Long Service Leave (Building and Construction Industry) (Amendment) Act 1987 (ACT)
AUSTRALIAN CAPITAL TERRITORY
Long Service Leave (Building and Construction Industry) (Amendment) Ordinance 1987
No. 16 of 1987
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Ordinance under the Seat of Government (Administration) Act 1910.
Dated 13 April 1987.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
G. SCHOLES
Minister of State for Territories
An Ordinance to amend the Long Service Leave (Building and Construction Industry) Ordinance 1981
Short title
1. This Ordinance may be cited as the Long Service Leave (Building and Construction Industry) (Amendment) Ordinance 1987.1
Commencement
2. This Ordinance shall come into operation on such date as is fixed by the Minister of State for Territories by notice in the Gazette.
Principal Ordinance
3. In this Ordinance, “Principal Ordinance” means the Long Service Leave (Building and Construction Industry) Ordinance 1981.2
Interpretation
4. Section 3 of the Principal Ordinance is amended:
(a)by omitting from subsection (1) the definition of “approved law”;
(b)by omitting from subsection (1) the definition of “building and construction industry” and substituting the following definition:
“ ‘building and construction industry’ means:
(a)in relation to industry in the Territory—the industry of carrying out the construction, reconstruction, renovation, alteration, demolition or maintenance of:
(i)buildings;
(ii)fences;
(iii)swimming pools;
(iv)roadworks, railways, airfields or other works for the carriage of persons, animals or vehicles;
(v)breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purpose of navigation;
(vi)works for the storage or supply of water or for the irrigation of land;
(vii)works for the conveyance, treatment or disposal of sewage or of the effluent from any premises;
(viii)bridges, viaducts, aqueducts or tunnels;
(ix)pipelines;
(x)chimney stacks, cooling towers, drilling rigs, gas holders or silos;
(xi)structures, fixtures or works for use in any building or works referred to in subparagraphs (i) to (x) inclusive;
(xii)navigational lights, beacons or markers;
(xiii)works for the drainage of land;
(xiv)works for the storage of liquids, other than water, or of gases;
(xv)works for the transmission of electric power; and
(xvi)works for the transmission of wireless or telegraphic communications;
and includes the process of pile driving and the preparation of the site for any building or other works referred to in paragraphs (i) to (xvi) inclusive; and
(b)in relation to industry carried out in a reciprocating State or Territory—the building and construction industry within the meaning of the corresponding law of that State or Territory;”;
(c)by omitting from subsection (1) definition of “continuous service”;
(d)by inserting after the definition of “contractor” the following definition:
“ ‘corresponding law’ means a law of a State or another Territory specified in a notice under section 62;”;
(e)by inserting in subsection (1) after the definition of “prescribed retiring age” the following definitions:
“ ‘reciprocal agreement or reciprocal arrangement’ means a reciprocal agreement or reciprocal arrangement made pursuant to section 64;
“ ‘reciprocal authority’ means the person or body (however described) appointed or established under the corresponding law of a reciprocating State or Territory to administer the scheme of long service benefits established by that law;
“ ‘reciprocating State or Territory’ means a State or another Territory with a Minister of State of which a reciprocal agreement or reciprocal arrangement has been made;
“ ‘recognised service’ means:
(a)a period of service with which a registered employee or a registered contractor has been credited in the Employees and Contractors Register; or
(b)a period comprising:
(i)a period of service referred to in paragraph (a); and
(ii)a period of service with which the registered employee or registered contractor has been credited pursuant to the corresponding law of a reciprocating State or Territory;”;
(f)by omitting from subsection (1) the definitions of “registered contractor” and “registered employee” and substituting the following definition:
“ ‘registered’ means registered under this Ordinance;”;
(g)by inserting in subsection (1) after the definitions of “salary or wages” the following definition:
“ ‘service’ means service in the building and construction industry;”; and
(h)by omitting subsections (3) and (4).
Functions of the Board
5. Section 6 of the Principal Ordinance is amended by omitting from paragraph (c) “for approval by the Minister” and substituting “to be declared as corresponding laws”.
Powers of the Board
6. Section 7 of the Principal Ordinance is amended:
(a)by omitting from paragraph (d) “and”; and
(b)by adding at the end the following word and paragraph:
“; and(f) to given effect to the terms of a reciprocal agreement or a reciprocal arrangement.”.
Moneys of the Board
7. Section 20 of the Principal Ordinance is amended by omitting from paragraph (d) “a reciprocal arrangement made under section 64” and substituting “a reciprocal agreement or reciprocal arrangement”.
Refunds
8. Section 25 is amended by omitting “so”.
Application for registration by employee or contractor
9. Section 32 of the Principal Ordinance is amended by omitting from subparagraph (2) (b) (v) “an approved law of a State or another Territory” and substituting “a corresponding law”.
Repeal
10. Section 33 of the Principal Ordinance is repealed.
Extension of time
11. Section 35 of the Principal Ordinance is amended by omitting “or 33” and “or paragraph 33 (2) (c), as the case may be,”.
Registration
12. Section 36 of the Principal Ordinance is amended:
(a)by adding at the end of paragraph (1) (a) “or”; and
(b)by omitting paragraph (1) (b).
Periodic notices and payments by employers
13. Section 37 of the Principal Ordinance is amended by omitting from paragraph (4) (b) all the words after “to” and substituting “a reciprocal authority,”.
Particulars in the Employees and Contractors Register
14. Section 40 of the Principal Ordinance is amended:
(a)by omitting from paragraph (b) “days continuous” and substituting “days’ ”;
(b)by omitting paragraph (c) and substituting the following paragraph:
“(c)the ordinary remuneration of the employee or contractor in respect of the building and construction work, or the work in the Territory in the building and construction industry, respectively performed by the employee or by the contractor;”.
Service credits
15. Section 42 of the Principal Ordinance is amended:
(a)by omitting subsections (1) and (2) and substituting the following subsections:
“(1) A registered employee or registered contractor shall be credited in the Employees and contractors Register with one day’s service for each working day, or part of a working day, on which the employee or contractor:
(a)performs work, being:
(i)in the case of a registered employee—building and construction work; or
(ii)in the case of a registered contractor—work in the Territory in the building and construction industry; or
(b)is absent from the work referred to in paragraph (a) (i) or (ii) respectively:
(i)on annual leave during any period exceeding 4 weeks in any year, being, in the case of an employee, a period in respect of which the employee is, or is entitled to be, paid ordinary remuneration by his or her employer;
(ii)on long service leave;
(iii)attending on a court in accordance with a summons to serve as a juror in proceedings before the court; or
(iv)attending on a court in accordance with a subpoena to give evidence in proceedings before the court.”.
“(2) A registered employee shall be credited in the Employees and Contractors Register with one day’s service:
(a)for each working day on which the employee is absent from employment in building and construction work on any paid leave granted by his or her employer, other than annual leave or an absence during a period referred to in paragraph (c);
(b)where the employee is absent from employment in building and construction work on account of incapacity arising out of an injury in respect of which the employee is entitled to compensation under the Workmen’s Compensation Ordinance 1951—for each working day during the period, being a period of not more than 110 days in any one year, in which the employee is absent;
(c)where the employee is absent from employment in building and construction work and a registered medical practitioner certifies that in his or her opinion the employee is unable to work on account of an illness or injury—for each working day during the period, being a period of not less than 10 days and not more than 110 days in any one year, in which the employee is absent and in respect of which the employee is, or is entitled to be, paid ordinary remuneration by his or her employer; and
(d)for each working day during a period in which the employment of the employee in building and construction work has been interrupted or terminated by his or her employer with the intention to avoid granting long service leave to the employee.”;
(b)by omitting from paragraph (3) (b) “paragraph 42 (1) (b) and substituting “subparagraph (1) (b) (i)”;
(c)by inserting after subsection (3) the following subsection:
“(3A) A registered employee shall not be credited under paragraph (2) (d) with more than 4 years’ service in respect of any one period referred to in that paragraph.”; and
(d)by omitting subsections (5) and (6) and substituting the following subsection:
“(5) Where:
(a)a registered employee or registered contractor is credited with less than 10 years of recognised service;
(b)the employee or contractor has ceased work in the building and construction industry, for a reason other than total incapacity, with the intention of leaving the industry permanently; and
(c)payment in respect of the period of recognised service has been made to the employee or the contractor pursuant to this Ordinance or to a corresponding law;
the employee or contractor shall not be credited in the Employees and Contractors Register with any period of service during the period of 12 months beginning on the date on which the application for that payment was made.”.
Bonus credits for employees and contractors
16. Section 43 of the Principal Ordinance is amended:
(a)by omitting from subsection (1) “or 33”;
(b)by omitting from subsection (1) “days continuous service in the building and construction industry” and substituting “days’ service in the Territory”;
(c)by omitting from subsection (2) “continuous service in the building and construction industry” and substituting “service in the Territory”;
(d)by omitting from paragraph (3) (a) “continuous service in the building and construction industry” and substituting “service in the Territory”; and
(e)by omitting from paragraph (4) (a) “continuous service in the building and construction industry” and substituting “service in the Territory”.
Bonus credits for apprentices
17. Section 44 of the Principal Ordinance is amended:
(a)by omitting subsection (1) and substituting the following subsection:
“(1) Where a person who is an apprentice serving his or her period of apprenticeship in the Territory:
(a)applied for registration within 3 months after 1 October 1981; and
(b)having been registered, completes the period of apprenticeship, or ceases to work in the building and construction industry because of total incapacity or death;
the person shall, on completing that period or ceasing to work, as the case may be, be credited in the Employees and Contractors Register with 440 days’ service.”;
(b)by omitting from subsection (2) “continuous service in the building and construction industry” and substituting “service in the Territory”;
(c)by omitting from subsection (3) “continuous service in the building and construction industry” and substituting “service in the Territory”; and
(d)by omitting from paragraph (4) (a) “continuous service in the building and construction industry” and substituting “service in the Territory”.
Removal of names from Employees and Contractors Register
18. Section 45 of the Principal Ordinance is amended:
(a)by omitting from subsection (1) “continuous”;
(b)by inserting in subsection (1) “, or in a register (however described) kept pursuant to a corresponding law,” after “Register” (first occurring);
(c)by omitting from paragraph (2) (b) “, or his legal representative,”; and
(d)by inserting after subsection (2) the following subsections:
“(2A) If:
(a)the name of a registered employee or registered contractor has been removed from the Employees and Contractors Register; and
(b)the Board is satisfied that the employee or contractor has been credited with a period of service pursuant to a corresponding law within the period of 4 years ending on the day on which his or her name was removed from the register;
the Board shall re-register the name of the employee or contractor in the Employees and contractors Register.
“(2B) Where the name of an employee or contractor has been re-registered pursuant to subsection (2A), this Ordinance applies in relation to the employee or contractor as if his or her name had not been removed from the Employees and Contractors Register.”.
Annual certificates for employees and contractors
19. Section 46 of the Principal Ordinance is amended:
(a)by omitting from paragraph (a) all the words from and including “days” to and including “industry” and substituting “days’ service”; and
(b)by omitting from paragraph (b) all the words from and including “days” to and including “industry” and substituting “days’ service”.
Annual certificates for employees
20. Section 47 of the Principal Ordinance is amended:
(a)by omitting from paragraph (b) all the words from and including “days” to and including “industry” and substituting “days’ service”; and
(b)by omitting from paragraph (c) all the words from and including “days” to and including “industry” and substituting “days’ service”.
21. Section 50 of the Principal Ordinance is repealed and the following section substituted:
Year of service
“50. For the purposes of this Ordinance, a registered employee or a registered contractor shall be taken:
(a)to have completed a year of service for each 220 days’ service credited to the employee or contractor in the Employees and Contractors Register; and
(b)to have completed a year of recognised service for each 220 days’ recognised service credited to the employee or contractor.”.
Amount of leave
22. Section 51 of the Principal Ordinance is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) A registered employee or registered contractor who is credited with a period of recognised service of not less than 10 years is entitled to:
(a)an amount of long service leave calculated at the rate of 13/15 of a week’s leave for each completed year of service credited to the employee or contractor in the Employees and contractors Register; and
(b)for any remainder of the period of service credited to the employee or contractor in the Employees and Contractors Register—an amount of long service leave equal to the period that bears the same proportion to 13/15 of a week as the remainder bears to one completed year of service.”;
(b)by omitting from paragraph (2) (b) “continuous”; and
(c)by omitting from subsection (2) “subsection (1)” and substituting “paragraphs (1) (a) and (b)”.
23. Sections 53 and 54 of the Principal Ordinance are repealed and the following sections substituted:
Entitlement to payment in lieu of leave
“53. (1) Where:
(a)a registered employee or registered contractor is credited with a period of recognised service (not including the period of any apprenticeship), being a period:
(i)in the case of an employee—of not less than 5 years but less than 10 years; or
(ii)in the case of a contractor—of not less than 1 year but less than 10 years; and
(b)the employee or contractor ceases work in the building and construction industry (for a reason other than total incapacity, death or having reached the prescribed retiring age), with the intention of leaving the industry permanently;
the employee or contractor is entitled to payment in lieu of long service leave in respect of:
(c)an amount of long service leave calculated at the rate of 13/15 of a week’s leave for each completed year of service credited to the employee or contractor in the Employees and Contractors Register; and
(d)for any remaining period of service credited to the employee or contractor in the Employees and Contractors Register—an amount of long service leave equal to the period that bears the same proportion to 13/15 of a week as that remaining period bears to one completed year of service.
“(2) Where:
(a)a registered employee or registered contractor is credited with a period of recognised service of not less than 55 days but less than 10 years; and
(b)the employee or contractor ceases work in the building and construction industry because of total incapacity or death;
the employee or contractor is entitled to payment in lieu of long service leave in respect of:
(c)an amount of long service leave calculated at the rate of 13/15 of a week’s leave for each completed year of service credited to the employee or contractor in the Employees and Contractors Register; and
(d)for any remaining period of service credited to the employee or contractor in the Employees and Contractors Register—an amount of long service leave equal to the period that bears the same proportion to 13/15 of a week as that remaining period bears to one completed year of service.
Payment in lieu of leave on retirement
“54. Where:
(a)a registered employee or registered contractor is credited with a period of recognised service of not less than 55 days but less than 10 years; and
(b)the employee or contractor reaches the prescribed retiring age and, because of reaching that age, ceases to work in the building and construction industry, with the intention of leaving the industry permanently;
the employee or contractor is entitled to payment in lieu of long service leave in respect of:
(c)an amount of long service leave calculated at the rate of 13/15 of a week’s leave for each completed year of service credited to the employee or contractor in the Employees and Contractors Register; and
(d)for any remaining period of service credited to the employee or contractor in the Employees and Contractors Register—an amount of long service leave equal to the period that bears the same proportion to 13/15 of a week as that remaining period bears to one completed year of service.”.
Payment for leave
24. Section 55 of the Principal Ordinance is amended by omitting subsection (4).
Payment in lieu of leave
25. Section 56 of the Principal Ordinance is amended:
(a)by omitting from subsection (1) all the words from and including “or, in” to and including “representative,”;
(b)by omitting from subsection (3) “5 registered medical practitioners nominated by the A.C.T. Branch” and substituting “3 registered medical practitioners nominated by the Capital Territory Group”; and
(c)by omitting subsection (7).
26. After section 56 of the Principal Ordinance the following sections are inserted:
Payment for service in reciprocating State or Territory
“56A. (1) If a registered employee or registered contractor:
(a)is entitled to long service leave, or payment in lieu of long service leave, in respect of a period of service credited to the employee or contractor in the Employees and Contractors Register; and
(b)at the time of making an application in respect of that period of service under section 55 or 56, the employee or contractor is or may be entitled, under the corresponding law of a reciprocating State or Territory, to long service leave, or payment in lieu of long service leave, in respect of a period of service in that State or Territory;
the employee or contractor may, when lodging the application, lodge with the Board an application for payment in respect of the long service leave, or payment in lieu of the long service leave, to which the employee or contractor is or may be entitled under that corresponding law.
“(2) An application shall:
(a)be in writing signed by the applicant;
(b)specify the period of service in the reciprocating State or Territory in respect of which payment is sought; and
(c)in the case of an applicant who has ceased to work in the building and construction industry because of total incapacity—be accompanied by a copy of the registered medical practitioner’s certificate referred to in paragraph 56 (2) (c).
“(3) Where the Board receives an application in respect of a period of service in a reciprocating State or Territory, the Board shall:
(a)send particulars of the application, including details of the period of service credited to the applicant in the Employees and Contractors Register, to the reciprocal authority of that State or Territory; and
(b)send the reciprocal authority any other relevant information, and copies of any relevant documents, in the possession of the Board, including, in the case of an applicant who has ceased to work in the building and construction industry because of total incapacity:
(i)the copy of the registered medical practitioner’s certificate referred to in paragraph (2) (c);
(ii)if the applicant submitted to a medical examination required by the Board pursuant to subsection 56 (3)—a copy of the examiner’s report;
(iii)if the applicant was required to submit to a medical examination under subsection 56 (3) but refused to do so—advice of that refusal; and
(iv)advice as to whether or not the Board is satisfied that the applicant is entitled to payment under this Ordinance in respect of the period of service credited to the applicant in the Employees and Contractors Register.
“(4) If the Board is advised by the reciprocal authority that the applicant is entitled to payment under the corresponding law of the reciprocating State or Territory, the Board shall:
(a)pay the applicant, on behalf of the reciprocal authority, the amount specified for the purpose by the reciprocal authority; and
(b)notify the reciprocal authority that the payment has been made.
Payments by reciprocal authority on Board’s behalf
“56B. (1) If:
(a)the Board receives from a reciprocal authority particulars of an application made to the reciprocal authority by a registered employee or registered contractor for payment in respect of long service leave, or payment in lieu of long service leave, in respect of a period of service credited to the applicant in the Employees and Contractors Register; and
(b)the Board is satisfied that the applicant is entitled to that payment;
the Board may authorise the reciprocal authority to pay the applicant, on behalf of the Board, the amount calculated by the Board in accordance with section 57 as the amount to which the applicant is entitled.
“(2) When considering whether or not an applicant is entitled to payment, the Board may:
(a)take account of the particulars and any information or documents received by the Board from the reciprocal authority in relation to the application; and
(b)in the case of an applicant who has ceased to work in the building and construction industry because of total incapacity, if the Board thinks it necessary—require the applicant:
(i)to produce to the Board the certificate of a registered medical practitioner certifying that the applicant is totally incapacitated for work in the building and construction industry; and
(ii)to submit to a medical examination by a registered medical practitioner selected by the Board from a panel of 3 registered medical practitioners nominated by the Capital Territory Group of the Australian Medical Association.
“(3) All fees or charges payable in respect of a medical examination under subparagraph (2) (b) (ii) shall be paid by the Board.
“(4) If an applicant refuses or fails, without reasonable excuse, to comply with a requirement made pursuant to subparagraph (2) (b) (i) or (ii), the Board may refuse to authorise any payment to be made to the applicant.
“(5) Where the Board has authorised the reciprocal authority to pay the applicant an amount determined by the Board, the Board shall, on being notified by the reciprocal authority that the payment has been made, reimburse the reciprocal authority for that amount within one month after the day on which the payment was made.
27. Section 57 of the Principal Ordinance is repealed and the following sections substituted:
Amount of payment
“57. (1) Where an application for payment is made to the Board, the amount of payment to be made to the applicant in respect of service credited to the applicant in the Employees and Contractors Register shall be calculated in accordance with the formula:
13
x
D
x R,
where:
15 220
(a)D is the number of days’ service credited to the applicant in the Employees and Contractors Register in respect of which the applicant is to be paid; and
(b)R is:
(i)the weekly average of the ordinary remuneration received by the applicant in respect of the period of 4 months ending on the last day of service credited to the applicant in that register in respect of which payment is to be made; or
(ii)if, because of the illness of the applicant during that period of 4 months, or any other circumstances, the weekly average referred to in subparagraph (i) in relation to the applicant is less than the amount that the Board considers would otherwise have been the weekly average of the ordinary remuneration of the applicant during that period—the last-mentioned amount.
“(2) Where an application for payment is made to a reciprocal authority, the amount of payment to be made to the applicant in respect of service credited to the applicant in the Employees and Contractors Register shall be calculated in accordance with the formula:
13
x
D
x R,
where:
15 220
(a)D is the number of days’ service credited to the applicant in the Employees and Contractors Register in respect of which the applicant is to be paid; and
(b)R is the amount determined by the reciprocal authority as the weekly average of the remuneration by reference to which payment is to be made to the applicant in respect of the service credited to the applicant in the State or Territory, as the case requires.
Records of payment and service
“57A. Notwithstanding section 40, where the Board:
(a)pays an amount to a registered employee or registered contractor pursuant to section 55 or 56; or
(b)has reimbursed a reciprocal authority pursuant to subsection 56B (5) for an amount paid to a registered employee or registered contractor;
the Board may delete from the Employees and Contractors Register the particulars relating to the period of service in respect of which the employee or contractor has been paid, but shall keep another record of that period of service, the amount paid to the employee or contractor for long service leave, or in lieu of long service leave, and the period of long service leave (if any) granted to or taken by the employee or contractor.”.
Appeals
28. Section 59 of the Principal Ordinance is amended:
(a)by omitting from paragraph (g) “or” (last occurring); and
(b)by inserting after paragraph (g) the following paragraph:
“(ga)refusing to authorise a payment to be made under section 56B; or”.
Declaration of corresponding laws
29. Section 62 of the Principal Ordinance is amended:
(a)by omitting all the words after “Gazette,” and substituting “, declare the law to be a corresponding law for the purposes of this Ordinance.”; and
(b)by adding at the end the following subsection:
“(2) For the purposes of this Ordinance:
(a)the Building and Construction Industry Long Service Payments Act 1986 of the State of New South Wales;
(b)the Long Service Leave (Building Industry) Act, 1975 of the State of South Australia; and
(c)the Construction Industry Long Service Leave Act 1983 of the State of Victoria;
shall each be deemed to have been declared a corresponding law on 29 September 1986.”.
Benefits under Long Service Leave Ordinance
30. Section 63 of the Principal Ordinance is amended:
(a)by omitting subsection (1) and substituting the following subsection:
“(1) Where a registered employee:
(a)is an employee within the meaning of the Long Service Leave Ordinance or a prescribed law; and
(b)at any time after 1 October 1981, became or becomes entitled to take long service benefits under the Long Service Leave Ordinance or the prescribed law in respect of a period of service in the Territory in the building and construction industry;
the employee shall elect whether to take the benefits provided under either the Long Service Leave Ordinance or the prescribed law, or the benefits provided under either this Ordinance or the corresponding law of a reciprocating State or Territory, in respect of the period of service.”;
(b)by omitting from subsection (2) “continuous”;
(c)by inserting in subsection (3) “or a prescribed law” after “Ordinance”;
(d)by inserting in subsection (4) “or in pursuance of a prescribed law” after “Ordinance” (first occurring);
(e)by inserting in subsection (4) “or the prescribed law” after “Ordinance” (last occurring);
(f)by inserting in subsection (5) “or in pursuance of the prescribed law” after “Ordinance”; and
(g)by omitting subsection (6) and substituting the following subsection:
“(6) For the purposes of subsections (4) and (5), the prescribed amount is a proportion of the amount that would have been payable by the Board to the registered employee if the employee had been entitled to payment for long service leave under this Ordinance in respect of the period specified by the employee under subsection (2), being a proportion calculated in accordance with the formula:
P1 where: P2 (a)P1 is the number of working days in the period that commenced on 1 October 1981 and ending on the date on which the employee became or becomes entitled to Long Service Benefits under the Long Service Leave Ordinance or the prescribed law; and
(b)P2 is the number of working days in the period specified by the employee under subsection (2).”.
Agreements with other States and Territories
31. Section 64 of the Principal Ordinance is amended:
(a)by omitting “approved under section 62 a law of a State or another Territory” and substituting “declared a law of a State or another Territory to be a corresponding law”; and
(b)by inserting “reciprocal agreement or” before “reciprocal” (wherever occurring).
Repeal
32. Section 65 is repealed.
NOTES
Notified in the Commonwealth of Australia Gazette on 1 May 1987.
No. 23, 1981 as amended by Nos. 12 and 56, 1984; No. 55, 1986.
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