Long Service Leave (Construction Industry) Act 1971
An Act to provide for the making of long service leave payments in respect of service in certain employments, and for matters incidental thereto
[Royal Assent 26 November 1971]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1. Short title and commencement
[Section 1 Amended by No. 104 of 1980, s. 4 ](1) This Act may be cited as the Long Service Leave (Construction Industry) Act 1971 .(2) This Act shall commence on a date to be fixed by proclamation.
[Section 2 Amended by No. 29 of 1973, s. 2 ][Section 2 Amended by No. 104 of 1980, s. 9 and Sched. 1 ][Section 2 Amended by No. 14 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –age for retirement, in relation to an employee, means –(a) in a case where the employee is engaged in relevant employment for which an age for retirement is prescribed by an industrial award or fixed by the terms of his contract of employment, the age so prescribed or fixed; or(b) in any other case, the age of 65 years in the case of a male, or 60 years in the case of a female;business includes any trade, process, profession, or occupation, or any part thereof;employee means a person who is, or has been, employed in relevant employment;employer, in relation to any relevant employment in which an employee is or has been engaged, means his employer in that employment;Fund means the Long Service Leave (Construction Industry) Fund established under this Act;industrial dispute means a dispute in relation to any matter affecting or relating to the relations of employers and employees in any business;inspector means an inspector for the purposes of the Long Service Leave Act 1976 ;long service leave contribution means a long service leave contribution payable under section 8 ;long service leave payment means a long service leave payment under section 9 ;relevant employment means employment to which this Act applies;Review Committee means the Long Service Leave (Construction Industry) Fund Review Committee appointed under section 12A ;Secretary means the Secretary of the Department.
3. Employment to which the Act applies
[Section 3 Amended by No. 30 of 1995, s. 3 and Sched. 1 ](1) [Section 3 Subsection (1) substituted by No. 104 of 1980, s. 5 ]This Act applies to the employment on a permanent or casual basis of a person by an employer for the purposes of the carrying out by the employer of any work specified in Schedule 1 so long as the person is employed on the site of the work or, if he is not employed on the site of the work, is employed by that employer in making, preparing, storing, or transporting goods or materials for use in that work.(2) [Section 3 Subsection (2) substituted by No. 104 of 1980, s. 5 ]If an employer who is not engaged in the carrying out of any work specified in Schedule 1 employs a person in the ordinary maintenance of the plant and equipment of his business, or in some other manner which is incidental to the ordinary conduct of his business, the employer does not thereby employ that person in relevant employment, notwithstanding that the nature of the work done by the person is similar to that specified in Schedule 1 .(3) [Section 3 Subsection (3) substituted by No. 29 of 1973, s. 3 ]A period of relevant employment of less than one full working day's duration shall be disregarded for the purposes of this Act.(4) References in this Act to employment shall be construed as including references to employment as an apprentice or under a contract of employment under which the employee is required to learn or be taught any trade or business.(5) [Section 3 Subsection (5) amended by No. 104 of 1980, s. 5 ]Except as otherwise provided, this Act binds the Crown, and, in relation to a person who, in the service of the Crown, engages in any employment to which this Act applies, references in this Act to his employer shall be construed as references to the authority having power to terminate his employment.(6) This Act does not apply to relevant employment that terminated before the commencement of this Act; but, subject to the foregoing provisions of this subsection, this Act applies to periods of relevant employment notwithstanding that they commenced before the commencement of this Act.(7) [Section 3 Subsection (7) inserted by No. 104 of 1980, s. 5 ]This Act does not apply to relevant employment on and after 1st January 1979 if the Secretary is satisfied that the employment is or was employment by a council under an unemployment relief programme.
(1) In respect of periods of employment to which this Act applies that have, under this Act, become periods of reckonable service there becomes payable, in such circumstances as are specified in this Act, to the employee, or, if he has died, his legal personal representatives, a long service leave payment of an amount determined in accordance with this Act.(2) [Section 4 Subsection (2) amended by No. 104 of 1980, s. 9 and Sched. 1 ]For the purpose of meeting the payments referred to in subsection (1) there shall be established a Long Service Leave (Construction Industry) Fund to which employers are required, in such circumstances as are specified in this Act, to make long service leave contributions in respect of the periods of relevant employment of their employees.
5. Reckoning of service for long service leave payments
(1) Where relevant employment is terminated, otherwise than by the employer for the serious and wilful misconduct of the employee, the period of that employment (except so much thereof as has already become a period of reckonable service) becomes a period of reckonable service.(2) Where an employee is engaged in relevant employment and the period of that employment is of such a length that, if it became a period of reckonable service, the total length of the period of reckonable service of the employee would be such as to give rise to an entitlement to a long service leave payment under section 9 (1) that period of relevant employment becomes a period of reckonable service.(3) Where an employee receives a long service leave payment in respect of an entitlement arising otherwise than under section 9 (1) , the reckonable service in respect of which the payment is made shall thereafter be disregarded for the purposes of this Act and, accordingly, no account shall be taken thereof in determining at any subsequent time the length of the period of reckonable service of the employee.
6. Commencement and termination of relevant employment
(1) Subject to this section, relevant employment of an employee with an employer shall, for the purposes of this Act –(a) be deemed to have commenced when the employee enters the employment of that employer in any relevant employment or, being in the employment of that employer otherwise than in relevant employment, he engages in relevant employment in the employment of that employer; and(b) be deemed to have terminated when the employee ceases to be employed by that employer or, although remaining in the employment of that employer, he ceases to be engaged by him in relevant employment.(2) The occurrence of any circumstances specified in Part I or Part II in Schedule 2 shall, for the purposes of this Act, be deemed not to have terminated any relevant employment in which the employee was engaged at the time of the occurrence and that employment shall, for those purposes, be deemed to have continued notwithstanding the occurrence of that circumstance.(3) References in this Act to the termination of relevant employment shall be construed as including, if the employee dies while he is engaged in that employment, references to his death.(4) Where a business in which an employee is employed by an employer in relevant employment is transmitted by that employer (in this subsection referred to as the "transmittor") to another person (in this subsection referred to as the "transmittee") and, on that transmission, that employee becomes an employee of the transmittee in relevant employment, that relevant employment with the transmittor (including any previous relevant employment deemed, for the purposes of this Act, to have been continuous therewith by virtue of this subsection) shall for the purposes of this Act be deemed not to have terminated, but to have been employment with the transmittee continuous with the relevant employment of the employee with him following the transmission of the business.(5) References in this section to the transmission of a business shall be construed as including references to any transfer, conveyance, or assignment of, or any succession to, that business, whether by agreement or operation of law.
7. Calculation of length of reckonable service
In calculating for the purposes of this Act the length of a period of relevant employment of an employee any interruption of, or absence from, that employment of a kind specified in Part I of Schedule 2 shall be regarded as part of that employment, but an interruption of or absence from, that employment of a kind specified in Part II of that Schedule shall not be counted as part of that employment.
8. Long service leave contributions by employers
(1) [Section 8 Subsection (1) amended by No. 29 of 1973, s. 4 ]Subject to subsection (1A) , where relevant employment of an employee is terminated there becomes payable into the Fund by the employer a long service leave contribution of an amount equivalent to the prescribed proportion of, or, if no such proportion is prescribed, equivalent to, the amount of the ordinary pay of the employee for a period commencing on the termination of that employment and of a length equivalent to one-sixtieth of the length of the period of that employment.(1A) [Section 8 Subsection (1A) inserted by No. 29 of 1973, s. 4 ]No long service leave contribution is payable under subsection (1) in respect of a period of relevant employment if the period commencing on the day on which that employment commences and ending on the day on which it terminates is a period of less than 7 days.(2) A long service leave contribution that has become payable under subsection (1) is recoverable by the Secretary as a debt due to the Crown incurred by the employer, but no proceedings shall be taken under this subsection for the recovery of a long service leave contribution until the expiration of one month after the notification of the amount thereof by the Secretary to the person by whom it is payable.
8A. Payments into Fund may be made quarterly
[Section 8A Inserted by No. 104 of 1980, s. 6 ](1) An employer may, by notice in writing served on the Secretary, elect to pay long service leave contributions under this section.(2) An employer who makes an election under this section is not liable to make long service leave contributions under section 8 in respect of relevant employment terminating after the date on which the election is made, but he becomes liable to pay long service leave contributions under this section.(3) An employer who has made an election under this section is liable to pay into the Fund at the end of each quarter a long service leave contribution of an amount equal to the prescribed proportion or, if no proportion is prescribed, 2 per cent of the earnings of his employees in respect of their relevant employment with him during that quarter (excluding any employment before the date on which the election was made).(4) In addition to any contributions payable under subsection (3) , an employer who has made an election under this section is liable to pay into the Fund a long service leave contribution of an amount equal to –(a) if it is paid within 12 months of the date of the making of the election, the amount of the long service leave contributions that would, apart from this section, have been payable if the employment of all his employees then in relevant employment with him had terminated on the making of the election; or(b) if it is not so paid, 2 per cent of the earnings of each employee employed by him in relevant employment at the date on which the election was made in respect of the relevant employment of that employee before that date that was continuous to that date.(5) An employer is not required to discharge his liabilities under subsection (4) (b) before the expiration of 3 years from the commencement of this section or such further period, not exceeding 2 years, as the Secretary may allow, and, where an employer fails to discharge his liability to pay a long service leave contribution under this section, the contribution may be recovered from him as a debt due to the Crown.(6) An employer who makes an election under this section shall furnish the Secretary with a return containing the prescribed particulars with respect to the employees employed by him in relevant employment at the date on which the election is made.(7) Where an employer is required under subsection (3) to make a long service leave contribution in respect of a quarter, he shall, within 14 days after the end of the quarter, furnish the Secretary with a return specifying –(a) the persons who, during the quarter, commenced or resumed relevant employment with him; and(b) the persons who, during that quarter, ceased to be employed by that employer in relevant employment.(8) An election made under subsection (1) is irrevocable.(9) This section does not apply to relevant employment in the service of the Crown or in a department or branch of any of the services of the State or in an undertaking carried on by or on behalf of the State.
9. Entitlement to long service leave payments
[Section 9 Subsection (6) amended by No. 104 of 1980, s. 7 ][Section 9 Subsection (6) amended by No. 82 of 1986, s. 4 ](1) Without prejudice to the following provisions of this section, on the completion of 15 years' reckonable service of an employee, and on the completion of each 10 years of such service thereafter, there arises an entitlement to a long service leave payment.(2) There arises an entitlement to a long service leave payment on the termination of relevant employment of an employee whose period of reckonable service is at least 15 years.(3) [Section 9 Subsection (3) amended by No. 29 of 1973, s. 5 ]There arises an entitlement to a long service leave payment where the period of reckonable service of an employee is at least 7 years and relevant employment in which he is engaged –and, during the prescribed period, the employee is unable to obtain relevant employment.(a) is terminated by the employer otherwise than for the serious and wilful misconduct of the employee; or(b) is terminated by the employee on account of a domestic or other pressing necessity of such a nature as to justify the termination of the employment –(4) For the purposes of subsection (3) an employee shall be regarded as being unable to obtain relevant employment only if –(a) he is making all efforts reasonable in the circumstances to obtain such employment;(b) there is a domestic or other pressing necessity of such a nature as to justify his not seeking or not engaging in such employment; or(c) he is suffering from illness or incapacity of such a nature as to justify his not engaging in such employment.(5) [Section 9 Subsection (5) amended by No. 29 of 1973, s. 5 ]An entitlement to a long service leave payment arises where the period of reckonable service of an employee is at least 7 years and –(a) relevant employment in which he is engaged is terminated on account of illness or incapacity of the employee of such a nature as to justify the termination of the employment; and(b) during the prescribed period he does not engage in relevant employment on account of illness or incapacity of such a nature as to justify his not so engaging.(5A) [Section 9 Subsection (5A) inserted by No. 104 of 1980, s. 7 ]An entitlement to a long service leave payment arises on the death of a person to whom this subsection applies whether or not at the time of his death he was engaged in relevant employment.(5B) [Section 9 Subsection (5B) inserted by No. 104 of 1980, s. 7 ]A person to whom subsection (5A) applies is a person –(a) whose period of reckonable service is at least 7 years; and(b) whose last employment before his death was relevant employment.(6) [Section 9 Subsection (6) amended by No. 29 of 1973, s. 5 ]An entitlement to a long service leave payment arises where the period of reckonable service of an employee is at least 7 years and relevant employment in which the employee is engaged –(a) . . . . . . . .(b) is terminated on, or at any time after, his attaining the age for retirement.(6A) [Section 9 Subsection (6A) inserted by No. 82 of 1986, s. 4 ]For the purposes of subsection (6) (b) , an employee who terminates his employment on or after becoming eligible for a service pension under section 84 of the Repatriation Act 1920 of the Commonwealth shall be deemed to have attained the age for retirement.(7) In this section prescribed period, when used in relation to the termination of relevant employment in which an employee was engaged, means the period of 2 months following that termination, or, if the employee dies during that period, the period from that termination until his death.
10. Amount of long service leave payments
(1) The amount of the long service leave payment to which an employee is entitled in respect of an entitlement arising under section 9 (1) in respect of any period of reckonable service is an amount equivalent to the ordinary pay of the employee in the relevant employment in which he was engaged on such date as he may notify to the Secretary, being a date not earlier than the end of that period of reckonable service, for a period commencing on the date so notified and of a length equivalent to one-sixtieth of the length of the period of reckonable service in respect of which the entitlement to the payment arose.(2) [Section 10 Subsection (2) amended by No. 29 of 1973, s. 6 ]Where an entitlement to a long service leave payment arises otherwise than under section 9 (1) , the amount of that payment is an amount equivalent to the ordinary pay of the employee –for a period commencing on the termination of the relevant employment referred to in paragraph (a) or paragraph (b) of this subsection and of a length equivalent to one-sixtieth of the length of his reckonable service up to and including the date on which the entitlement arose.(a) in a case where the entitlement arose on the termination of a period of relevant employment, in the relevant employment in which the employee was engaged immediately before the entitlement arose; or(b) in any other case, in the relevant employment in which the employee was last engaged before the entitlement arose –(3) A long service leave payment to which an entitlement has arisen under this Act shall, on application made to the Secretary in the prescribed manner, be paid by the Treasurer to the employee or, if he has died, his legal personal representatives.
11. Computation of "ordinary pay"
[Section 11 Substituted by No. 29 of 1973, s. 7 ](1) Where, for the purposes of this Act, it is necessary to determine the ordinary pay of an employee for any period (in this section referred to as the "relevant period"), that ordinary pay shall, subject to this section, be reckoned as a sum equivalent to the remuneration he would reasonably be expected to have received in respect of that period in the relevant employment in which he was engaged immediately before the commencement thereof, assuming that he continued in that employment throughout that period.(2) For the purposes of subsection (1) the following provisions have effect, that is to say:(a) it shall be assumed that, throughout the relevant period, the employee works his normal weekly number of hours of work and does not receive or become entitled to any payments by way of overtime or as a consequence of his working in excess of that weekly number of hours;(b) where the employee is ordinarily employed on any shift or roster system or any other similar system whereby the times at which he is required to attend at his work vary from time to time, it shall be assumed, subject to paragraph (a) , that he continues to be so employed throughout the relevant period;(c) any payments to which the employee may become entitled by way of disability allowance shall be disregarded;(d) any allowance paid to an employee by his employer in respect of the provision by the employee of tools or other equipment required in his work shall be regarded as part of the remuneration of that employee;(e) subject to paragraph (f) , where the employee is provided with board and lodging by his employer the cash value thereof shall be regarded as part of his remuneration;(f) where, because the work done by the employee is in such a locality as to necessitate his sleeping elsewhere than at his genuine place of residence, or because of other special circumstances, board and lodging are provided, or payments in respect thereof are made, by his employer, the value of that board and lodging and the payments made in respect thereof shall be disregarded;(g) subject to paragraphs (e) and (f) the value of any meals or refreshments provided for the employee, or any payments made in respect of meals or refreshment taken by him, shall be disregarded;(h) any payments to which an employee may become entitled in respect of his travelling to or from, or in the course of, his work, or the use of a vehicle for that purpose, shall be disregarded;(i) any payments that are, or may be, made to an employee at the discretion of his employer by way of bonus shall be disregarded.(3) Subject to the provisions of subsection (2) where the remuneration received by an employee in his employment depends on the results achieved by him it shall be assumed, for the purposes of subsection (1) , that the rate of his remuneration in that employment for the relevant period is the average rate of the remuneration received by him in that employment during the period of 3 months ending on the commencement of that period.(4) Subject to subsections (2) and (3) where no ordinary rate of remuneration is fixed for an employee's work under the terms of his employment the rate of his remuneration in that employment for the relevant period shall be taken to be the average rate of his remuneration in that employment throughout the period of 12 months ending on the commencement of the relevant period.(5) Subsections (3) and (4) apply to a part of the remuneration of an employee as if reference therein to his remuneration included references to a part of his remuneration.(6) Where no normal weekly number of hours of work is fixed for an employee under the terms of his employment, his normal weekly number of hours of work in that employment shall for the purposes of this section be taken to be the average weekly number of hours worked by him in that employment during the period of 12 months ending on the commencement of the relevant period.(7) Where the relevant employment with a particular employer in which an employee was engaged at the commencement of the relevant period, or the relevant employment of an employee with a particular employer that terminated at the commencement of the relevant period, commenced less than 12 months before the commencement of the relevant period, the following provisions have effect, that is to say:(a) if that relevant employment commenced less than 3 months before the commencement of the relevant period, subsection (3) has effect as if for the reference to the period of 3 months mentioned therein there were substituted a reference to the whole period of that relevant employment;(b) subsections (4) and (6) have effect as if for the references to the periods of 12 months mentioned therein there were substituted references to the whole period of that relevant employment.(8) For the purposes of subsection (2) a disability allowance is any allowance payable to an employee as a consequence of his working in specified circumstances, being circumstances that involve, or are likely to involve, special danger, hardship, or inconvenience to the employee, but it does not include any such allowance in any case where it is reasonably to be expected that persons engaged in the type of employment in which the employee is ordinarily engaged would be entitled to that allowance for the whole, or the greater portion, of the time in which they are so engaged.(9) Where an employee has died any variation in the terms or conditions of his employment that, had he lived, would have come into effect after the date of his death shall be disregarded for the purposes of this section.
12. Long Service Leave (Construction Industry) Fund
(1) [Section 12 Subsection (1) amended by No. 104 of 1980, s. 9 and Sched. 1 ]There shall be established in the books of the Treasury a fund to be called the Long Service Leave (Construction Industry) Fund.(2) There shall be credited to the Fund –(a) the long service leave contributions paid under this Act; and(b) any other sums that, under this Act, are required to be paid into or repaid to the Fund.(3) There shall be defrayed out of the Fund –(a) the long service leave payments required to be paid under this Act;(b) any other payments required by this Act to be paid out of the Fund; and(c) the expenses that the Treasurer, on the certificate of the Secretary, is satisfied to have reasonably been incurred in the administration of this Act.(4) The Treasurer shall invest the money for the time being standing to the credit of the Fund in the like manner as he may invest money standing to the credit of the Special Deposits and Trust Fund established under the Public Account Act 1957 and any interest that is received from that investment shall be paid into the Fund.(5) Where the Treasurer certifies that any payment that is required to be defrayed out of the Fund cannot immediately be met by the Fund there shall be paid out of the Consolidated Fund into the Fund a sufficient sum to enable that payment so to be defrayed, and the Consolidated Fund, by virtue of this section, is to the necessary extent, appropriated accordingly.(6) Where any sums have been paid into the Fund under subsection (5) , the Treasurer shall cause that sum to be repaid from the Fund into the Consolidated Fund when he is of opinion that the amount for the time being standing to the credit of the Fund is sufficient to justify that repayment being made.
[Section 12A Inserted by No. 29 of 1973, s. 8 ][Section 12A Amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 12A Amended by No. 14 of 1995, s. 3 and Sched. 1 ](1) [Section 12A Subsection (1) amended by No. 104 of 1980, s. 9 and Sched. 1 ]For the purposes of this Act there shall be a committee to be known as the Long Service Leave (Construction Industry) Fund Review Committee.(2) The Review Committee shall consist of the Secretary, who shall be the chairman of the committee, and 2 other persons appointed by the Minister –(a) one of whom shall be appointed on the nomination of the Tasmanian Chamber of Industries; and(b) one of whom shall be appointed on the nomination of the Tasmanian Trades and Labor Council.(3) If an organization referred to in subsection (2) ceases to exist, or ceases to exist under the name mentioned therein, the Governor may by new order substitute for that organization some other organization that he is satisfied –(a) in the case of the organization specified in paragraph (a) of that subsection, sufficiently represents the interests of employers in the State; and(b) in the case of the organization specified in paragraph (b) of that subsection, sufficiently represents the interests of persons employed in the State.(4) Where a member of the Review Committee is required to be appointed on the nomination of any organization and no person is nominated for that appointment in accordance with directions given by the Minister in that behalf he may appoint some person he considers suitable as a member of the committee in the place of the member so required to be appointed.(5) A member of the Review Committee (other than the chairman) holds office on the terms of the instrument by which he was appointed; but he may resign his office by notice given to the Minister.(6) The chairman of the Review Committee, or, if he is absent or there is no chairman, such one of the other members present as they may choose, shall preside at each meeting of the committee.(7) The chairman or other person presiding at a meeting of the Review Committee has a deliberative vote, but in the event of an equality of votes on any matter before a meeting of the committee, the chairman, if he is present, may exercise a second or casting vote and, if that right is not exercised, the matter stands adjourned to the next meeting of the Board.(8) Two members of the Review Committee constitute a quorum at any meeting of the committee.(9) Subject to this Act the Review Committee may regulate its own proceedings.(10) [Section 12A Subsection (10) substituted by No. 29 of 1984, s. 3 and Sched. 1 ]The Secretary may appoint an employee employed in the Department to be secretary of the Review Committee, and that employee may hold that office in conjunction with his position in the State Service.(11) [Section 12A Subsection (11) added by No. 29 of 1984, s. 3 and Sched. 1 ]The Minister may make arrangements to render available to the Review Committee such accommodation as the committee may require.
12B. Periodical review of Fund
[Section 12B Inserted by No. 29 of 1973, s. 8 ]The Review Committee shall, as soon as practicable after the expiration of each period of 3 years following the commencement of this Act, and at such other times as the Minister may require inquire into the state of the Fund and report on the results of the inquiry, making such recommendations with respect to the prescribing of a proportion for the purposes of section 8 as it thinks proper.
12C. Return of long service leave contributed in certain cases
[Section 12C Inserted by No. 29 of 1973, s. 8 ](1) [Section 12C Subsection (1) amended by No. 82 of 1986, s. 5 ]Where, in the case of an employee, an entitlement to a long service leave payment has not arisen an employer is entitled to be refunded the long service leave contributions paid into the Fund in respect of that employee if –(a) a period of relevant employment of the employee is terminated by his death; or(b) a period of relevant employment of the employee is terminated –and he has not subsequently engaged in any relevant employment and the Review Committee is satisfied that he is unlikely again to so engage.(i) by reason of illness or incapacity; or(ii) on or after his attaining the age for retirement –(2) An application for a refund under this section shall be made to the Review Committee in such manner as it may approve and on being notified by the Review Committee that the person making the application is entitled to the refund, the Treasurer shall make the necessary payment to him from the Fund.(3) [Section 12C Subsection (3) added by No. 82 of 1986, s. 5 ]For the purposes of subsection (1) (b) , an employee who terminates his employment on or after becoming eligible for a service pension under section 84 of the Repatriation Act 1920 of the Commonwealth shall be deemed to have attained the age for retirement.
13. Certificates of service from employers
(1) On the termination of the relevant employment of an employee the employer shall forward to the Secretary a certificate in the prescribed form containing such particulars and other matters with respect to the employee or that employment as may be prescribed.(2) On a demand made by or on behalf of the employer, an employee shall furnish such information or other matters as the employer needs to know or obtain to prepare the certificate referred to in subsection (1) .(3) On the application of the employee or, if he has died, his legal personal representatives, made within 2 years of the termination of any relevant employment of that employee, the employer shall furnish him or them with a copy of any certificate forwarded by the employer to the Secretary under subsection (1) in respect of that employment.
14. Determinations of periods of service, &c., by Secretary
(1) The Secretary may, and, on application in accordance with this section, shall, determine whether –(a) any period of relevant employment has become a period of reckonable service; or(b) any entitlement to a long service leave payment has arisen under this Act.(2) Where it has been determined under subsection (1) that a period of relevant employment has become a period of reckonable service, the Secretary shall determine –(a) the length of that period of reckonable service; and(b) the amount of any long service leave contribution payable in respect thereof.(3) On an application under subsection (3) of section 10 the Secretary shall determine the amount of the long service leave payment required to be made under that subsection.(4) A certificate signed by the employee and by the employer, or some person acting on his behalf, stating any matter relating to the employment of the employee with the employer is sufficient evidence for the purposes of this section of any matter stated in the certificate unless it appears to the Secretary that the matter so stated is incorrect.(5) On an application in accordance with this section the Secretary may vary any determination made under this section if he is satisfied that it is just so to do on the ground that the determination was made on information that was incomplete or incorrect, and that determination shall have effect and be deemed always to have effect as so varied.(6) Where a determination is varied under subsection (5) and as a result of the variation it appears that any sum was paid that should not have been paid it shall be repaid and be recoverable as if it were a sum paid at the time the variation was made under a mistake of fact.(7) Subject to section 15 , any determination or variation of a determination, made under this section shall be conclusive of the matters to which it relates; and no period of relevant employment shall be treated as having become a period of reckonable service unless it has been so determined under this section.(8) An application under this section shall be made in the prescribed manner, and may be so made by the employee or, if he has died, his legal personal representatives, or by the employer or any other person who may be liable to pay a long service leave contribution in respect of the employment to which the application relates.
15. Appeals against decisions of Secretary
(1) Any person who is aggrieved by any determination made by the Secretary under section 14 may appeal to a magistrate.(2) An appeal under this section shall be instituted, heard, and determined as prescribed.(3) The decision of a magistrate under this section is final.(4) On an appeal under this section the magistrate (unless he dismisses the appeal) may quash or vary the determination of the Secretary, and, if he varies the determination the determination has effect as so varied.
16. Records to be kept by Secretary
(1) The Secretary shall keep and maintain records of the determination and variations of determinations made under section 14 .(2) Any person, or some other person authorized by him in that behalf, is entitled on payment of the prescribed fee, to inspect any records kept under this section so far as they relate to any matter affecting his rights or obligations under this Act.(3) On an application by an employee, or if he has died, his legal personal representatives, the Secretary shall, on the payment of the prescribed fee, furnish a statement, in the prescribed form, setting out the periods of reckonable service of that employee.
17. Records to be kept by employers
An employer shall, with respect to the persons employed by him in relevant employment, keep records in such form, and containing such particulars, as may be prescribed.
(1) An inspector –(a) may require a person to produce, at such time and place as the inspector specifies, the records required to be kept by that person under this Act, and inspect or make a copy of, or an extract from, any such record;(b) may make such inquiries as he considers necessary to ascertain whether any person is, or has been, engaged in, any relevant employment, or the period for which, or the terms and conditions on which, he is, or has been, so engaged; and(c) may, at any reasonable time, for the purposes of exercising his powers under this section or of ascertaining whether the provisions of this Act have been complied with, enter the premises of any person who, he believes, is employing, or has employed, any persons in relevant employment.(2) Nothing in this section authorizes an inspector to enter any parts of a building that are used exclusively for the purposes of a private dwelling-house.
(1) [Section 19 Subsection (1) amended by No. 104 of 1980, s. 8 ]An employer who –is guilty of an offence.(aa) being an employer who has elected to pay long service leave contributions under section 8A , fails to furnish the Secretary with a return required by section 8A (7) ;(a) fails to comply with the provisions of section 13 (1) or (3) ;(b) fails to keep any records that he is required to keep under section 17 ;(c) fails to ensure that those records are complete and correct; or(d) fails or refuses to comply with a requirement made by an inspector under section 18 (1) (a) –(2) A person who –is guilty of an offence.(a) makes or causes to be made a false or misleading statement in, or a material omission from, any record that is required to be kept under section 17 ;(b) makes any false or misleading representation to the Secretary with reference to any matter with respect to which the Secretary is required to make a determination under section 14 ; or(c) makes any false or misleading representation in response to any inquiries made of him under section 18 (1) (b) –(3) In proceedings for an offence under subsection (2) it is a defence to show that the statement, omission, or representation complained of resulted from an error made in good faith and without any intention to mislead.(4) An employee who –is guilty of an offence.(a) refuses or fails to comply with a demand made under subsection (2) of section 13 ; or(b) in response to a demand made under that subsection furnishes any information that he knows to be false or does not believe to be true –(5) [Section 19 Subsection (5) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding 20 penalty units.(6) Notwithstanding anything in the Justices Act 1959 proceedings in respect of an offence under this section may be commenced at any time within one year after the cause of complaint arises.(7) Proceedings in respect of an offence under this section shall be heard and determined by a magistrate sitting alone.
20. Prohibition on contracting out
Except as otherwise expressly provided therein, the provisions of this Act have effect notwithstanding any covenant, agreement, or arrangement to the contrary (whether entered into before or after the commencement of this Act), and no such covenant, agreement, or arrangement operates so as to annul, vary, or exclude any of the provisions of this Act.
(1) The Secretary may, subject to such conditions as he thinks fit to impose, exempt any employment from the operation of this Act if he is satisfied –(a) that the employees engaged in that employment are, under the terms of their employment entitled, under any scheme established or conducted by or on behalf of the employer, to benefits that are not less favourable to those employees than those provided by this Act; and(b) that it is in the best interests of those employees that the exemption should be granted.(2) An exemption granted under subsection (1) shall be granted so as to operate for such period, not exceeding 5 years, as the Secretary may determine, and may be renewed so as to operate for such further periods, not exceeding 5 years at any one time, as the Secretary may think desirable.(3) The Secretary may revoke an exemption granted under this section in respect of any employment if he is satisfied that it is in the best interests of the employees so to do.(4) Subject to this section no period of employment that, under this section, is exempt from the operation of this Act shall be treated for the purposes thereof as a period of relevant employment.(5) Where the Secretary revokes or refuses to renew an exemption granted under this section in respect of any employment this Act applies to that employment as if that exemption had never been granted, except that, where any payment has been made under the scheme in relation to which the exemption was granted to or in respect of an employee in relation to any period of his employment, that period of employment shall not be treated as a period of relevant employment for the purposes of this Act.
22. Effect on other long service leave legislation
[Section 22 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ](1) [Section 22 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]For the purposes of this section,long service leave legislation means –(a) the Long Service Leave Act 1976 ;(b) the Long Service Leave (State Employees) Act 1995 ;(c) Division 1 of Part 7 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; and(d) any law of the Commonwealth providing for the granting of long service leave or furlough, or payments in lieu thereof.(2) Notwithstanding any other provision of this Act, no period of employment in respect of which there has arisen, under any long service leave legislation, an entitlement to be granted long service leave or furlough, or to any payment in lieu thereof, shall be treated as a period of relevant employment under this Act.(3) Where a period of long service leave or furlough is granted under any long service leave legislation, or any payment is made under that legislation in lieu thereof, and that leave is granted or that payment is made in respect of any period of employment that includes any period of employment in respect of which a long service leave contribution has been paid under this Act, that contribution shall be refunded to the person by whom that long service leave is granted or the payment in lieu thereof made, as the case may be.(4) A sum refunded under subsection (3) shall, on an application being made in the prescribed manner to the Secretary, be paid by the Treasurer out of the Fund to the person to whom it is due.
The Governor may make regulations under this Act.
SCHEDULE 1 - Employment to which this Act applies
1. The construction, reconstruction, alteration, demolition, maintenance, or repair of any of the following works, namely:
any
building;
any
road, railway, or other way for the use of persons, animals or vehicles;
any
breakwater, dock, jetty, pier, or wharf, or any works required in connection with the improvement or alteration of any harbour, river, or watercourse for the purposes of navigation;
any
works for the storage or supply of water or for the irrigation of land;
any
works for the conveyance, treatment, or disposal of sewage or the effluent from any premises;
any
bridge, viaduct, aqueduct, or tunnel;
any
chimney stack, cooling tower, drilling rig, gasholder, or silo;
any
pipeline;
any
structure, fixture, or work required for the use of any building or other work referred to in the foregoing provisions of this clause.
2. The preparation of a site for or the laying of the foundations of any building or other work referred to in clause 1 .
3. The construction, reconstruction, alteration, demolition, maintenance, or repair of any ship, boat, or other vessel.
4. The dunnaging of a ship's hold.
SCHEDULE 2 - Interruptions in Employment
PART I - Interruptions to be included in periods of service
1. Absence from work of the employee on annual leave.
2. Absence from work of the employee on account of illness or injury certified as necessary by a medical practitioner.
3. Absence from work of the employee, by leave of the employer, for the purpose of attending a meeting of the Training Authority of Tasmania or of any training advisory committee appointed under the Industrial and Commercial Training Act 1985 .
4. Absence of the employee from work on account of an injury arising out of and in the course of his employment.
5. [Schedule 2, Part I Clause 5 amended by No. 46 of 1991, s. 5 and Sched. 3 ]Absence of the employee from work for the purpose of –(a) complying with a summons to serve as a juror;(b) appearing to give evidence before any court, body, or person before which persons may by law be required to appear to give evidence; or(c) complying with any requirement or exercising any right to appear before such a court, body, or person as is referred to in subclause (b) , whether as a party to any proceedings or as a witness or otherwise.(d) . . . . . . . .
6. [Schedule 2, Part I Clause 6 added by No. 44 of 1973, s. 2 ]Absence from work of an employee on a public holiday in accordance with the terms and conditions of his service.
PART II - Interruptions to be excluded from periods of service
1. Any interruption of the employment of the employee arising directly or indirectly from an industrial dispute if the employee returns to work in accordance with the terms of settlement of the dispute.
2. Any standing down of an employee on account of slackness of trade, if the employee returns to work in relevant employment within 14 days after –(a) receiving from the employer an offer of re-employment; or(b) the date on which the employer posts to the employee, by registered letter or certified mail addressed to the employee at his last-known address, a notice to resume work.
3. Any absence of the employee from work with the leave of his employer, not being absence referred to in Part I .