document that the person is required to
keep under this Act) or provide information
if producing the document or providing the
information would tend to incriminate the
person.
(3) An authorised officer may inspect, and make
copies of or take extracts from, a document
produced to the authorised officer under
subsection (1).
32 Retention of documents
(1) An authorised officer may retain a document
produced to the authorised officer for the period
necessary to monitor compliance with this Act and
the regulations.
(2) During the period that the authorised officer
retains a document, the authorised officer must
permit the person otherwise entitled to its
possession to inspect it and make copies of or
take extracts from it.
33 Confidentiality
(1) An authorised officer must not, except to the
extent necessary to monitor compliance with this
Act and the regulations, give to any other person,
whether directly or indirectly, any information
acquired by the authorised officer in performing
that function.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply to the giving of
information--
(a) to a court or tribunal in the course of a legal
proceeding; or
(b) pursuant to an order of a court or tribunal; or
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(c) to the extent reasonably required to enable
the investigation or the enforcement of a
law of Victoria or of any other State or a
Territory or of the Commonwealth; or
(d) with the written authority of the Secretary; or
(e) with the written authority of the person to
whom the information relates.
Division 3--Offences
34 Payments in lieu forbidden
(1) An employer must not give an employee a
payment in lieu of long service leave, or in lieu of
any part of long service leave, except as permitted
under this or any other Act or under the relevant
fair work instrument.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
(2) An employee must not accept any payment in lieu
of long service leave, or in lieu of any part of long
service leave, except as permitted under this or
any other Act or under the relevant fair work
instrument.
Penalty: 12 penalty units.
35 Offences concerning working during long service
leave
(1) An employee who is on long service leave must
not work for hire or reward in relation to the hours
during which the employee is taking long service
leave.
Penalty: 12 penalty units.
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(2) A person must not knowingly employ another
person for hire or reward in relation to the hours
during which that other person is taking long
service leave.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
36 Adverse action taken against employee
(1) An employer must not take adverse action against
an employee because the employee is entitled to
long service leave or any other entitlement under
this Act.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(2) An employer must not take adverse action
against an employee because the employee seeks
to exercise the employee's entitlement to long
service leave or to any other entitlement under
this Act.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
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(3) An employer must not take adverse action against
an employee because the employee makes an
enquiry as to the employee's entitlement to long
service leave or any other entitlement under this
Act.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(4) An employer must not take adverse action against
an employee because the employee applies to the
Industrial Division of the Magistrates' Court for an
order in relation to a direction to take long service
leave under section 19(1), including the length of
long service leave.
Penalty: In the case of a natural person,
12 penalty units for each day during
which the offence continues;
In the case of a body corporate,
60 penalty units for each day during
which the offence continues.
Note
Section 43 applies to an offence against this subsection.
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(5) In a proceeding for an alleged contravention
of subsection (1), (2), (3) or (4), the onus of
proving that the adverse action by the employer
was not actuated by any reason referred to in
subsection (1), (2), (3) or (4), as the case may be,
lies on the employer.
(6) For the purposes of this section, an employer
takes adverse action against an employee if the
employer--
(a) dismisses the employee; or
(b) injures the employee in the employee's
employment; or
(c) alters the position of the employee to the
employee's prejudice; or
(d) discriminates between the employee and
other employees of the employer; or
(e) knowingly or recklessly makes a false
representation about the employee's long
service leave entitlements.
37 Offences concerning long service leave records
(1) An employer must keep a long service leave
record in the form approved by the Secretary.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Notes
1 Section 51 provides that the Secretary may approve a
form for long service leave records.
2 Section 43 applies to an offence against this subsection.
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(2) An employer must keep a long service leave
record relating to an employee during the
employee's period of continuous employment
by the employer.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Notes
1 Section 43 applies to an offence against this subsection.
2 Section 11 sets out several situations in which an
employee is taken, for the purposes of this Act, to have
been employed by one employer despite having been
employed during the relevant period by more than one
employer in a strict legal sense.
(3) An employer must keep a long service leave
record relating to an employee for at least 7 years
after the employee stops working for the
employer.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
(4) An employer must keep a long service leave
record so that it is able to be readily produced to
an authorised officer if the authorised officer
requires its production.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
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(5) A person must not make, without reasonable
excuse, any false or misleading statement in, or
any material omission from, a long service leave
record.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
(6) An employer must not refuse a request by
an employee (or an employee's personal
representative) to provide the employee (or the
personal representative) with a copy of a long
service leave record relating to the employee.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
(7) Despite anything to the contrary in this or any
other Act, a proceeding for an offence against this
section may be commenced by filing a charge
sheet at any time within 6 years after the date on
which the offence is alleged to have been
committed.
(8) In this section--
employee includes a former employee;
employer includes a former employer.
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38 Failing to produce documents or giving false or
misleading documents
(1) A person must not, without reasonable excuse, fail
to comply with a notice to produce documents or
provide information under section 31.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
(2) A person must not produce a document to an
authorised officer that the person knows to be
false or misleading in a material particular
without indicating the respect in which it is false
or misleading and, if practicable, providing
correct information.
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
39 Protection against self-incrimination
(1) It is a reasonable excuse for a natural person
to refuse or fail to give information, produce a
document or do any other thing that the person is
required to do by or under this Act, if the giving
of the information, production of the document or
doing of the thing would tend to incriminate the
person.
(2) Despite subsection (1), it is not a reasonable
excuse for a natural person to refuse or fail to
produce a record or other document that the
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person is required to keep under this Act, if the
production of the record or other document would
tend to incriminate the person.
40 Who can prosecute under this Act?
(1) A prosecution for an offence against this Act
may only be brought by a person employed in
the Department of Economic Development, Jobs,
Transport and Resources under Part 3 of the
Public Administration Act 2004 who is
authorised by the Minister or the Secretary to
bring a prosecution.
(2) An authorisation--
(a) must be in writing; and
(b) may be given generally, or only in relation
to a particular case or cases, or a particular
class of case or cases; and
(c) may be revoked by the person who gave it at
any time by written notice.
(3) The revocation of an authorisation does not affect
a proceeding commenced by a person before that
person's authorisation was revoked unless the
notice of revocation states otherwise.
(4) In a prosecution for an offence under this Act,
the Industrial Division of the Magistrates' Court
must presume, in the absence of evidence to the
contrary, that the prosecutor is authorised to bring
the prosecution.
(5) A prosecution may only be conducted by--
(a) the person authorised to bring the
prosecution; or
(b) an Australian lawyer briefed by the person
authorised to bring the prosecution.
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41 Judicial notice of signatures
All courts must take judicial notice of--
(a) the signature of a person who is, or was at
the time the signature purports to have been
made, the Minister, the Secretary or an
employee to whom section 40(1) applies;
and
(b) the fact that a person referred to in
paragraph (a) held the position the person
purported to hold at the time the signature
purports to have been made.
42 Imputing conduct to bodies corporate or other
employer
(1) For the purposes of this Act, any conduct
engaged in or on behalf of a body corporate or
other employer by an employee, agent or officer
of the body corporate or other employer (as the
case may be) acting within the actual or apparent
scope of employment or apparent authority of the
employee, agent or officer, is conduct also
engaged in by the body corporate or employer.
(2) In this section, officer has the same meaning
given by section 9 of the Corporations Act.
43 Criminal liability of officers of bodies corporate--
accessorial liability
(1) If a body corporate commits an offence against
a provision specified in subsection (2), an officer
of the body corporate also commits an offence
against the provision if the officer--
(a) authorised or permitted the commission of
the offence by the body corporate; or
(b) was knowingly concerned in any way
(whether by act or omission) in the
commission of the offence by the body
corporate.
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(2) For the purposes of subsection (1), the following
provisions are specified--
(a) section 9(2);
(b) section 10(1);
(c) section 20(1);
(d) section 20(2);
(e) section 34(1);
(f) section 36(1);
(g) section 36(2);
(h) section 36(3);
(i) section 36(4);
(j) section 37(1);
(k) section 37(2);
(l) section 37(3);
(m) section 37(5);
(n) section 38(1);
(o) section 38(2);
(p) section 50(1).
(3) Without limiting any other defence available to
the officer, an officer of a body corporate may
rely on a defence that would be available to the
body corporate if it were charged with the offence
with which the officer is charged and, in doing so,
the officer bears the same burden of proof that the
body corporate would bear.
(4) An officer of a body corporate may commit
an offence against a provision specified in
subsection (2) whether or not the body corporate
has been prosecuted for, or found guilty of, an
offence against that provision.
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(5) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
officer, in relation to a body corporate, means--
(a) a person who is an officer (as defined
by section 9 of the Corporations Act)
of the body corporate; or
(b) a person (other than a person referred
to in paragraph (a)), by whatever name
called, who is concerned in, or takes
part in, the management of the body
corporate.
(6) This section does not affect the operation of
section 323 or 324 of the Crimes Act 1958.
44 Offences by unincorporated associations
A proceeding for an offence against this Act by
an unincorporated association may be brought
against any or all members of the committee of
management or other governing body of the
association.
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Part 4--Preservation of superior
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45 Application of Part
This Part applies despite anything to the contrary
in this Act.
46 Definition of award
In this Part--
award--
(a) has the same meaning as it had in the
Workplace Relations Act 1996 of the
Commonwealth as in force immediately
before 27 March 2006; and
(b) includes a term of an award that
was a common rule in Victoria
under section 141, 142 or 493A of the
Workplace Relations Act 1996 of the
Commonwealth as in force immediately
before 27 March 2006; and
(c) in relation to an employee and the
employee's employer, means an
award--
(i) that was binding on the employer
immediately before 27 March
2006 or would have been binding
had the employer been an
employer in the relevant industry
at that time; and
(ii) to which the employee's
employment was subject
immediately before 27 March
2006 or would have been subject
had the employee been employed
by the employer at that time.
46
Long Service Leave Act 2018
No. of 2018
Part 4--Preservation of superior long service leave entitlements
47 Preservation
(1) If, immediately before 27 March 2006, an award
provided a long service leave entitlement that was
more beneficial to an employee in any respect
than the entitlement provided in Part 5 of the
Long Service Leave Act 1992, the employee is
entitled under this Act to that superior entitlement
instead of the employee's relevant entitlement
under this Act.
(2) Subsection (1) applies to an employee whether
or not the employee was employed immediately
before 27 March 2006.
47
Long Service Leave Act 2018
No. of 2018
Part 5--Preservation of accrued long service leave entitlements
Part 5--Preservation of accrued
long service leave entitlements
48 Definitions for this Part
In this Part--
award has the same meaning as it has in Part 4;
protected accrued long service leave entitlement
in relation to an employee means an
entitlement to long service leave--
(a) that accrued by operation of an award
that has subsequently been varied,
set aside, ceased to have effect or
was revoked under Part 10 of the
Workplace Relations Act 1996 of
the Commonwealth; or
(b) that accrued by operation of an award
that is no longer applicable to that
employee under Division 5 of Part 11
of the Workplace Relations Act 1996
of the Commonwealth; or
(c) that accrued by operation of an
employment agreement that has
subsequently been terminated under--
(i) Division 9 of Part 8 of the
Workplace Relations Act 1996
of the Commonwealth; or
(ii) section 170MH of the Workplace
Relations Act 1996 of the
Commonwealth as continued in
operation by clause 2(1)(k) of
Schedule 7 to that Act; or
48
Long Service Leave Act 2018
No. of 2018
Part 5--Preservation of accrued long service leave entitlements
(d) that accrued by operation of an
agreement that is no longer applicable
to that employee under Division 3 or 4
of Part 11 of the Workplace Relations
Act 1996 of the Commonwealth.
49 Protection of accrued entitlements
An employee who is or was at any time entitled to
a protected accrued long service leave entitlement
is entitled to the benefit of that entitlement under
this Act regardless of the status of the award or
agreement under which that entitlement accrued.
49
Long Service Leave Act 2018
No. of 2018
Part 6--Disclosure requirements for workplace agreements
Part 6--Disclosure requirements for
workplace agreements
50 Disclosure of modified or removed long service leave
entitlements
(1) At least 7 days before entering into an
employment agreement that would modify or
remove an employee's entitlements under this
Act, the employer must notify the employee in
writing of the modification or removal (as the
case may be).
Penalty: 12 penalty units in the case of a natural
person;
60 penalty units in the case of a body
corporate.
Note
Section 43 applies to an offence against this subsection.
(2) For the purposes of subsection (1), the notice must
state whether the proposed agreement modifies or
removes any of the following entitlements under
this Act--
(a) an entitlement to long service leave on
completing 7 years of continuous service;
(b) any entitlement arising from the operation of
section 47 or 49.
50
Long Service Leave Act 2018
No. of 2018
Part 7--General
Part 7--General
51 Long service leave records
(1) The Secretary may--
(a) approve the form in which long service leave
records must be kept; and
(b) specify the details to be included in long
service records.
(2) The Secretary must ensure that--
(a) the approved form and any specified details
referred to in subsection (1) are published
on the Internet site of the Department of
Economic Development, Jobs, Transport
and Resources; and
(b) a notice of the approved form and any
specified details is published in the
Government Gazette.
52 Supreme Court--limitation of jurisdiction
It is the intention of this section to alter or vary
section 85 of the Constitution Act 1975 to the
extent necessary to prevent the bringing before the
Supreme Court of a proceeding or matter of a kind
referred to in section 25(1) of this Act.
53 Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or that is
necessary to be prescribed to give effect to this
Act.
(2) A regulation may create an offence punishable by
a penalty not exceeding 20 penalty units.
51
Long Service Leave Act 2018
No. of 2018
Part 7--General
54 Transitional regulations
(1) The Governor in Council may make regulations
containing provisions of a transitional nature,
including matters of an application or savings
nature, arising as a result of the enactment of this
Act, including any repeals and amendments made
by or as a result of the enactment of this Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on or
after a date not earlier than the day on which
this Act comes into operation; and
(b) be of limited or general application; and
(c) differ according to time, place or
circumstance; and
(d) leave any matter or thing to be decided by a
specified person or class of person.
(3) Regulations under this section have effect despite
anything to the contrary in any Act (other than
this Act or the Charter of Human Rights and
Responsibilities Act 2006) or in any subordinate
instrument.
(4) Sections 6 and 7 of the Subordinate Legislation
Act 1994 do not apply to any regulations made
under this section.
(5) This section expires on the second anniversary of
the day on which this Act comes into operation.
52
Long Service Leave Act 2018
No. of 2018
Part 8--Repeal of Long Service Leave Act 1992 and savings and
transitional provisions
Part 8--Repeal of Long Service
Leave Act 1992 and savings and
transitional provisions
55 Definitions
(1) In this Part--
1992 Act means the Long Service Leave
Act 1992;
2018 Act means the Long Service Leave
Act 2018.
(2) A word or expression that is defined in the
1992 Act and is used in this Part in relation
to the 1992 Act has the same meaning as is
given in the 1992 Act.
56 Long Service Leave Act 1992 repealed
(1) The Long Service Leave Act 1992 is repealed.
(2) On and from the commencement of the 2018 Act,
any reference in any Act (other than the 2018 Act
or a regulation under the 2018 Act), regulation,
subordinate instrument or other document
whatsoever to the 1992 Act is to be construed as
a reference to the 2018 Act, unless the contrary
intention appears.
(3) Nothing in this section limits or otherwise affects
the operation of the Interpretation of Legislation
Act 1984.
57 Transitional provisions
(1) Despite anything to the contrary in section 13 of
the 2018 Act, any interruption to an employee's
employment caused by an absence from work not
referred to in section 62(2) or (3) or 62A(1) of
the 1992 Act is taken to interrupt an employee's
continuous employment for the purposes of
53
Long Service Leave Act 2018
No. of 2018
Part 8--Repeal of Long Service Leave Act 1992 and savings and
transitional provisions
section 12 of the 2018 Act if the absence started
before the commencement of the 2018 Act.
(2) If the 2018 Act commences during an employee's
absence from work and that absence is a type
of absence that was not counted as part of the
period of the employee's continuous employment
under section 62, 62A or 63 of the 1992 Act but
is taken to be a period of employment under
section 13 of the 2018 Act, only that part of the
period of absence occurring on and from the
commencement of the 2018 Act is taken to be a
period of employment under section 13 of that
Act.
54
Long Service Leave Act 2018
No. of 2018
Part 9--Consequential amendments of other Acts and repeal of this Part
Part 9--Consequential amendments of
other Acts and repeal of this Part
58 Education and Training Reform Act 2006
In section 5.5.5(3) of the Education and
Training Reform Act 2006, for "section 160 of
the Long Service Leave Act 1992" substitute
"section 26 of the Long Service Leave
Act 2018".
59 Delivering Victorian Infrastructure (Port of
Melbourne Lease Transaction) Act 2016
In section 49(2) of the Delivering Victorian
Infrastructure (Port of Melbourne Lease
Transaction) Act 2016, for "Long Service
Leave Act 1992" substitute "Long Service
Leave Act 2018".
60 Outworkers (Improved Protection) Act 2003
(1) In section 3 of the Outworkers (Improved
Protection) Act 2003, in the definition of
relevant industrial legislation, for paragraph (b)
substitute--
"(b) the Long Service Leave Act 2018;".
(2) For section 4(2)(c) of the Outworkers
(Improved Protection) Act 2003, substitute--
"(c) the Long Service Leave Act 2018;".
61 Pre-school Teachers and Assistants (Leave)
Act 1984
(1) For section 4(1)(b) of the Pre-school Teachers
and Assistants (Leave) Act 1984 substitute--
"(b) under the Long Service Leave Act 2018
(except section 6)--".
55
Long Service Leave Act 2018
No. of 2018
Part 9--Consequential amendments of other Acts and repeal of this Part
(2) In section 4(2)(b) of the Pre-school Teachers and
Assistants (Leave) Act 1984, for "Division 6 of
Part 5 of the Long Service Leave Act 1992"
substitute "the Long Service Leave Act 2018".
(3) In section 5(d) of the Pre-school Teachers and
Assistants (Leave) Act 1984, for "section 60(6)
of the Long Service Leave Act 1992" substitute
"section 11(6) of the Long Service Leave
Act 2018".
62 Repeal of this Part
This Part is repealed on 1 June 2019.
Note
The repeal of this Part does not affect the continuing operation
of the amendments made by this Part (see section 15(1) of the
Interpretation of Legislation Act 1984).
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56
Long Service Leave Act 2018
No. of 2018
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to make
provision for the long service entitlements of certain employees, to repeal
the Long Service Leave Act 1992, to make consequential amendments to
various other Acts and for other purposes."
By Authority. Government Printer for the State of Victoria.
57
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