Construction Industry Portable Paid Long Service Leave Amendment Act 2025 (WA)
Western Australia
Western Australia
Western Australia
Construction Industry Portable Paid Long Service Leave Amendment Act 2025[
The Parliament of Western Australia enacts as follows:
This is the
This Act comes into operation as follows —
(a) Part 1 — on the day on which this Act receives the Royal Assent (
assent day );(b) Parts 5 and 7 — on a day fixed by proclamation;
(c) the rest of the Act — on the day after assent day.
This Act, other than Part 7, amends the
(1) In section 3(1) delete the definition of
day of service .(2) In section 3(1) insert in alphabetical order:
(3) After section 3(3a) insert:
(3B) An employee is
stood down in respect of a day if —(a) the employee is employed by an employer on the day; and
(b) the employee would usually work in that employment on the day; and
(c) 1 of the following applies in relation to that employment —
(i) the employee was given a jobkeeper enabling stand down direction authorised by the Fair Work Act 2009 (Commonwealth) repealed section 789GDC for the day;
(ii) the employee is stood down for the day under the
Fair Work Act 2009 (Commonwealth) section 524(1);(iii) the employee is stood down for the day under an industrial instrument;
(iv) the employee is stood down for the day in prescribed circumstances.
(3C) An employee is
on workers compensation in respect of a day if —(a) the employee is employed by an employer on the day; and
(b) the employee would usually work in that employment on the day; and
(c) the employee is entitled to receive income compensation under the
Workers Compensation and Injury Management Act 2023 Part 2 Division 3 for a period that includes the day.
5. Section 3B inserted
After section 3 insert:
(1) A
day of service is —(a) a day in respect of which an employee is entitled to receive ordinary pay, including a day on which the employee is —
(i) on long service leave under this Act; or
(ii) on annual leave in excess of 4 weeks in any period of 12 months; or
(iii) on paid sick leave;
or
(b) a day in respect of which an employee is stood down, if the employee is —
(i) not employed on a casual basis; or
(ii) employed on a casual basis and has worked in that employment on a regular and systematic basis during the period of 12 months ending on the day;
or
(c) a day in respect of which an employee is on workers compensation.
(2) If an employee is stood down for a period exceeding 1 day, the reference in subsection (1)(b)(ii) to the day is a reference to the first day of the period for which the employee is stood down.
In section 21(3) delete the definition of
Delete section 28(4B) and insert:
(4B) For the purposes of subsections (1) and (2), a person is not engaged or employed in employment for hire or reward in respect of a day if the person is —
(a) on workers compensation in respect of that day; and
(b) absent from their employment on that day.
8. Schedule Division 3 inserted
At the end of the Schedule insert:
In this Subdivision —
The
(1) In this clause —
(2) Regulations may prescribe anything required, necessary or convenient to be prescribed in relation to a transitional matter in connection with the enactment of, or any amendment made by, the amendment Act.
(3) Without limiting subclause (2), transitional regulations may provide for specified provisions of this Act or another written law —
(a) not to apply to, or in relation to, a specified matter or thing; or
(b) to apply with specified modifications to, or in relation to, a specified matter or thing.
(4) If transitional regulations provide that a specified state of affairs is taken to have existed, or not to have existed, on and after a day that is earlier than publication day but not earlier than the day on which the amendment Act Part 2 comes into operation, the transitional regulations have effect according to their terms.
(5) If transitional regulations contain a provision referred to in subclause (4), the provision does not operate so as —
(a) to affect in a manner prejudicial to a person (other than the State or an authority of the State) the rights of that person existing before publication day; or
(b) to impose liabilities on a person (other than the State or an authority of the State) in respect of an act done or omission made before publication day.
(1) In this Subdivision —
(2) An employee was
on workers compensation (1981 Act) in respect of a day if —(a) the employee was employed by an employer on the day; and
(b) the employee would usually work in that employment on the day; and
(c) the employee was entitled to receive weekly payments of compensation calculated and varied under the
Workers’ Compensation and Injury Management Act 1981 Schedule 1 for a period that includes the day.
(1) In this clause —
(2) This clause applies in relation to an employee who, during the pre‑commencement period, was stood down in respect of a day.
(3) For the purposes of the Board determining the employee’s entitlement to long service leave under this Act, the Board must apply this Act as if, on that day —
(a) the definition of
day of service was as set out in section 3B; and(b) the definition of
stood down in section 3(3B) applied accordingly.
(1) This clause applies in relation to an employee who, before commencement day —
(a) was on workers compensation in respect of a day; or
(b) was on workers compensation (1981 Act) in respect of a day.
(2) For the purposes of the Board determining the employee’s entitlement to long service leave under this Act, the Board must apply this Act as if, on that day —
(a) the definition of
day of service was as set out in section 3B; and(b) the definition of
on workers compensation in section 3(3C) applied accordingly; and(c) the reference in section 3(3C)(c) to income compensation under the
Workers Compensation and Injury Management Act 2023 Part 2 Division 3 included a reference to weekly payments of compensation calculated and varied under theWorkers’ Compensation and Injury Management Act 1981 Schedule 1.
(1) This clause applies in relation to an employee referred to in clause 8(2) or 9(1).
(2) Each day in respect of which the employee was stood down, on workers compensation or on workers compensation (1981 Act) is taken to be a day of service by the employee for the purposes of section 23(1)(a) and (b).
(3) Subclause (4) applies if —
(a) before commencement day, the Board caused the employee’s name to be removed from the employees register under section 23(1); and
(b) the employee would have been entitled to remain on the employees register had the provision made by subclause (2) applied at the time of the removal.
(4) The Board may cause the employee to be re‑registered on the employees register.
(5) If the employee is re‑registered, for the purposes of the Board determining the employee’s entitlement to long service leave under this Act, the Board must apply this Act as if the Board had not caused the employee’s name to be removed.
(1) This clause applies if —
(a) before commencement day, the Board made a decision (the
original decision ) to pay, not pay, or pay a particular amount of, a lump sum payment under section 22; and(b) as a consequence of this Subdivision, the Board considers a different decision should be made.
(2) The Board may, on its own initiative or on the application of any person, set aside the original decision and make the different decision.
In section 3(1) in the definition of
chairperson;
In section 6(1)(a) delete “chairman;” and insert:
chairperson;
In section 7(3)(a) and (b) and (4) delete “chairman” and insert:
chairperson
(1) After section 9(1) insert:
(1A) If a member so requests, the Board may pay a fee or allowance to which the member is entitled to the principal employer of the member.
(1B) Payment of a fee or allowance at a member’s request under subsection (1A) does not affect the member’s duty to act as a member of the Board under this Act.
(2) In section 9(2) delete “him” (each occurrence) and insert:
the member
(1) In section 10(1):
(a) delete “chairman” and insert:
chairperson
(b) delete “chairman.” and insert:
chairperson.
(2) Delete section 10(2) and (3) and insert:
(2) The chairperson must preside at any meeting of the Board at which the chairperson is present.
(3) If the chairperson is not present at a meeting of the Board the following person must preside at the meeting —
(a) if a person has been appointed under section 7(3) to act in the place of the chairperson — that person;
(b) otherwise — the member elected by the members present to preside at the meeting.
(3) After section 10(9) insert:
(10) The presence of a member at a meeting of the Board need not be by attendance in person but may be by that member and each other member at the meeting being simultaneously in contact by telephone or other means of instantaneous communication.
After section 10 insert:
A decision in writing signed or otherwise assented to in writing by each member has the same effect as if it had been made at a meeting of the Board.
(1) In section 22(1):
(a) delete “his” and insert:
the employee’s
(b) delete “him,” and insert:
the employee,
(c) in paragraphs (a) and (b) delete “he” and insert:
the employee
(d) in paragraph (b)(ii) delete “years.” and insert:
years;
(e) after paragraph (b) insert:
or
(c) where the employee has completed at least 55 days of service but less than 7 years of service and is totally and permanently incapacitated for work in the construction industry, 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 10 years; or
(d) where the employee has completed at least 55 days of service but less than 7 years of service and has been diagnosed with an illness that is likely to result in the death of the employee within a period of 12 months of the date of application for payment, 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 10 years.
(2) After section 22(1) insert:
(1A) A payment must not be made under subsection (1)(c) or (d) unless the Board has been given evidence by a medical practitioner of the employee’s incapacitation or diagnosis.
(1B) In subsection (1A) —
(3) In section 22(2) delete “him” and insert:
the employee
(4) After section 22(2) insert:
(2A) Subsection (2B) applies if an employee dies after completing at least 55 days of service but less than 7 years of service in the construction industry.
(2B) Upon application by a relevant party for the deceased employee, a lump 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 10 years must be paid to a relevant party for the deceased employee, as the Board thinks fit.
(2C) In subsection (2B) —
(a) any person who was the spouse or de facto partner of the employee immediately before the death of the employee and who, in the opinion of the Board, was financially dependent on that employee at that time; or
(b) the estate of the employee.
Delete section 3A(1).
(1) In section 3(1) insert in alphabetical order:
(a) means any kind of vessel used or capable of being used in navigation by water, however propelled or moved; and
(b) includes the following —
(i) a barge, lighter or other floating vessel;
(ii) an air‑cushion vehicle, or other similar vessel, used wholly or primarily in navigation by water;
(2) In section 3(1) in the definition of
construction industry :(a) after paragraph (a)(xv) insert:
(xva) vessels other than self‑propelled vessels; and
(xvb) temporary or permanent structures, fixtures or works that are used for construction and non‑navigation purposes and that are on self‑propelled vessels; and
(b) delete paragraph (a)(xvi) and insert:
(xvi) structures, fixtures or works for use on or for the use of any buildings, works or vessels of a kind referred to in subparagraphs (i) to (xva); and
(c) after paragraph (a) insert:
(aa) of carrying out of work referred to in paragraph (a)(i) to (xv) while on a vessel;
(ab) of carrying out of work referred to in paragraph (a)(xva) and (xvb) while on the vessel or from another vessel;
(d) in paragraph (b) delete “of works” and insert:
of work
(e) delete paragraph (d) and insert:
(d) the carrying out of work involving the construction, erection, installation, reconstruction, re‑erection, renovation, alteration, demolition or maintenance of or repairs to a self‑propelled vessel, other than to structures, fixtures or works of a kind referred to in paragraph (a)(xvb) on the vessel; or
(da) the carrying out of work for a self‑propelled vessel to be operated; or
(3) After section 3(3C) insert:
(3D) For the purposes of the definition of
construction industry in subsection (1), a place on water where a vessel is located is taken to be a site.(3E) A reference in this Act to a vessel is a reference to a vessel on water in the State or in an offshore area.
(3F) A reference in this Act to an employee does not include a reference to a person on a vessel if the Board is satisfied that, apart from the fact that the person is on the vessel, the person has no substantial connection with the State.
At the end of the Schedule insert:
In this Subdivision —
(1) In this clause —
(2) A person (a
vessel‑related person ) is taken to have been an employee on a day (arelevant day ) before commencement day if, but for the operation of paragraph (d) of the former definition ofconstruction industry , the person would have been considered an employee on the relevant day.(3) The references in this Subdivision to day of service and employer in respect of the vessel‑related person are to be read accordingly.
(4) This clause applies subject to clauses 14 and 15.
(1) This clause applies if, before commencement day —
(a) a day of service was undertaken by a vessel‑related person on a relevant day; and
(b) the person’s employer for the relevant day —
(i) made a payment of an amount to the Board in respect of the person for the day; and
(ii) did not receive a refund of the amount.
(2) The relevant day is taken to be a day of service as an employee for the purposes of the Board determining the vessel‑related person’s entitlement to long service leave under this Act.
Note for this clause:
See Subdivision 2 for transitional provisions about days of service for employees stood down and for employees on workers compensation.
(1) Subclause (3) applies to a relevant day before commencement day on which a day of service was undertaken by a vessel‑related person if, before commencement day —
(a) the person’s employer for the day —
(i) paid an amount to the Board in respect of the vessel‑related person for the day; and
(ii) received a refund of the amount;
and
(b) the Board removed from its records the day as a day of service for the person.
(2) Subclause (3) also applies to a relevant day referred to in clause 14 on which a day of service was undertaken by a vessel‑related person.
(3) The relevant day is taken to be a day of service by the employee for the purposes of section 23(1)(a) and (b).
(4) Subclause (5) applies if —
(a) before commencement day, the Board caused the vessel‑related person’s name to be removed from the employees register under section 23(1); and
(b) the person would have been entitled to remain on the employees register had the provision made by subclause (3) applied at the time of the removal.
(5) The Board may cause the vessel‑related person to be re‑registered on the employees register.
(6) If the vessel‑related person is re‑registered, for the purposes of the Board determining the person’s entitlement to long service leave under this Act, the Board must apply this Act as if the Board had not caused the person’s name to be removed.
(1) This clause applies if, before commencement day —
(a) an employer made a payment of an amount to the Board in respect of a vessel‑related person employed by the employer; and
(b) the payment was not refunded.
(2) The payment is taken to have been made under section 34(1).
(1) This clause applies if —
(a) before commencement day, the Board made a decision (the
original decision ) to pay, not pay, or pay a particular amount of, a lump sum payment under section 22; and(b) as a consequence of this Subdivision, the Board considers a different decision should be made.
(2) The Board may, on its own initiative or on the application of any person, set aside the original decision and make the different decision.
In section 3(1) delete “Act unless the contrary intention appears —” and insert:
Act —
In section 24A(2) delete “27,”.
Note: The heading to amended section 24A is to read:
This Part amends the
(1) In section 3(1) delete the definition of
building and construction industry .(2) In section 3(1) insert in alphabetical order:
(3) In section 3(1) in the definition of
construction work delete paragraph (a) and insert:(a) that is included in the definition of
building and construction industry ; or
After section 3 insert:
(1) Building and construction industry means the industry —(a) of carrying out on a site the construction, erection, installation, reconstruction, re‑erection, renovation, alteration, demolition or maintenance of or repairs to any of the following —
(i) buildings;
(ii) swimming pools and spa pools;
(iii) roads, railways, airfields or other works for the passage of persons, animals or vehicles;
(iv) breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purposes of navigation;
(v) works for the storage or supply of water or for the irrigation of land;
(vi) works for the conveyance, treatment or disposal of sewage or of the effluent from any premises;
(vii) works for the extraction, refining, processing or treatment of materials or for the production or extraction of products and by‑products from materials;
(viii) bridges, viaducts, aqueducts or tunnels;
(ix) chimney stacks, cooling towers, drilling rigs, gas‑holders or silos;
(x) pipelines;
(xi) navigational lights, beacons or markers;
(xii) works for the drainage of land;
(xiii) works for the storage of liquids (other than water) or gases;
(xiv) works for the generation, supply or transmission of electric power;
(xv) works for the transmission of wireless or telegraphic communications;
(xvi) pile driving works;
(xvii) structures, fixtures or works for use on or for the use of any buildings or works of a kind referred to in subparagraphs (i) to (xvi);
(xviii) works for the preparation of sites for any buildings or works of a kind referred to in subparagraphs (i) to (xvii);
(xix) fences, other than fences on farms;
(b) of carrying out of works on a site of the construction, erection, installation, reconstruction, re‑erection, renovation, alteration or demolition of any buildings or works of a kind referred to in paragraph (a) for the fabrication, erection or installation of plant, plant facilities or equipment for those buildings or works;
(c) of carrying out of work performed by employees engaged in the work referred to in paragraph (a) or (b) and that is normally carried out on site but which is not necessarily carried out on site.
(2) However,
building and construction industry does not include the following —(a) the carrying out of any work on ships;
(b) the maintenance of or repairs or minor alterations to lifts or escalators;
(c) the carrying out of maintenance or repairs of a routine or minor nature by employees for an employer, or another person under an arrangement with a labour hire agency, who is not substantially engaged in the industry described in subsection (1).
Note for this section:
This section is based on the definition of
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