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Long Service Leave Bill 2017
Amended Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 outlines the purposes of the Bill, which is to make provision
for the long service leave entitlements of Victorian employees,
to repeal the Long Service Leave Act 1992, and to make
consequential amendments to other Acts.
Clause 2 provides that the Bill comes into operation on a day to be
proclaimed. If the Bill is not proclaimed, the default
commencement date is 1 November 2018.
Clause 3 subclause (1) defines various words and expressions used in the
Bill, including--
• continuous employment that has the meaning given
in clause 12. That clause sets out how various absences
from work are to be treated for the purposes
of determining the employee's period of continuous
service;
• employee, which means a person employed by an
employer to work for hire or reward and includes an
apprentice and a person learning or being taught an
occupation and a casual or seasonal employee;
• employer has its normal meaning and includes certain
other persons in specified situations such as when assets
are transferred.
Subclause (2) states that for the purposes of defining what is a
casual or seasonal employee in subclause (1), a casual or
seasonal employee may be employed on a full time or part time
581125 1 BILL LA AMENDED 9/3/2018
basis, by the employer under more than one employment
agreement, and by more than one employer during a defined
period.
Clause 4 provides that the Bill binds the Crown in the right of Victoria,
and the Crown in all its other capacities, so far as the legislative
power of the Parliament permits.
Clause 5 sets out those employees to whom the Bill does not apply.
This includes an employee who receives long service leave under
another Victorian Act, or under an employment agreement, if the
Industrial Division of the Magistrates' Court is of the opinion that
the alternative arrangement is more favourable to the employee
than the Bill provides.
Part 2--Long service leave entitlements
Clause 6 sets out the entitlement to long service leave. On completing
7 years' continuous employment with one employer, an employee
is entitled to an amount of leave on ordinary pay. Long service
leave is accrued at the rate of 1/60th of an employee's period of
continuous service. Therefore, to calculate an employee's
entitlement to long service leave at any time after the employee
has worked for at least 7 years with one employer, the period
of continuous service is divided by 60, and any long service
leave already taken by the employee is then deducted.
This arrangement differs from the 1992 Act in that an employee
will be able to take accrued long service leave after 7 years of
completed service. Under the current Act a minimum of
10 years' service is required before an employee may take leave,
although the entitlement crystallises at 7 years.
Clause 7 provides that any public holiday, or period of annual leave
occurring during a period of long service leave is not included as
part of that period of leave. A public holiday or period of annual
leave will therefore be additional to any period of long service
leave.
Clause 8 subclause (1) allows an employer and employee to agree to the
employee taking long service leave even if the employee has not
completed 7 years continuous service.
2
Subclause (2) provides that if the employee takes long service
leave in advance, the employee is not entitled to any further long
service leave entitlement in respect of the period for which the
leave was taken in advance.
Subclause (3) enables an employer to deduct an amount equal to
the amount paid to the employee from the employee's payment if
leave is taken in advance and the employment ends before the
completion of 7 years' continuous service.
Clause 9 subclause (1) provides that if employment ends before the
employee has taken all the leave they are entitled to, the
employee is considered to have started long service leave on
the day that the employment ended. This does not apply to a
situation where the employee has died.
Subclause (2) provides that on the day that the employment
ends the employer must pay the employee the full amount of the
employee's long service leave entitlement as of that date.
A penalty of 12 penalty units (in the case of a natural person) or
60 penalty units (in the case of a body corporate) applies to this
provision. As this is a "continuing offence" the penalty applies
for each day during which the offence continues.
Clause 10 subclause (1) provides that if the employee dies before taking all
the long service leave to which they are entitled, the employer
must pay the full long service leave entitlement owed to that
employee to the employee's personal representative.
Failure to do so is a continuing offence and the penalty applies
for each day on which the offence continues.
Subclause (2) provides that in a prosecution for an offence
against this clause, the employer bears the onus of proving that
the length of the employee's service on the charge sheet is wrong.
Subclause (3) provides that when calculating the entitlement
under this clause, the ordinary pay of the employee is the pay the
employee was receiving at the time of their death for working
their normal weekly hours at their ordinary rate of pay.
Clause 11 describes what is meant by the term one employer.
Subclause (1) provides that the clause describes a number of
situations in which an employee is, for the purposes of the Bill,
taken to have been employed by one employer. They include
3
where the employer is employed by a related corporate entity, or
where a business has been sold and the employee is employed by
the new owner of the business. In these situations the new owner
is liable for any accrued long service leave entitlement.
Subclause (2) states that if an employee is employed by a
corporation, the employee is taken to have been employed by
that corporation if at any time they were employed by a related
body corporate, or by another corporation if the directors of
that corporation and the employee's present employer are
substantially the same, or the other corporation and the
employee's present employer were under substantially the
same management.
Subclause (3) provides that employment of an employee
employed at a business that changes hands continues, and the
employee is considered to have started employment with the
new owner on the date on which the employee first commenced
employment with that business. The new owner must not refuse
to provide long service leave to the employee, including any long
service leave that accrued prior to the change of ownership.
Subclause (4) provides that subclause (3) applies to a change of
ownership before or after the commencement of the Bill.
Subclause (5) provides that if an employee is dismissed by the
owner of a business, but is then reemployed by the new owner
within 12 weeks to perform the same, or similar work, the
employee is taken to have finished employment with the former
employer on the day before the ownership of the business
changed, and to have started employment with the new employer
on the day ownership was transferred, and to have been
employed by the new employer from the day on which the
employee first commenced employment in that business.
Subclause (6) provides that if an employee performs duties in
connection with any assets used in carrying out the employer's
business, and those assets are transferred to another employer
who continues the employment of the employee, the employee is
considered to have started employment with the new owner on
the day on which the employee started employment in that
business. Further, the new owner must not refuse to provide the
employee their long service leave entitlement, including any
entitlement that accrued before the transfer of the assets occurred.
4
The term assets includes both a tangible and intangible asset.
Under the 1992 Act assets only includes land, plant and
equipment.
Subclause (7) provides that subclause (8) applies if an employee
performs duties in connection with any assets used by the
business, and the employee is dismissed by that employer, and
those assets are transferred to another employer, and within
12 weeks after the employee is dismissed, the other employer
employs the employee to perform work in relation to those, or
similar, assets.
Subclause (8) provides that an employee referred to in subclause
(7) is considered to have finished employment with their former
employer on the day before the assets were transferred, and to
have started employment with the new employer on the day the
assets were transferred, and to have been employed by the new
employer on the day on which the employee first commenced
employment in that business.
Subclause (9) describes a situation where the employee's
employer enters into a contract with another employer provide
work that is the same or much the same, and as a consequence,
the employee ceases employment with their employer and
commences employment with that second employer. This could
be described as an "outsourcing" arrangement. In this situation
the employee is taken to have started employment with the
second employer on the day on which the employee commenced
employment with the first employer. This situation would also
apply where the second employer ceases to provide work, and the
work, and the employee, returns to the first employer. In such a
situation subclause (10) will apply.
Subclause (10) states that an employee referred to in subclause
(9) is taken to have started employment with the second
employer on the day on which they started work with the first
employer.
Subclause (11) states that the second employer must not refuse
to provide any long service leave the employee accrued whilst
working for the first employer.
Subclause (12) includes a number of definitions, for the purposes
of this clause.
5
Clause 12 subclause (1) describes what is meant by the term continuous
employment.
Subclause (2) states that an employee's employment is taken
to be continuous despite an absence from work caused by the
employee taking various specified types of leave. In the case of a
casual or seasonal employee, employment will also be continuous
if the absence is caused by that employee taking paid or unpaid
parental leave of up to 104 weeks. This provision clarifies the
rights of casual and seasonal employees to take unpaid parental
leave in accordance with the Commonwealth Fair Work
Act 2009, without affecting the employee's continuity of
employment.
Subclause (3) states that a casual or seasonal employee's
employment is also taken to be continuous despite the absence
from work being greater than 12 weeks if certain other criteria
are met.
Subclause (4) states that an employee's employment is taken to
be continuous if the absence from work is caused by the
employer terminating or interrupting the employment with the
intent of avoiding a long service leave obligation.
Subclause (5) provides that an employee's employment is taken
to be continuous if the absence arises solely from the transfer of
assets from one employer to another and the employee usually
performs work in relation to those assets.
Subclause (6) states that an employee's employment is taken to
be continuous if the absence is caused by--
• the termination of employment, at the initiative of either
the employer or the employee, and the employee is
reemployed by the employer within 3 months of the
termination. Under the 1992 Act, this provision only
applied to situations where the termination of
employment was at the initiative of the employer; or
• a contract term expiring, if the employee is reemployed
by the employer within 3 months of the expiration; or
• the employee's apprenticeship ending, if the employee
is reemployed by the employer within 12 months of the
completion of the apprenticeship.
6
Subclause (7) provides that an employee's employment is taken
to be continuous despite the standing down of the employee
because of industrial action (defined in subclause (10)), in
certain circumstances. This is similar to arrangements in
section 524 of the Commonwealth Fair Work Act 2009 which
sets out situations where an employer may stand down an
employee without pay during a period in which the employee
cannot usefully be employed.
Subclause (8) provides that an employee's employment is taken
to be continuous despite the standing down of the employee
because of a breakdown in machinery or equipment for which
the employer cannot be reasonably held accountable, in certain
circumstances.
Subclause (9) provides that an employee's employment is taken
to be continuous despite the standing down of the employee
because of a stoppage of work for any reason, for which the
employer cannot be reasonably held accountable in certain
circumstances.
Subclause (10) defines industrial action for the purposes of this
clause.
Subclause (11) excludes certain actions from the definition.
Clause 13 subclause (1) describes those periods of absence that are included
when calculating an employee's period of continuous service.
The Bill provides that a period of unpaid parental leave up to
52 weeks (or longer if agreed by the parties) will be included
when calculating an employee's period of continuous service.
This is a change from the 1992 Act, which does not include a
period of unpaid parental leave when calculating the period of
continuous service.
Subclause (2) provides that if an employee enters into a
contract of employment with an employer within 12 months of
completing an apprenticeship with that employer, the period of
the apprenticeship is included in the period of employment.
Clause 14 describes those periods of absence from work that are not taken
to be periods of employment when calculating the period of
continuous employment. Whilst these absences are not included
when determining the period of continuous service, these
absences do not break the employee's continuity of employment.
7
Clause 15 subclause (1) says that ordinary pay means the pay that an
employee is entitled to receive on the day on which they start
long service leave. This is calculated on their normal weekly
number of hours, at their ordinary time rate of pay. This includes
the cash value of any board or lodging.
Subclause (2) applies to situations where an ordinary time rate of
pay is not fixed. In such cases the employee's ordinary time rate
of pay is the greatest of the following--
• the average weekly rate earned in the 52 weeks
immediately before the employee starts long service
leave;
• the average weekly rate earned in the 260 weeks
immediately before the employee starts long service
leave;
• the average weekly rate earned during the employee's
period of continuous service with the employer.
This represents a change from the 1992 Act, whereby
the averaging is only calculated on either the 52 weeks
prior to the commencement of the leave, or 260 weeks
prior, whichever is the greater, providing a fairer
arrangement.
Clause 16 subclause (1) provides that the clause sets out what happens if
there are no fixed hours of work, or the hours of work change.
Subclause (2) describes how an employee's normal weekly
number of hours of work is to be calculated in the circumstances
set out in subclause (1). This provision applies to all employees,
including casual and seasonal employees.
Clause 17 subclause (1) provides that the clause applies to a situation where
the employee is working in suitable employment or is absent
from work due to a workplace illness or injury and is in receipt of
weekly compensation payments under that Act.
Subclause (2) states that in these circumstances the employee's
normal weekly hours and ordinary time rate of pay are taken to
be the greater of--
• the employee's normal weekly hours and the ordinary
time rate of pay, immediately before the employee starts
long service leave; or
8
• the employee's normal weekly hours and the ordinary
time rate of pay, immediately before the employee
developed the illness or injury.
Where an employee subject to this clause has no fixed hours of
work, or their hours of work have changed, the arrangements
described in clause 16(1) or (2) will apply.
Clause 18 outlines the right of the employee to request long service leave.
Subclause (1) states that an employee may request long service
leave for a period of not less than one day. The 1992 Act
requires that long service leave be taken in either 2 or 3 periods.
Subclause (2) states that an employer must grant the employee's
request to take long service leave as soon as practicable, and
describes the circumstances where an employer may refuse an
employee's application to take long service leave. If the
employee's application to take leave is refused by an employer,
an employee has a right under clause 24(2) to make an
application to the Industrial Division of the Magistrates' Court.
Clause 19 subclause (1) provides that an employer may direct an employee
to take long service leave at a specified time and for a specified
period. The employer is required to provide the employee with
12 weeks' written notice that long service leave is to be taken, as
well as specifying the period of that leave.
Subclause (2) states the employee must comply with such a
direction, subject to any order of the Industrial Division of the
Magistrates' Court.
Clause 20 describes how an employee is to be paid whilst on long service
leave.
Subclause (1) provides that an employer must pay the employee
in the way and at the time that is agreed by the employer and
employee before the start of the long service leave.
A penalty of 12 penalty units (in the case of a natural person) or
60 penalty units (in the case of a body corporate) applies to this
provision. As this is a "continuing offence" the penalty applies
for each day during which the offence continues.
Subclause (2) deals with the employer's obligation if the parties
have not agreed as to the time and method of payment.
9
A penalty of 12 penalty units (in the case of a natural person) or
60 penalty units (in the case of a body corporate) applies to this
provision. As this is a "continuing offence" the penalty applies
for each day during which the offence continues.
Clause 21 sets out what is to occur in situations where the employee's
ordinary pay increases whilst the employee is on long service
leave.
Subclause (1) provides that if the employee's ordinary pay
increases whilst they are on long service leave, the employee is
entitled to be paid at the increased rate from the time of that
increase.
Subclause (2) requires the employer to pay the additional amount
resulting from the increase where the employee has already been
paid.
A penalty of 12 penalty units (in the case of a natural person) or
60 penalty units (in the case of a body corporate) applies to this
provision. As this is a "continuing offence" the penalty applies
for each day during which the offence continues.
Clause 22 allows an employee to request leave at half pay.
Subclause (1) provides that an employer and an employee may
agree to the employee taking twice the period of long service
leave, at half the rate of pay.
Subclause (2) provides that an employer must grant this
request unless the employer has reasonable business grounds
(as defined in clause 3 of this Bill) for refusing the request.
Clause 23 prohibits the contracting out of long service leave entitlements.
Subclause (1) provides that an employment agreement that
purports to change or exclude any provision of this Bill or its
predecessor is of no effect, regardless of when that agreement
was made. This includes any employment agreement whether
entered into prior to the commencement or after employment
commences. It includes any deed of agreement or settlement
purporting to allow for an amount in lieu of a long service leave
entitlement that is less than the full amount owed to the employee
or their representative.
10
Subclause (2) states that the clause does not affect any provision
of an employment agreement, whether that agreement was
entered into before or after the Bill came into force, to the extent
of any inconsistency with the Bill. This is provided that, in the
opinion of the Industrial Division of the Magistrates' Court, the
long service leave entitlements provided for in that employment
agreement are more favourable than those provided by the Bill.
Part 3--Enforcement
Division 1--Industrial Division of the Magistrates' Court
Clause 24 outlines the jurisdiction of the Industrial Division of the
Magistrates' Court in relation to long service leave.
Subclause (1) sets out the Court's jurisdiction.
Subclause (2) provides that an employee or their representative
may make an application to the Industrial Division of the
Magistrates' Court for an order in relation to any matter referred
to in subclause (1).
Subclause (3) states that in determining an application under this
clause, the Court may take into account all relevant
circumstances, including the needs of the employee and the needs
of the business.
Subclause (4) states that the Court may make an order in relation
to any matter referred to in subclause (1) and may award costs to
any party to the application.
Subclause (5) states that the Chief Magistrate together with 2 or
more Deputy Magistrates, may jointly make rules of court for any
matter relating to the practice and procedure of the Court.
Clause 25 states that proceedings for offences must be brought in the
Industrial Division of the Magistrates' Court.
Subclause (1) states that if a person is charged with an offence
against the Bill, the charge must be heard, and all penalties
recovered, before the Industrial Division of the Magistrates'
Court.
Subclause (2) provides that the jurisdiction under subclause (1)
is exclusive jurisdiction.
11
Subclause (3) provides that nothing in the clause deprives a
person of any right of appeal to the County Court against a
sentence imposed by the Industrial Division of the Magistrates'
Court or to the Supreme Court on a question of law, under the
Criminal Procedure Act 2009.
Clause 26 describes the process for recovering monies.
Subclause (1) states that for the purposes of the Bill, money owed
for long service leave is taken to be arrears of pay.
Subclause (2) states that an employee to whom money is owed
for long service leave under this Bill, any other Act, or under an
employment agreement or order made under this or any other Act
may commence a proceeding to recover the money owing in the
Industrial Division of the Magistrates' Court.
Subclause (3) states that an organisation may, if requested to do
so by the employee who is a member, or eligible to be a member
of that organisation, commence a proceeding in the Industrial
Division of the Magistrates' Court to recover monies owing.
Subclause (4) states that a proceeding under this clause must be
commenced within 6 years after the entitlement arises.
Subclause (5) states that before a proceeding under this clause
is commenced, the employee or their organisation must give the
employer a written demand for the money owed.
Subclause (6) allows the Court to order an employer to pay
interest on any amount owed to the employee, if the Court
is satisfied that the employer had reasonable notice of the
employee's claim, and the employer had no reasonable ground
to dispute the claim, and the employer should have paid the
claim without the need for a proceeding to establish the validity
of the claim.
Subclause (7) states that the interest must be no greater than
the rate fixed under section 2 of the Penalty Interest Rates
Act 1983 as at the time the order is made.
Subclause (8) states that if the claim is made under this clause by
an employee's representative, subclauses (6) and (7) apply
despite anything to the contrary in section 29 of the
Administration and Probate Act 1958.
Subclause (9) provides that in this clause employee includes a
former employee and employer includes a former employer.
12
Clause 27 relates to orders for reimbursement, reinstatement and
compensation.
Subclause (1) states that if an employer is found to have
contravened clause 36, the Industrial Division of the Magistrates'
Court may order the employer to pay the employee a sum by way
of reimbursement for the employee's lost remuneration, and may
also order that the employee be reinstated to their former
position, or a similar position.
Subclause (2) states that if the adverse action was the dismissal of
the employee, and the Court considers that reinstatement is not
practical, the Court may order that the employer pay the
employee an amount up to, but no greater than, what the
employee earned during the 52 weeks immediately before the
dismissal.
Subclause (3) states that an order under subclause (1)(a) or
subclause (2) is taken to be a debt due by the employer that may
be enforced in the Industrial Division of the Magistrates' Court.
Subclause (4) states that the amount of remuneration that would
have been payable to an employee in respect of subclause (1)(b)
that the employer fails to pay is recoverable as a debt due to the
employee in any court of competent jurisdiction.
Subclause (5) states that in this clause employee includes a
former employee and employer includes a former employer.
Clause 28 provides that the Court may make an order for payment of arrears
or compensation on conviction.
Subclause (1) states that if the Industrial Division of the
Magistrates' Court finds a person (as defined in clause 3 of
the Bill), other than an employer, guilty of an offence against a
provision in clause 43(2) of the Bill, the Court may order the
person to pay the employee an amount of compensation.
The amount is to be equivalent to any amount still owed to the
employee. This is in addition to any penalty imposed by the
Court. This may apply to situations where the business that
employed the employee is no longer extant, and therefore a
former employee will have an avenue to recover unpaid long
service leave entitlements from a former Director of the business.
Subclause (2) states that if the Industrial Division of the
Magistrates' Court finds an employer guilty of a specified
offence under this Bill, and the employer owes money to the
13
employee, or the employee's representative in respect of a long
service leave entitlement, the Court may order the employer to
pay the employee (or their representative) any amount is still
owed, in addition to imposing any penalty for the offence.
Subclause (3) states that subclauses (6), (7) and (8) of clause 26
apply to this clause.
Subclause (4) states that an order under this clause may be
enforced as if it were an order made by the Industrial Division of
the Magistrates' Court in a civil proceeding.
Subclause (5) states that if an amount referred to in subclause (1)
or (2) remains unpaid after all reasonable means of civil
enforcement have been tried, the order may be enforced as it
were a penalty imposed by the Court.
Subclause (6) states that nothing in this clause limits an
employee's rights under clause 26, and that nothing in clause 27
limits the power of the Court in this clause.
Subclause (7) states that in this clause employee includes a
former employee and employer includes a former employer.
Division 2--Authorised officers
Clause 29 describes the appointment of authorised officers and provides
that they are to exercise functions or powers under the Bill in
accordance with the directions of the Secretary.
Clause 30 relates to identity cards issued to authorised officers.
Clause 31 sets out the power of authorised officers to require information
or documents. This is a new power. The 1992 Act does not
allow authorised officers to require the production of documents,
although they may request that the employer provide documents.
Subclause (1) states that in order to monitor whether the Bill and
the regulations have been complied with, an authorised officer
may request in writing that a person provide any information that
the authorised officer requires, or produce any document in the
possession or control of that person. The request may specify a
reasonable time in which the request must be complied with.
Subclause (2) states that the notice must warn the person that a
failure to comply with the notice, without reasonable excuse,
is an offence, and if the notice is directed to a natural person,
14
it must inform them that the person may refuse to produce the
document or information (other than a record or document that
the Bill requires to be kept) if it would tend to incriminate them.
Subclause (3) empowers an authorised officer to inspect, or make
copies or take extracts from a document.
Clause 32 subclause (1) provides that an authorised officer may retain a
document for the period necessary to monitor compliance with
this Bill and the regulations.
Subclause (2) provides that if a document is being retained,
the authorised officer must allow the owner of the document
to inspect it, make copies, or take extracts from it.
Clause 33 deals with confidentiality of information.
Subclause (1) states that an authorised officer must not give any
other person information they have acquired, except to the extent
required to monitor compliance with this Bill and the regulations.
A penalty of 60 penalty units applies to this provision.
Subclause (2) states that subclause (1) does not apply to the
giving of information--
• to a court or tribunal in the course of a legal proceeding;
or
• pursuant to a court or tribunal order; or
• to the extent reasonably required to enable an
investigation or enforcement of a law of any state,
territory or the Commonwealth; or
• with the written authority of the Secretary; or
• with the written authority of the person to whom the
information relates.
Division 3--Offences
Clause 34 prohibits payments in lieu of long service leave.
Subclause (1) states that an employer must not give an employee
a payment in lieu of long service leave, or in lieu of part of a long
service leave entitlement, except as permitted by this or any other
Act or under the relevant fair work instrument.
15
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (2) states that an employee must not accept such a
payment in lieu, except as permitted by this or any other Act
or under the relevant fair work instrument.
A penalty of 12 penalty units applies to this provision.
Clause 35 outlines offences concerning working during long service leave.
Subclause (1) states that an employee must not work for hire or
reward whilst on long service leave. This only applies to the
hours during which the employee is taking long service leave.
In other words, if an employee works 2 jobs, and takes long
service leave from one of those jobs, it is not an offence against
this clause for the employee to continue to work that second
job, provided the hours of work for that second job do not
change to apply to the hours that the employee would normally
be working the job they are on leave from. An example would be
an employee who takes long service leave from their week-day
job, but continues to work their weekend job.
A penalty of 12 penalty units applies to this provision.
Subclause (2) states that a person must not knowingly employ
another person for hire or reward if that person is on long service
leave, during the hours that the person is on long service leave.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Clause 36 prohibits an employer taking adverse action against an employee
in certain circumstances. Adverse action means generally
treating an employee less favourably than they otherwise would
be treated, including less favourably than other employees.
Subclause (1) states that an employer must not take adverse
action against an employee because the employee is entitled to
long service leave or any other entitlement under the Bill.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision. As this is a "continuing offence" the penalty
applies for each day during which the offence continues.
16
Subclause (2) states that an employer must not take adverse
action against an employee because the employee seeks to
exercise their entitlement to long service leave or any other
entitlement under this Bill.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision. As this is a "continuing offence" the penalty
applies for each day during which the offence continues.
Subclause (3) states that an employer must not take adverse
action against an employee because the employee makes an
inquiry with respect to their entitlements to long service leave
or any other entitlement under this Bill.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision. As this is a "continuing offence" the penalty
applies for each day during which the offence continues.
Subclause (4) states that an employer must not take adverse
action against an employee because the employee exercises
their right under clause 24(1)(c) to challenge the employer's
direction in the Industrial Division of the Magistrates' Court.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision. As this is a "continuing offence" the penalty
applies for each day during which the offence continues.
Subclause (5) states that in a proceeding for an alleged
contravention of subclauses (1), (2), (3) or (4), the employer
bears the onus of proving that the adverse action was not
actuated by any reason referred to in those subclauses.
Subclause (6) states that an employer takes adverse action against
an employee if they--
• dismiss the employee; or
• injure the employee in their employment; or
• alter the employee's position to their prejudice; or
• discriminate between the employee and other
employees; or
• knowingly or recklessly make a false representation
about the employee's long service leave entitlements.
17
Clause 37 sets out offences relating to record keeping.
Subclause (1) states that an employer must keep a long
service leave record in the form approved by the Secretary.
The approved form is available from the Department's
website.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (2) states that an employer must keep a long service
leave record during the employee's period of continuous
employment.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (3) states that an employer must keep a long service
leave record for at least 7 years after the employee ceases work
with that employer.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (4) states that an employer must keep a long service
leave record so that it is able to be readily produced to an
authorised officer at the request of the authorised officer.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (5) states that a person must not make a false or
misleading statement in relation to a long service leave record,
or make a material omission, without reasonable excuse.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (6) states that an employer must not refuse a request
to provide a copy of the long service leave record, made by an
employee, or their representative.
18
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (7) states that despite anything contrary in this Bill
or any other Act, a proceeding for an offence against this clause
may be commenced by filing a charge sheet within 5 years of the
alleged offence having been committed.
Subclause (8) states that in this clause employee includes a
former employee and employer includes a former employer.
Clause 38 subclause (1) states that a person must not fail to comply with
a notice to produce documents or provide information under
clause 31, without reasonable excuse.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (2) states that a person must not provide an
authorised officer with a document that the person knows
to be false or misleading, without identifying the aspect that
is false or misleading, and if practicable providing correct
information.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Clause 39 provides protection against self-incrimination.
Subclause (1) states that a natural person may refuse or fail to
give information, or produce a document or otherwise comply
with a requirement of this Bill, if doing so would tend to
incriminate them.
Subclause (2) states that notwithstanding subclause (1) it is
not a reasonable excuse for a natural person to refuse to produce
a document that the employer is required by the Bill to keep.
Clause 40 describes who can prosecute under the Bill.
Subclause (1) states that a prosecution for an offence against this
Bill can only be brought by a Departmental Officer who has been
authorised by the Minister or the Secretary to bring a prosecution.
19
Subclause (2) states that such an authorisation must be in writing,
and may be given generally or only in relation to a particular case
or cases. The person who gave the authorisation may withdraw it
at any time.
Subclause (3) states that if an authorisation to prosecute is
withdrawn, it does not affect a proceeding that has already
commenced, unless the notice of withdrawal specifically
states so.
Subclause (4) states that in a prosecution for an offence against
this Bill, the Industrial Division of the Magistrates' Court must
presume that the prosecution has been authorised, unless there is
evidence to the contrary.
Subclause (5) provides that a prosecution may only be conducted
by the person authorised to bring it, or an Australian lawyer
briefed by that person.
Clause 41 relates to judicial notice of signatures.
All courts must take judicial notice of the signature of a person
who was at the time the signature was made the Minister, the
Secretary, or an authorised officer.
Clause 42 imputes conduct of an individual to bodies corporate or other
employer.
Subclause (1) provides that the conduct engaged in or on behalf
of a body corporate by an agent, employee or officer of the body
corporate or other employer acting within their authority is
considered to be also engaged in by that body corporate or other
employer.
Subclause (2) provides that the term officer is defined in
section 9 of the Corporation Act 2001 of the Commonwealth.
Clause 43 relates to the criminal liability of officers of bodies corporate.
Subclause (1) provides that if a body corporate commits an
offence specified in subclause (2), then an officer of the body
corporate also commits that offence if--
• the officer authorised or permitted the commission of
that offence; or
• the officer, by act or omission, was knowingly
concerned in the commission of the offence.
20
Subclause (2) sets out the offences that apply to subclause (1).
These are--
• clause 9(2)--payment if employment ends before leave
is taken; and
• clause 10(1)--employee dies before leave is taken; and
• clause 20(1) and (2)--payment whilst on long service
leave; and
• clause 34(1)--payments in lieu forbidden; and
• clause 36(1), (2), (3,) and (4)--adverse action; and
• clause 37(1), (2), (3) and (5)--failure to produce
document or production of false or misleading
documents; and
• clause 50(1)--disclosure of unfair long service leave
entitlements.
Subclause (3) states that without limiting any other defence
available to an officer, the officer may rely on a defence that
would be available to the body corporate if it were charged with
the offence that the officer has been charged with. In doing so,
the officer bears the same burden of proof as the body corporate
in establishing the defence.
Subclause (4) states that an officer of a body corporate may
commit an offence against a provision specified in subclause (2)
regardless of whether the body corporate has been prosecuted for,
or found guilty of the offence.
Subclause (5) defines body corporate as having the meaning
given it in section 57A of the Corporations Act 2001 of the
Commonwealth. Officer is defined as a person who is an officer
as defined in section 9 of the Corporations Act 2001 of the
Commonwealth, or a person who is concerned in or takes part
in the management of a body corporate, regardless of their title.
Subclause (6) states that this clause does not affect the operation
of section 323 or section 324 of the Crimes Act 1958.
Clause 44 refers to offences committed by unincorporated associations.
A proceeding for an offence against this Bill by an
unincorporated association may be brought against any
or all members of the association's governing body.
21
Part 4--Preservation of superior long service leave entitlements
Clause 45 states that this Part applies regardless of anything to the contrary
in the Bill.
Clause 46 defines, for the purposes of this Part, the term award as having
the meaning it was given in the Workplace Relations Act 1996
of the Commonwealth, as in force prior to 27 March 2006
(being the date that the Commonwealth Workplace Relations
Amendment (WorkChoices) Act 2005 came into effect). It also
includes a term of an award that applied as a common rule in
Victoria under section 141, 142, or 493A of the Workplace
Relations Act 1996 of the Commonwealth, as in force prior to
27 March 2006. This applies to an employer bound by that
award immediately before 27 March 2006, or to an employer
who would have been bound by that award, had they been an
employer in the relevant industry at that time.
Clause 47 preserves certain long service leave entitlements.
Subclause (1) provides that if immediately before 27 March
2006, an award provided for a long service leave entitlement
that was more beneficial than the entitlement under Part 2 of
this Bill, the employee is entitled to that superior entitlement.
Subclause (2) states that subclause (1) applies even if the
employee was not employed immediately before 27 March 2006.
Part 5--Preservation of accrued long service leave entitlements
Clause 48 includes definitions for the purposes of this Part--
• award is given the same meaning as it has in Part 4 of
this Bill;
• protected accrued long service leave entitlement in
relation to an employee means an entitlement to long
service leave--
• that accrued under an award that has
subsequently been varied, set aside or ceased
to have effect, or is no longer applicable to
the employee, by operation of the Fair Work
Act 2009 of the Commonwealth; or
22
• that accrued by operation of an employment
agreement that has been terminated, or is no
longer applicable to that employee, pursuant
to the Workplace Relations Act 1996 of the
Commonwealth.
Clause 49 protects accrued entitlements for an employee who is, or was
at any time, entitled to a protected accrued long service leave
entitlement, regardless of the status of the award or agreement
under which that entitlement accrued.
Part 6--Disclosure requirements for workplace agreements
Clause 50 provides that an employer must disclose certain information to
an employee where the employer seeks to modify the employee's
long service leave arrangements.
Subclause (1) states that at least 7 days before entering into
an employment agreement that seeks to modify or remove
an employee's long service leave entitlements under this Bill,
the employer must give the employee written notice of the
proposed changes.
A penalty of 12 penalty units (in the case of a natural person)
or 60 penalty units (in the case of a body corporate) applies to
this provision.
Subclause (2) states that for the purposes of subclause (1), the
notice must state whether the proposed agreement seeks to vary
or remove any of the following entitlements--
• an entitlement to long service leave on completing
7 years' continuous service; or
• any entitlement arising from the operation of clause 47
(preservation of entitlements) or clause 49 (protection of
accrued entitlements).
Part 7--General
Clause 51 relates to long service leave records.
Subclause (1) allows the Secretary to approve the form in which
long service leave records are to be kept, as well as the details
that are to be included in that record.
23
Subclause (2) states that the Secretary must ensure that any such
specified details are published on the Department's Internet site,
as well as being published in the Government Gazette.
Clause 52 limits the jurisdiction of the Supreme Court.
It is the intention of this clause is to alter or vary section 85 of the
Constitution Act 1975 to the extent required to prevent the
bringing of a proceeding for offences against the Bill under
clause 25(1) of the Bill in the Supreme Court. Clause 25(1)
requires charges for offences to be heard in the Industrial
Division of the Magistrates' Court. Section 85 of the
Constitution Act 1975 sets out the powers and jurisdiction
of the Supreme Court of Victoria. The limitation on the
jurisdiction of the Supreme Court is to ensure that the Industrial
Division of the Magistrates' Court serves as the primary body
for determining matters under the long service leave legislation.
The right of any party to appeal to the Supreme Court on a
question of law from a final order of the Industrial Division of
the Magistrates' Court is enshrined at clause 25(3)(b) of the Bill.
Clause 53 allows for the making of regulations.
Subclause (1) allows the Governor in Council to make
regulations with respect to anything required or permitted by
the Bill, or that is necessary to be prescribed to give effect to
the Bill.
Subclause (2) provides that a regulation may create an offence
punishable by a penalty of not more than 20 penalty units.
Clause 54 allows for the making of transitional regulations.
Subclause (1) allows the Governor in Council to make
regulations consequent on the enactment of the Bill, which
contain provisions of a savings or transitional nature.
Subclause (2) provides that a provision mentioned in subclause
(1) may have retrospective effect to the day on which the Bill
comes into operation.
Subclause (3) provides that a regulation made under this
clause has effect despite anything to the contrary in any Act
or subordinate instrument, other than this Bill or the Charter
of Human Rights and Responsibilities Act 2006.
24
Subclause (4) provides that sections 6 and 7 of the Subordinate
Legislation Act 1994 does not apply.
Subclause (5) provides that this clause expires on the second
anniversary of the commencement of the Bill.
Part 8--Repeal of the Long Service Leave Act 1992
and savings and transitional provisions
Clause 55 sets out definitions for the purposes of this Part.
Subclause (1) provides that 1992 Act refers to the Long Service
Leave Act 1992, and 2017 Act means the Long Service Leave
Act 2017.
Subclause (2) states that a word or expression that is defined in
the 1992 Act, and is used in this Part in relation to the 1992 Act
will have the same meaning as is given to that word or expression
in the 1992 Act.
Clause 56 subclause (1) repeals the 1992 Act.
Subclause (2) provides that on and from the commencement of
the 2017 Act any reference to the 1992 Act in an Act, other than
the 2017 Act or a regulation made under that Act, subordinate
instrument or other document, is taken to be a reference to the
2017 Act, unless there is a contrary intention.
Subclause (3) states that nothing in this clause limits or affects
the operation of the Interpretation of Legislation Act 1984.
Clause 57 sets out transitional arrangements.
Subclause (1) states that despite anything in clause 13 of this
Bill, any interruption to an employee's employment caused by
an absence of work not referred to in sections 62(2) or 62(3),
or 62A(1) of the 1992 Act, is taken to interrupt an employee's
continuous employment for the purposes of clause 12, if the
absence started before the commencement of the 2017 Act.
The types of absences referred to in those provisions in the 1992
Act are any absence from work of not more than 48 weeks in any
year on account of illness or injury, an absence that the employer
and employee agreed would not count as part of the employee's
period of employment, unpaid parental leave, and a period of
absence between engagements of a casual or seasonal employee.
25
Subclause (2) states that if the 2017 Act commences during the
time an employee is absent from work, and that absence is a
type of absence that under the 1992 Act is not counted as a period
of the employee's continuous employment, but is taken to be a
period of employment that is to be counted as continuous service
under clause 13 of the 2017 Act, then only the part of the period
of absence that occurred before the 2017 Act commences is to
count under clause 13. For example, if the 2017 Act comes
into operation on 1 March 2018, and an employee commences
52 weeks unpaid parental leave on 1 January 2017, the first
8 weeks of the period of unpaid parental leave will not be
included when calculating the employee's period of continuous
employment (although continuity of service will not be broken).
The 44 weeks' leave after 1 March 2017 will be counted.
Part 9--Consequential amendments of other
Acts and repeal of this Part
Clauses 58 to 61 make consequential amendments to other Acts.
These consequential amendments simply change the reference
in the respective Acts from a reference to the 1992 Act to its
equivalent reference to the 2017 Act.
Clause 62 provides for the automatic repeal of Part 9 of the Bill on 1 June
2019. The repeal of this Part does not affect in any way the
continuing operation of the amendments made to other Acts by
this Part (see section 15(1) of the Interpretation of Legislation
Act 1984).
26