Building and Construction Industry Long Service Payments Amendment Act 2010 (NSW)

An Act to amend the Building and Construction Industry Long Service Payments Act 1986 to make further provision for long service payments to workers engaged in the building and construction industry; and for other purposes.

1Name of Act

This Act is the Building and Construction Industry Long Service Payments Amendment Act 2010.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Repeal of Building and Construction Industry Long Service Payments Amendment Act 1998 No 33

The Building and Construction Industry Long Service Payments Amendment Act 1998 is repealed.

Schedule 1Amendment of Building and Construction Industry Long Service Payments Act 1986 No 19[1]Section 3 Definitions

Omit the definition of Commonwealth industrial instrument from section 3 (1).

Insert instead:

Commonwealth industrial instrument means an award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) an Act of the Commonwealth, being an award, workplace agreement or other agreement prescribed (or of a class prescribed) by the regulations for the purposes of this definition.

[2]Section 8 Constitution of Committee

Omit “Employers First” from section 8 (2) (c).

Insert instead “the Australian Federation of Employers and Industries”.

[3]Section 15 Corporation to keep register of workers

Omit “whose registration is approved” from section 15 (1) (a).

Insert instead “who are registered”.

[4]Section 16 Applications for registration

Omit section 16 (2).

[5]Sections 16A and 17

Omit section 17. Insert instead:

16AEmployer to notify Corporation of employment of workers

An employer who employs a worker under a contract of employment must notify the Corporation of that employment within 7 days after the worker commences to perform building and construction work in New South Wales under that contract.

Maximum penalty: 20 penalty units.

17Registration(1)

The Corporation is to register every person who the Corporation is satisfied is a worker.

(2)

The Corporation may register a person as a worker in response to an application by the person for registration or on its own initiative.

[6]Section 18

Omit the section. Insert instead:

18Date of registration(1)

The date on which a person becomes a registered worker is:

• (a)

  if the person applied to be registered as a worker—the date on which application for the person’s registration was lodged with the Corporation, or

• (b)

  if the Corporation registered the person on its own initiative—the date of that registration.

(2)

Despite subsection (1), the Corporation may, on its own initiative or at the request of a person who is registered as a worker, fix, in respect of any person or class of persons, a date of registration that is earlier than the date referred to in that subsection.

(3)

However, if a person who is registered as a worker has requested an earlier date in accordance with subsection (2), the Corporation must not fix a date that is earlier than 2 years before the request was made, unless the Corporation is satisfied that special circumstances warrant its doing so.

(4)

On the fixing of a date in accordance with subsection (2):

• (a)

  the person or class of persons for whom the date is fixed are taken for all purposes to have been registered on and from that date, and

• (b)

  service credits to which the person or those persons are entitled under this Act may be credited to the person or those persons in respect of any subsequent dates.

[7]Section 19 Cancellation or suspension of registration

Omit the following from section 19 (2A):

• •

  worker,

and on such cancellation the name of the worker may be removed from the register of workers.

Insert instead “worker.”.

[8]Section 19 (3)–(5)

Omit the subsections. Insert instead:

(3)

The cancellation of the registration of a registered worker under subsection (1A) or (2) takes effect:

• (a)

  on the expiration of the period of 42 days after the Corporation notifies the registered worker of the cancellation, or

• (b)

  if an appeal under Part 6 is lodged against the cancellation within that period—on the date the appeal is withdrawn or the cancellation is confirmed.

(4)

On the cancellation of the registration of a worker taking effect:

• (a)

  the person ceases to be a registered worker, and

• (b)

  the person or the personal representative of the person is not entitled to apply for or be paid any long service payment in respect of any days’ service then credited to the person in the register of workers.

(5)

A person whose registration has been cancelled in accordance with this section may (if eligible) subsequently be registered as a worker.

[9]Section 19 (8) and (9)

Insert after section 19 (7):

(8)

While the registration of a worker is suspended:

• (a)

  the worker is not to be credited in the register of workers with any service under this Act (being service during the period of suspension), and

• (b)

  the Corporation is not required to serve any notice under section 25 (1) on the worker, and

• (c)

  subject to section 30:

  • (i)

    the worker is entitled to apply for and be paid any long service payment in respect of any days’ service then credited to the worker in the register of workers, and

  • (ii)

    if the worker has died (whether before or after the worker’s registration was suspended)—the personal representative of the worker is entitled to apply for and be paid any long service payment in respect of any days’ service then credited to the worker in the register of workers, but only if the application is made within 2 years after the date of suspension or the date of the worker’s death (whichever is the later).

(9)

If a suspended registration is restored under subsection (6) (a), any days’ service under this Act that are credited to the worker as at the date of the suspension are to be restored.

[10]Section 20 Contract of employment workers—certificates of service to be supplied by employers

Omit “and the worker” from section 20 (1) (a)–(c), wherever occurring.

[11]Section 22 Service credits for building and construction work

Insert after section 22 (3):

(3A)

For the purposes of subsection (3), when calculating the number of days’ service equivalent to the number of full days of employment in building and construction work, the Corporation is to:

• (a)

  count any day on which the registered worker performed building and construction work for more than half the worker’s ordinary work day as a full day of employment in building and construction work, and

• (b)

  disregard any day on which the registered worker performed work (other than building and construction work) for more than half the worker’s ordinary work day.

[12]Section 24 Limitations on and adjustments of service credits

Omit “A registered worker shall not be credited in the register of workers with more than 220 days’ service in the building and construction industry in respect of any financial year.” from section 24 (1).

[13]Section 24 (2)

Omit “year ending 30 June”. Insert instead “financial year”.

[14]Section 25 Notice to registered workers of service credits

Insert after section 25 (6):

(7)

Despite subsection (1), the Corporation is not required to serve a notice on a person:

• (a)

  whose registration has been cancelled (whether before or after the 30 June to which the notice relates), or

• (b)

  whose registration, in the opinion of the Corporation, is likely to be cancelled before the following 30 June.

(8)

However, if the Corporation has, by reason of subsection (7) (b), not served a notice on a person and by that following 30 June the person’s registration has not been cancelled, the Corporation must, as soon as possible, ensure that the relevant notice is served on the person.

[15]Section 29 Amount of long service payment

Insert after section 29 (4):

(5)

A reference in subsection (3) in the matter relating to P to the hours in which ordinary pay is payable is a reference to a maximum of 38 hours per week or such other period as is prescribed by the regulations.

[16]Section 32 Payments to employers

Insert after section 32 (2):

(2A)

A reference in subsection (1) in the matter relating to P to the hours in which ordinary pay is payable is a reference to a maximum of 38 hours per week or such other period as is prescribed by the regulations.

[17]Section 32 (3A)

Insert after section 32 (3):

(3A)

Despite subsection (3), for the purposes of the formula in subsection (1), S is not to include the number of any days’ service with which the worker was credited in the register of workers that was notified to the Corporation in a certificate under section 20 that was furnished more than 2 years after the time required by that section. This subsection does not have effect until 1 July 2011.

[18]Section 32 (4)

Omit the subsection. Insert instead:

(4)

Despite section 19, an employer is entitled to be paid, in respect of a registered worker whose registration has been cancelled under section 19, any amount that the employer would have been entitled to be paid under this section if that registration had not been so cancelled.

[19]Section 32B

Insert after section 32A:

32BDeemed minimum and maximum rates of pay(1)

Despite sections 29 and 32, the regulations may make provision for the determination of minimum and maximum amounts for P for the purposes of the formulae in those sections.

(2)

The Minister is to consult with the Committee before recommending the making of a regulation under this section.

(3)

The Committee is to advise and make recommendations to the Minister on the operation of, and any amendment to or repeal of, any regulation made under this section.

(4)

If an amount of a long service payment to a worker under section 29 or a payment to an employer under section 32 is, because of the operation of a regulation made under this section, less than the amount it would have been in the absence of the regulation, the Corporation is to notify the worker or employer in writing of that fact and give an explanation of the operation of the regulation.

[20]Section 38A

Insert after section 38:

38ACrown contractors to give evidence of levy payment to Crown(1)

If a person or body representing the Crown (a Crown instrumentality) has entered into a contract with a person who is liable under section 38 to pay a long service levy in respect of the erection of a building or part of the work of erecting a building, it is the duty of the Crown instrumentality to withhold any instruction to, or permission, approval or authorisation for, the person to commence work under the contract, unless the person has produced to the Crown instrumentality evidence that the long service levy due in respect of the work concerned has been paid by the person (such as a receipt from the Corporation).

(2)

It is the duty of the Crown instrumentality to keep a copy of any such evidence for at least 6 years after it was produced.

[21]Section 42 Refunds of long service levies

Omit “3 months” from section 42 (7).

Insert instead “12 months (or such other period as may be prescribed by the regulations)”.

[22]Section 42 (8) and (9)

Insert after section 42 (7):

(8)

Despite any other provision of this section, the Corporation may pay a refund to a person other than the person who paid the long service levy if, in the Corporation’s opinion, it is in the interests of justice to do so.

(9)

A payment of a refund under subsection (8) satisfies any liability of the Corporation to pay a refund to the person who paid the long service levy concerned.

[23]Section 49 Appeal against refusal or cancellation of registration

Omit section 49 (1) (a). Insert instead:

(a)

to refuse an application for registration as a worker, or

[24]Section 49 (3)

Omit “approve the application by the person to become a registered worker”.

Insert instead “register the person as a worker”.

[25]Section 50A

Insert after section 50:

50AAppeal against limitation of long service payment by operation of deemed minimum and maximum rates of pay(1)

A person who has received a notification under section 32B and is dissatisfied with the calculation of the long service payment may appeal to the Committee.

(2)

The Committee, in determining the appeal, may confirm the calculation of the long service payment or set it aside and make a new calculation in substitution for that calculation.

[26]Section 54A

Insert after section 54:

54APersonal representative of deceased person may appeal on person’s behalf(1)

A reference in sections 49, 50 and 50A to a person includes, where the person has died, the person’s personal representative acting on behalf of the person.

(2)

In this section, personal representative, in relation to a person who has died, means:

• (a)

  in the case of a person who died wholly or partially intestate—any person who appears to the Committee to be entitled to obtain a grant of letters of administration of the estate of the person, and

• (b)

  in the case of a person who died testate—any person who appears to the Committee to be entitled to receive the relevant payment under the will of the person.

[27]Schedule 1 Provisions relating to members and procedure of Committee

Omit “Employers First” from clause 7 (2) (b).

Insert instead “the Australian Federation of Employers and Industries”.

[28]Schedule 3 Savings, transitional and other provisions

Insert at the end of clause 16 (1):

Building and Construction Industry Long Service Payments Amendment Act 2010

[29]Schedule 3, Part 4

Insert after Part 3:

Part 4Provisions consequent on enactment of Building and Construction Industry Long Service Payments Amendment Act 201029Definition

In this Part, amending Act means the Building and Construction Industry Long Service Payments Amendment Act 2010.

30Definition of “Commonwealth industrial instrument”: section 3 (1)(1)

The substitution of the definition of Commonwealth industrial instrument in section 3 (1) of this Act made by the amending Act is taken to have effect on and from 27 March 2006.

(2)

A regulation made for the purposes of that definition may provide that it is taken to have effect on and from a date earlier than the date of the making of the regulation (but not earlier than 27 March 2006).

31Suspension of registration: section 19 (8) and (9)(1)

Section 19 (8), as inserted by the amending Act:

• (a)

  extends to a suspension of a registration that took effect before the commencement of that subsection that is still in effect, and

• (b)

  does not apply to a period of suspension that ended before the commencement of that subsection.

(2)

Section 19 (9), as inserted by the amending Act, does not apply to a restoration of a suspended registration that took effect before the commencement of that subsection.

32Service credits for part-time work and working partially on building and construction work and partially on other work: section 22 (3A)

Section 22 (3A), as inserted by the amending Act, extends to the performance of work before the commencement of that subsection.

33Deemed minimum and maximum rates of pay: sections 29 (5), 32 (2A) and 32B

Sections 29 (5), 32 (2A) and 32B, as inserted by the amending Act, apply to calculations of payments after the commencement of those provisions in relation to days’ service credited to the worker concerned before and after that commencement.

34Refunds of long service levies in interests of justice: section 42 (8) and (9)

Section 42 (8) and (9), as inserted by the amending Act, extend to the refund, after the commencement of those subsections, of a long service levy that was paid to the Corporation before that commencement.