Construction Industry Portable Paid Long Service Leave Amendment Act 1989 (WA)

WESTERN AUSTRALIA

CONSTRUCTION INDUSTRY

PORTABLE PAID LONG SERVICE

LEAVE AMENDMENT ACT

No. 30 of 1989

AN ACT to amend the Construction Industry Portable Paid Long

Service Leave Act 1985.

[Assented to 12 December 1989]

The Parliament of Western Australia enacts as follows:

Short title

1. This Act may be cited as the Construction Industry Portable Paid

Long Service Leave Amendment Act 1989.

Commencement

2. The provisions of this Act shall come into operation on such day

as is, or such days as are respectively, fixed by proclamation.

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Principal Act

In this Act the Construction Industry Portable Paid Long Service Leave Act 1985* is referred to as the principal Act.

3.

[*Act No. 72 of 1985 as amended by Act No. 4 of 1986.]

Section 3 amended

4.     Section 3 of the principal Act is amended

(a) in subsection (1), in the definition of "construction industry"—

(i)  in paragraph (a) by deleting "and" at the end of subparagraph (xvi);

(ii)  in paragraph (a) by inserting "and" at the end of subparagraph (xvii);

(iii)   in paragraph (a) by inserting after subparagraph (xvii) the following-

" (xviii) fences, other than fences on farms; "; and

(iv)   by deleting paragraph (e) and substituting the following paragraph-

" (e) the maintenance of or repairs or minor

alterations to lifts or escalators; or ";

(b) in subsection (1), in the definition of "employer" by inserting after "industry" the following-

" but does not include a Minister, authority or council

prescribed under subsection (4) (c) "; and

(c) in subsection (4)-

(i)   by deleting the full stop at the end of paragraph (b) and substituting a semicolon; and

(ii)  by inserting after paragraph (b) the following paragraph

(c) a Minister in the Government, an authority, whether a body corporate or not, constituted by a written law or a council within the meaning of the Local Government Act 1960, not to be an employer, or not to be an employer in respect of prescribed employees of that Minister, authority or council, for the purposes of the definition of "employer" in subsection (1). ".

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Section 15 amended

5.     Section 15 of the principal Act is amended in subsection (3) by

deleting "-1978".

Section 21 amended

6.     Section 21 of the principal Act is amended

(a) by repealing subsection (1) and substituting the following subsection

(1) Notwithstanding any other Act or award but subject to this Act, a person registered as an employee under this Act is entitled to the following long service leave in respect of service in the construction industry

(a)	13 weeks after completing 15 years of service; and
(b)	8% weeks after completing 10 years of service subsequently to completing the period of service referred to in paragraph (a),

and is entitled to be paid ordinary pay for such leave in

accordance with this Act. ";

and

(b) in subsection (2)—

(i)   in paragraph (d) by deleting the full stop and substituting a semicolon; and

(ii)  by inserting after paragraph (d) the following paragraph-

" (e) a period of service in respect of which an employee has received a lump sum payment under section 22 (1) shall not be counted as service. ".

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Section 22 repealed and a section substituted

7. Section 22 of the principal Act is repealed and the following section is substituted-

"

Lump sum payments

22. (1) Subject to section 24A (1), an employee who for any reason terminates his employment in the construction industry, or whose employment in the construction industry is terminated for any reason other than serious misconduct by him, is entitled to a lump sum payment in respect of service in the construction industry as follows

(a)	where he has completed at least 10 years of service but less than 15 years of service, a sum which bears the same proportion to the money value of the entitlement referred to in section 21 (1) (a) as the period of service completed bears to 15 years; or
(b)	where he has completed at least 15 years of service-

(i)  where an accrued entitlement under section 21 (1) has not been taken, the money value of that entitlement; and

(ii)   for each year of service after the completion of 15 years of service which is not part of the period of an accrued entitlement under section 21 (1), one-fifteenth of the money value of the entitlement referred to in section 21 (1) (a).

(2) Where an employee dies after completing at least 10 years of service in the construction industry, the widow or widower of the employee, or such other person as the Board thinks fit, is entitled, in respect of such period of the employee's service as had not formed part of the period of an entitlement under section 21 (1) taken by him or been the subject of advance long service leave taken under section 24A (1), to a lump sum payment consisting of

(a) in respect of an accrued entitlement under section 21 (1), the money value of that entitlement; and

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(b) in respect of a period of service which was not part of the period of an accrued entitlement under section 21 (1), a sum which bears the same proportion to the money value of the entitlement referred to in section 21 (1) (a) as that period of service bears to 15 years. ".

Section 24 amended

8.     Section 24 of the principal Act is amended in subsection (3) by

deleting "of 13 weeks".

Section 24A inserted

9.    After section 24 of the principal Act the following section is

inserted

Proportional leave in advance

after 10 years service

24A. (1) An employee with at least 10 years of service in the construction industry may, with the consent of his employer, take advance long service leave for not longer than the period which bears the same proportion to the length of his service then completed as the period of 13 weeks bears to 15 years, and where leave is so taken, the employee is not entitled to further long service leave or a payment under section 22 (1) for the period of service in respect of which advance long service leave has been taken.

(2) Sections 24 (3), 27, 28 and 29 apply to and in relation to the taking of advance long service leave by an employee under subsection (1) in the same way as they apply to and in relation to the taking of long service leave by an employee under an entitlement conferred by section 21 (1).

Section 26 repealed

10.     Section 26 of the principal Act is repealed.

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Section 29A inserted

11. After section 29 of the principal Act the following section is inserted

Reciprocal arrangements

29A. (1) In this section

"construction industry" has the same meaning as in section 3

(1);

"corresponding law" means a law of another State or of a Territory which

(a)	provides for long service leave payments for persons employed in the construction industry; and
(b)	is prescribed as a corresponding law for the purposes of this section;

"corresponding public employer in this State" means

(a)	a Minister in the Government;
(b)	an authority, whether a body corporate or not, constituted by a written law; or
(c)	a council within the meaning of the Local Government Act 1960,

who or which is prescribed under section 3 (4) (c).

(2) The Minister may, on the recommendation of the Board, make a reciprocal arrangement with

(a) the Minister of State of another State or of a Territory responsible for the administration of a corresponding law;

Or

(b) a corresponding public employer in this State;

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being a reciprocal arrangement relating to

(c) long service leave entitlements for persons employed in

the construction industry transferring-

(i)   to or from this State from or to another State or a Territory; or

(ii)  to or from an employer from or to a corresponding public employer in this State;

(d) the making by the Board of contributions to an authority equivalent to the Board established by a corresponding law or to a corresponding public employer in this State and the receipt by the Board of contributions from that authority or that corresponding public employer in this State;

(e) the exchange of information concerning service credits

and entitlements to long service leave payments; and

(f) incidental or related matters.

(3) Where a reciprocal arrangement is made

(a)	the Board is liable to make and is entitled to receive contributions in accordance with the reciprocal arrangement and is in all other respects bound by the terms of the reciprocal arrangement; and
(b)	this Act shall be construed as applying with any modifications which are necessary to give effect to the terms of the reciprocal arrangement. ".

Section 49 amended

12. Section 49 of the principal Act is amended

(a) in subsection (1) by deleting the full stop and substituting the following

and is, in the absence of evidence to the contrary, conclusive

proof of the matters stated in the certificate. ";

(b) in subsection (2) by deleting the full stop and substituting the following-

" and is, in the absence of evidence to the contrary, conclusive

proof of the matter stated in the certificate. ";

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(c) in subsection (3) by deleting the full stop and substituting the following-

" and is, in the absence of evidence to the contrary, conclusive

proof of the matters stated in the certificate. "; and

(d) by inserting after subsection (3) the following subsection

<4 (4) In any proceedings against a person under this Act, a

certificate purporting to be signed by the chief executive officer certifying that a person was registered under this Act as an employer or employee on a specified date or during a specified period shall be admissible in evidence in those proceedings and is, in the absence of evidence to the contrary, conclusive proof of the matters stated in the certificate. ".

Transitional

13. (1) In this section

"Board", "day of service", "employee" and "employer" have the

same meaning as in the principal Act; and

"the appointed day" means the day fixed by the Minister by Order published in the Government Gazette as the appointed day for the purposes of this section.

(2) Notwithstanding anything in the principal Act, the provisions of section 30 (2), 31 (2) and 34 (1) of that Act do not apply until the appointed day to or in relation to a natural person, firm or body corporate who or which becomes an employer by reason of section 4 (a) of this Act.

(3) Notwithstanding anything in section 21 of the principal Act, a person who is employed as an employee on the appointed day who applies for registration as an employee at any time on or after the appointed day and is registered as an employee is entitled to have the days of continuous service with that employer preceding the date of his application included as days of service.

(4) Notwithstanding anything in section 34 of the principal Act, an employer shall pay to the Board in respect of any person referred to in subsection (3) whose service with the employer has been continuous for a period of at least 10 years ending on the appointed day such amount as is assessed by the Board as contributions in respect of the paid long service leave contributions in relation to that person.

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(5) An amount assessed by the Board under subsection (4) shall, if not paid within the time specified by the Board, constitute a debt to the Board and is recoverable by the Board in any court of competent jurisdiction.

Validation

14. Where a regulation is made under section 3 (4) (c) of the

principal Act, any act done or thing omitted to be done before the coming into operation of that regulation which constituted a contravention of the principal Act but which would have been lawful if done or omitted to be done after the coming into operation of the regulation, shall be deemed to have been lawfully done.