Long Service Leave (State Employees) Act 1994

Long Service Leave (State Employees) Act 1994

An Act to provide for long service leave entitlements for State employees

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:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Long Service Leave (State Employees) Act 1994 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

age for retirement means –

(a) the age prescribed by the Act under which an employee is employed as the age at which the employee is entitled to retire from employment; or

(b) if no age is so prescribed, the age of 55 years;

Commission means the Tasmanian Industrial Commission constituted under the Industrial Relations Act 1984 ;

Commissioner means a member of the Commission;

day means a working day;

[Section 3 Amended by No. 10 of 2003, s. 4, Applied:16 Apr 2003] employee means a State Service officer, State Service employee or any other person who is employed in any capacity by a State authority or a prescribed employer as a full-time employee or a part-time employee and includes–

(a) a person so employed whose terms and conditions of employment are prescribed by an industrial award; and

(b) [Section 3 Amended by No. 49 of 2019, s. 4, Applied:18 Dec 2019] a person appointed under the Parliamentary Privilege Act 1898 ;

Full Bench means a Full Bench of the Commission constituted under the Industrial Relations Act 1984 ;

[Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] full-time employee means an employee who is required to devote the whole of working time to the duties of the position or appointment and includes the holder of a Government scholarship;

[Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Government department has the same meaning as it has in the State Service Act 2000 ;

[Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001]

[Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Head of an Agency means the Head of a State Service Agency;

holder of a Government scholarship means a person who is studying or training full-time under a scholarship provided by the State or a State authority;

industrial award means –

(a) any order or award under the Industrial Relations Act 1988 of the Commonwealth and any agreement under that Act having the force of an order or award; and

(b) any award or agreement under the Industrial Relations Act 1984 ;

inspector means a person holding office as an inspector under the Industrial Relations Act 1984 ;

part-time employee means an employee who is employed in other than full-time employment;

prescribed authority means –

(a) [Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] the appropriate Head of a State Service Agency, in the case of a State Service officer or State Service employee; or

(b) the person holding the office specified opposite that employee in column 2 of Schedule 1 , in the case of an employee specified in column 1 of that Schedule; or

(c) the person holding a prescribed office, in the case of an employee employed in the Department responsible for the administration of this Act; or

(d) [Section 3 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] the Minister responsible for administering the provisions of the State Service Act 2000 which relate to the appointment of Heads of State Service Agencies, in the case of a Head of a State Service Agency; or

(e) the Minister responsible for administering the Act under which an employee is appointed, in any other case;

[Section 3 Amended by No. 49 of 2019, s. 4, Applied:18 Dec 2019]

[Section 3 Amended by No. 49 of 2019, s. 4, Applied:18 Dec 2019] relevant authority, in relation to an employee, means –

(a) the Minister who administers the Government department or State authority in which the employee is employed; or

(b) if there is no Minister referred to in paragraph (a) in respect of the employee and the employee is appointed under the Parliamentary Privilege Act 1898 , the prescribed authority for the employee; or

(c) if there is no person in paragraph (a) or (b) in relation to the employee, the Minister responsible for the administration of this Act;

[Section 3 Amended by No. 49 of 2019, s. 4, Applied:18 Dec 2019] relevant manager, in relation to an employee, means –

(a) if the employee is appointed under the Parliamentary Privilege Act 1898 , the prescribed authority for the employee; or

(b) in any other case, the Secretary of the Government department, or State authority, in which the employee is appointed;

resign means to cease employment before the age for retirement;

retire means to cease employment at or after the age for retirement;

State authority means –

(a) any person appointed by the Governor under any Act; or

(b) any body constituted or established under any Act –

to administer any department, business or undertaking on behalf of the State;

working day includes a rostered day off;

year means a period of 12 months.

3A.   Amendment to Schedule 1

[Section 3A Inserted by No. 10 of 2003, s. 5, Applied:16 Apr 2003]

(1)  The Governor may amend Schedule 1  –

(a) by omitting the name of any employee, class of employees or prescribed authority; or

(b) by inserting the name of any employee, class of employees or prescribed authority; or

(c) where the name of any employee, class of employees or prescribed authority is changed, by omitting the name of that employee, class of employees or prescribed authority and substituting the new name.

(2)  The Governor may, by order, omit Schedule 1 and substitute a Schedule containing in Column 1 the names of any employee or class of employees and containing in Column 2 the titles or other description of any prescribed authority.

4.   Salary

(1)  Salary includes any one or more of the following:

(a) an allowance specified in an industrial award, other than an allowance referred to in subsection (2) ;

(b) an allowance payable for duties an employee carries out relating to the employee's permanent position;

(c) an allowance that would, but for an employee being absent on long service leave, be payable to the employee for the whole period of that leave;

(d) any increment affecting the salary during that period;

(da) [Section 4 Subsection (1) amended by No. 49 of 2019, s. 5, Applied:18 Dec 2019] higher duties, or more responsible duties or relieving, allowances that –

(i) were payable to an employee in respect of duties performed by the employee immediately before a period of long service leave; and

(ii) would, but for the employee being absent on long service leave, be payable to the employee for the whole period of that leave as the duties that attract the allowance are resumed by the employee immediately on the completion of the leave;

(e) any other prescribed allowance.

(2)  Salary does not include –

(a) extra payment for overtime or shift work; or

(b) availability, stand-by or call back allowances; or

(c) [Section 4 Subsection (2) amended by No. 49 of 2019, s. 5, Applied:18 Dec 2019] .  .  .  .  .  .  .  .  

(d) supervision allowances; or

(e) travelling, meal or accommodation allowances; or

(f) site, danger and temporary locational allowances; or

(g) any other prescribed allowance.

5.   Non-application of Act

This Act does not apply to an employee who is –

(a) [Section 5 Amended by No. 49 of 2019, s. 6, Applied:18 Dec 2019] entitled to long service leave under the Construction Industry (Long Service) Act 1997 ; or

(b) entitled to long service leave under the Local Government (Building and Miscellaneous Provisions) Act 1993 ; or

(c) an employee of a State authority exempted from this Act pursuant to section 6 .

6.   Exemption from Act

The Minister may, by order notified in the Gazette, exempt a State authority from the provisions of this Act.

PART 2 - Entitlement to Long Service Leave

7.   Entitlement to long service leave

An employee who has completed at least 10 years of continuous employment is entitled to a period of long service leave calculated in accordance with this Part.

8.   Granting of long service leave

(1)  An employee who wishes to take long service leave is to submit an application to the relevant prescribed authority at least one month before the date on which the leave is proposed to commence.

(2)  An employee may request the relevant prescribed authority to accept an application for long service leave less than one month before the date on which the leave is proposed to commence if exceptional circumstances exist.

(3)  On receipt of an application, the relevant prescribed authority may –

(a) grant an employee any long service leave to which the employee is entitled; or

(b) grant an employee only part of any such long service leave; or

(c) refuse to grant any such long service leave.

(4)  A prescribed authority must grant or refuse to grant an application within one month after receiving the application.

(5)  A prescribed authority must not grant an employee a period of long service leave in excess of the period of leave to which the employee is entitled at the date on which the leave is to commence.

(6)  [Section 8 Subsection (6) amended by No. 57 of 2004, s. 4, Applied:01 Jan 2004] A prescribed authority must not grant long service leave for a period of less than 5 days unless it considers exceptional circumstances exist to justify a shorter period.

(7)  Any period of long service leave granted to an employee may be taken by that employee in one period or more than one period.

(8)  If a prescribed authority refuses to grant an employee part or all of any long service leave, it is to give the employee notice in writing of the reasons for that refusal.

(9)  If a prescribed authority refuses to grant an employee long service leave, it must grant the employee long service leave within 2 years after the date of the refusal for whichever of the following periods is the greater:

(a) at least half of the long service leave to which the employee is entitled; or

(b) [Section 8 Subsection (9) amended by No. 57 of 2004, s. 4, Applied:01 Jan 2004] 5 days.

9.   Employees previously employed by Commonwealth, &c.

(1)  [Section 9 Subsection (1) amended by No. 10 of 2003, s. 6, Applied:16 Apr 2003] An employee who–

(a) was employed by the Commonwealth or another State or a Territory of the Commonwealth; and

(b) became an employee within 3 months after ceasing to be so employed–

is entitled to be credited with up to 65 days of the long service leave the employee would have been entitled to or eligible for if the employee had not ceased to be so employed and if the employee has not received any payment in respect of that long service leave.

(2)  Any period of employment by the Commonwealth or another State or a Territory of the Commonwealth which is prescribed under a law of the Commonwealth or that State or Territory of the Commonwealth as being a continuous period of employment is to be treated as a continuous period of employment for the purposes of this Act.

(3)  Any period of long service leave granted to a person referred to in subsection (1) under a law of the Commonwealth or of another State or a Territory of the Commonwealth before the person became an employee is to be treated as a period of long service leave granted under this Act.

(4)  In this section,

employment by the Commonwealth or another State or a Territory of the Commonwealth includes employment with a body, organization or authority which is established under an Act of Parliament of the Commonwealth or other State or an ordinance of a Territory of the Commonwealth but excludes employment with a local government authority.

10.   Continuous employment

(1)  [Section 10 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The continuous employment of an employee is not interrupted if the employee takes –

(a) any period of long service leave; or

(b) [Section 10 Subsection (1) amended by No. 49 of 2019, s. 7, Applied:18 Dec 2019] any period of recreation leave or personal leave; or

(c) any other period of approved leave of absence; or

(d) [Section 10 Subsection (1) amended by No. 54 of 2016, s. 64, Applied:31 Mar 2017] any period of absence of up to 3 years from duty so long as during that absence the employee is in receipt of a pension under the Public Sector Superannuation Reform Act 2016 ; or

(e) any period of absence of up to 12 months from duty arising from redundancy or standing down so long as the employee is re-employed within that 12 months after being made redundant or stood down; or

(f) [Section 10 Subsection (1) amended by No. 54 of 2016, s. 64, Applied:31 Mar 2017] any period of absence of up to 12 months from duty because of ill-health so long as the employee is re-employed within that 12 months after ceasing employment and is not entitled to a pension under the Public Sector Superannuation Reform Act 2016 .

(2)  [Section 10 Subsection (2) amended by No. 10 of 2003, s. 7, Applied:16 Apr 2003] The continuous employment of an employee is not interrupted if the employee is appointed or transferred to another position as an employee so long as the employee commences duty in that position within a period of 3 months after being so appointed or transferred.

(3)  The continuous employment of an employee is interrupted if –

(a) the employee resigns or retires and is re-employed 3 months or more after resigning or retiring; or

(b) a period of 3 months or more occurs between periods of employment of that person.

(4)  [Section 10 Subsection (4) substituted by No. 10 of 2003, s. 7, Applied:16 Apr 2003] The continuous employment of an employee ceases on the day on which the employee is dismissed, resigns or retires.

(5)  A period of continuous employment of an employee includes any rostered day off taken by, or due to, the employee.

(6)  [Section 10 Subsection (6) inserted by No. 10 of 2003, s. 7, Applied:16 Apr 2003] Subsection (4) as substituted by the Long Service Leave (State Employees) Amendment Act 2003 is taken to have commenced on 1 May 2001.

11.   Calculation of period of continuous employment

(1)  [Section 11 Subsection (1) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] The calculation of a period of continuous employment of an employee includes employment as a full-time employee, part-time employee or both as a full-time employee and a part-time employee whether that employment occurred before or after the commencement of this Act.

(2)  [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] The calculation of a period of continuous employment of an employee is to include each of the following, if taken or occurring while he or she is an employee:

(a) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of recreation leave or long service leave taken by the employee;

(b) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of personal leave, with or without pay, taken by the employee because of illness or injury of the employee which is not caused by misconduct on the part of the employee;

(c) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of approved leave of absence taken by the employee for the purpose of serving as a member of any of Australia's defence forces or on a jury;

(d) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of paid maternity leave, not exceeding 70 days, to which the employee is entitled in accordance with the terms of the employee’s employment;

(da) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of paid adoption leave, not exceeding 70 days, to which the employee is entitled, in accordance with the terms of the employee’s employment, as the proposed primary care giver of the child in respect of whom the leave is taken;

(db) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of paid partner leave, not exceeding 5 days, to which the employee is entitled, in accordance with the terms of the employee’s employment, as the partner not identified as the primary care giver of the child in respect of whom the leave is taken;

(e) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any prescribed holidays to which the employee is entitled;

(f) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period during which the employee is the holder of a Government scholarship;

(g) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of paid leave taken by the employee on account of special circumstances;

(h) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of paid leave taken by the employee on account of bereavement;

(i) [Section 11 Subsection (2) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] any period of approved leave, other than personal leave taken by the employee due to illness or injury of the employee, taken by the employee without pay for an aggregate period not exceeding 20 days in each year.

(3)  [Section 11 Subsection (3) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] [Section 11 Subsection (3) amended by No. 68 of 1994, s. 3 and Sched. 1 ]The calculation of a period of continuous employment of an employee is not to include any period of –

(a) [Section 11 Subsection (3) amended by No. 10 of 2003, s. 8, Applied:16 Apr 2003] [Section 11 Subsection (3) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] leave, or absence, referred to in section 10(1) if that period is not referred to in subsection (2) ; or

(b) [Section 11 Subsection (3) amended by No. 54 of 2016, s. 65, Applied:31 Mar 2017] absence from duty if, during that absence, the employee is in receipt of a pension under the Public Sector Superannuation Reform Act 2016 ; or

(c) absence from duty where the employee–

(i) is made redundant or stood down; or

(ii) [Section 11 Subsection (3) amended by No. 54 of 2016, s. 65, Applied:31 Mar 2017] ceases employment because of ill-health and is not entitled to a pension under the Public Sector Superannuation Reform Act 2016 ; or

(d) [Section 11 Subsection (3) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] approved leave of absence, other than personal leave taken without pay by the employee due to illness or injury of the employee, taken by the employee without pay for an aggregate period exceeding 20 days in a year of employment under any Act or industrial award.

(4)  This section applies for the purposes of calculating –

(a) [Section 11 Subsection (4) amended by No. 49 of 2019, s. 8, Applied:18 Dec 2019] the period of continuous employment of an employee for the purposes of section 7 ; and

(b) the period of long service leave to which an employee is entitled to be credited under section 12 .

(5)  [Section 11 Subsection (5) inserted by No. 10 of 2003, s. 8, Applied:16 Apr 2003] The amendment of subsection (3) made by the Long Service Leave (State Employees) Amendment Act 2003 is taken to have commenced on 1 May 2001.

12.   Calculation of long service leave entitlement

[Section 12 Substituted by No. 49 of 2019, s. 9, Applied:18 Dec 2019]

(1)  An employee is entitled to be credited with a period of long service leave, calculated in accordance with subsection (2) at least once in each year of continuous employment of the employee, in respect of the period of continuous employment of the employee since the last time the employee was credited with a period of long service leave in respect of that employment.

(2)  A period of long service leave with which an employee is entitled to be credited under this section for a relevant period is to be calculated in accordance with the following formula:

where –

E means the total number of hours of long service leave with which an employee is entitled to be credited in respect of the relevant period;

A means the total number of hours for which the employee was continuously employed during the relevant period;

B means the total number of days that the employee would have been required to work in the relevant period if the employee had been a full-time employee, in the position held by the employee, for a year.

(3)  In this section –

relevant period, in relation to the calculation of an entitlement to be credited with a period of long service leave, means the period of continuous employment, not exceeding a year, in respect of which the entitlement is being calculated.

13.   Long service leave is in addition to other leave

(1)  Any period of long service leave to which an employee is entitled to be credited is in addition to any –

(a) [Section 13 Subsection (1) amended by No. 49 of 2019, s. 10, Applied:18 Dec 2019] recreation leave or personal leave to which the employee is entitled under any Act or industrial award; and

(b) prescribed holidays.

(2)  Subsection (1) (b) does not apply to an employee who –

(a) receives extra pay to cover prescribed holidays; or

(b) does shift work and receives additional recreation days in place of prescribed holidays.

(3)  If an employee is sick for a period of 3 or more days while on long service leave, that period is to be credited to the period of long service leave if –

(a) the employee is entitled to be paid for that period of sickness as though the employee were at work; and

(b) [Section 13 Subsection (3) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] a medical certificate from a medical practitioner is provided relating to that sickness.

(4)  An employee who is employed outside the State is to be treated as if the employee is employed in Hobart.

14.   

15.   Maximum amount of long service leave

[Section 15 Amended by No. 49 of 2019, s. 11, Applied:18 Dec 2019] [Section 15 Substituted by No. 10 of 2003, s. 10, Applied:16 Apr 2003] An employee is not entitled to be credited with a period of long service leave in excess of 100 days unless the relevant authority has given permission as provided by section 16 .

16.   Excess long service leave

(1)  [Section 16 Subsection (1) amended by No. 49 of 2019, s. 12, Applied:18 Dec 2019] An employee may apply to the relevant authority for permission to retain an entitlement to a period of long service leave in excess of 100 days.

(2)  [Section 16 Subsection (2) amended by No. 49 of 2019, s. 12, Applied:18 Dec 2019] The relevant authority may give permission under subsection (1) subject to such conditions as the Minister thinks fit.

17.   Unpaid leave for part-time employees

(1)  A part-time employee is entitled to a period of unpaid leave in addition to paid long service leave calculated under section 12 (3) .

(2)  Any period of unpaid leave may be subject to prescribed conditions.

(3)  [Section 17 Subsection (3) amended by No. 49 of 2019, s. 13, Applied:18 Dec 2019] Any period of unpaid leave in excess of 20 days is not to be taken into account in calculating the employee's entitlement to any personal leave, recreation leave, long service leave or other prescribed leave.

(4)  Any period of unpaid leave together with any long service leave calculated under section 12 (3) is not to exceed any period of long service leave to which the employee would have been entitled had the employee been a full-time employee.

PART 3 - Salary and Allowances

18.   Salary payable during long service leave

An employee who is granted a period of long service leave is entitled to a salary which would be payable had the employee not taken long service leave during that period.

19.   Payment of salary in advance

An employee who is granted a period of long service leave is to be paid in advance any salary payable for that period if the employee so requests.

20.   Allowances payable in certain cases

(1)  An employee or, if the employee dies, the employee's personal representative, is entitled to be paid an allowance calculated in accordance with subsection (2) if –

(a) the employee has completed at least 7 years but less than 10 years of continuous employment and –

(i) ceases employment because of ill-health; or

(ii) resigns because of domestic or other pressing necessity; or

(iii) retires; or

(iv) is made redundant; or

(v) the contract of employment is not renewed; or

(vi) is dismissed for any reason other than serious and wilful misconduct; or

(vii) dies; or

(b) the employee has completed 10 years or more of continuous employment and ceases employment or dies.

(2)  An allowance payable under this section is an allowance equal to the salary that would be payable for the period of long service leave to which the employee is entitled immediately before cessation of employment or death.

(3)  The payment of an allowance under this section is to be authorized by the prescribed authority.

PART 4 - Disputes and Appeals

21.   Disputes

(1)  [Section 21 Subsection (1) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] The relevant manager for an employee is to investigate any dispute in respect of the employee, in relation to any matter arising under this Act, including –

(a) an entitlement to long service leave or the payment of any allowance specified in section 20 ; or

(b) the refusal to grant all or part of a period of long service leave; or

(c) the commencement or termination date of continuous employment; or

(d) the length of employment; or

(e) [Section 21 Subsection (1) amended by No. 10 of 2003, s. 11, Applied:16 Apr 2003] [Section 21 Subsection (1) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] the calculation of a period of continuous employment; or

(f) an entitlement of a personal representative of an employee to any allowance specified in section 20 ; or

(g) [Section 21 Subsection (1) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] the length of employment or calculation of a period of continuous employment by the Commonwealth or another State or a Territory of the Commonwealth; or

(h) the salary to which an employee who is granted leave is entitled.

(2)  [Section 21 Subsection (2) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] If a dispute is not resolved as a result of an investigation by a relevant manager under this section, the relevant manager is to submit a report on the dispute to the President of the Commission.

(3)  On receipt of a report on a dispute submitted under subsection (2) , the President is to arrange for a Commissioner to hear and determine the dispute.

(4)  After hearing a dispute, a Commissioner may make any of the following orders:

(a) that the prescribed authority grant the period of long service leave requested;

(b) that the prescribed authority pay a specified allowance referred to in section 20 instead of granting the period of long service leave requested;

(c) [Section 21 Subsection (4) amended by No. 10 of 2003, s. 11, Applied:16 Apr 2003] .  .  .  .  .  .  .  .  

(d) [Section 21 Subsection (4) amended by No. 10 of 2003, s. 11, Applied:16 Apr 2003] .  .  .  .  .  .  .  .  

(e) [Section 21 Subsection (4) amended by No. 10 of 2003, s. 11, Applied:16 Apr 2003] .  .  .  .  .  .  .  .  

(f) that a long service leave record be amended to state a specific commencement or termination date;

(g) [Section 21 Subsection (4) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] that any specified period of leave of absence be included or excluded in calculating the period of continuous employment;

(h) that a personal representative is entitled to an allowance specified in section 20 ;

(i) that any specified period of employment by the Commonwealth or another State or a Territory of the Commonwealth be treated as a period of continuous employment under this Act;

(j) that the entitlement to salary during a period of long service leave includes or excludes any specified allowance.

(5)  [Section 21 Subsection (5) amended by No. 49 of 2019, s. 14, Applied:18 Dec 2019] A Commissioner is to cause a copy of an order to be served on the relevant manager for the employee and each party to the dispute.

(6)  If an appeal is made under section 22 , an order does not take effect until the appeal is determined or abandoned.

(7)  A prescribed authority must comply with an order made under this section.

22.   Appeals

(1)  A prescribed authority or employee who is aggrieved by an order of a Commissioner under section 21 may appeal within 21 days of service of the order to a Full Bench in a prescribed form.

(2)  An appeal is to be instituted, heard and determined as prescribed.

(3)  In determining an appeal, the Full Bench may –

(a) confirm the Commissioner's order; or

(b) revoke the Commissioner's order; or

(c) vary the Commissioner's order; or

(d) refer the matter to the Commissioner for reconsideration.

(4)  [Section 22 Subsection (4) amended by No. 49 of 2019, s. 15, Applied:18 Dec 2019] A Full Bench is to cause a copy of its decision to be served on the relevant manager for the employee and each party to the appeal.

(5)  The decision of a Full Bench is final.

23.   Representation

(1)  [Section 23 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] A person is not entitled to be represented by a practitioner at the hearing of a dispute under section 21 or the hearing of an appeal under section 22 .

(2)  [Section 23 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] If an officer or employee of an organization registered under Part V of the Industrial Relations Act 1984 is a practitioner, the officer or employee may represent a person at a hearing referred to in subsection (1) if the officer or employee is employed to perform functions that may be performed by a person other than a practitioner.

(3)  [Section 23 Subsection (3) substituted by No. 68 of 1994, s. 3 and Sched. 1 ]In this section –[Section 23 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008]

[Section 23 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] practitioner means an Australian legal practitioner.

PART 5 - Miscellaneous

24.   Powers of inspectors

(1)  For the purpose of ensuring that the provisions of this Act are complied with, an inspector may, at any reasonable time and with or without assistance, enter and remain in the premises of a State authority for a reasonable period.

(2)  If an inspector enters any premises of a State authority, the inspector may –

(a) make such inspections, examinations and inquiries as are necessary; and

(b) question, with respect to matters under this Act, the person in charge of any premises so entered or any person employed or engaged on or in those premises; and

(c) require the person apparently in charge of those premises to produce for inspection by the inspector any books, documents or other records relating to a long service leave record kept under section 26 .

(3)  It is not lawful for an inspector to enter and remain on premises and to exercise any power under subsection (2) without providing, when requested to do so, evidence of appointment as an inspector.

(4)  A person must not –

(a) prevent, obstruct, hinder or delay an inspector from exercising any powers under this section; or

(b) fail, without reasonable cause, to comply with a request of an inspector or to answer questions asked by an inspector made or asked under any such power if it is within the person's power to comply with the request or to answer the question; or

(c) give an answer to such a question knowing the answer to be false or misleading; or

(d) intentionally conceal, or attempt to conceal, a person from an inspector or prevent, or attempt to prevent, a person from appearing before, or being questioned by, an inspector for the purposes of this Act.

Penalty:  Fine not exceeding 5 penalty units.

25.   Delegation

(1)  A prescribed authority may, in writing –

(a) delegate any of its powers or functions other than this power of delegation; or

(b) revoke wholly or partly a delegation.

(2)  A delegation –

(a) may be made either generally or as otherwise provided by the instrument of delegation; and

(b) does not prevent the performance or exercise of a function or power by the prescribed authority.

(3)  A function or power performed or exercised by a delegate has the same effect as if performed or exercised by the prescribed authority.

26.   Records

[Section 26 Amended by No. 49 of 2019, s. 16, Applied:18 Dec 2019] A State authority is to keep a long service leave record in respect of each of its employees in such manner as the relevant manager for the employee determines.

27.   Act prevails

This Act prevails over any other Act relating to the eligibility of employees for, or the entitlement of employees to, long service leave except any Act relating to a State authority which under section 6 is exempt from the provisions of this Act.

28.   Contracting out prohibited

Any covenant, agreement or arrangement made on or after the commencement of this Act which annuls, excludes or varies the provisions of this Act is of no effect.

29.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

(3)  Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.

30.   Repeal

(1)  The Acts specified in Schedule 2 are repealed.

(2)  A reference in any enactment to the State Employees (Long-Service Leave) Act 1950 is a reference to the Long Service Leave (State Employees) Act 1994 .

31.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Industrial Relations and Training; and

(b) the Department responsible to that Minister in relation to the administration of this Act is the Department of Industrial Relations, Vocational Education and Training.

32.   Savings provision

Any right, entitlement, privilege, obligation or liability acquired, accrued or incurred under the Acts specified in Schedule 2 before the commencement of this Act continue to exist as if those Acts were not repealed.

33.   Transitional provisions on commencement of Long Service Leave (State Employees) Amendment Act 2019

[Section 33 Inserted by No. 49 of 2019, s. 17, Applied:18 Dec 2019]

(1)  Other than as specified in this section, the commencement of the Long Service Leave (State Employees) Amendment Act 2019 does not affect the validity of any of the following matters that occurred under this Act before the commencement of that Act:

(a) the calculation of a period of continuous employment;

(b) the crediting of a period of long service;

(c) the granting of long service leave.

(2)  If a new employee was credited with an entitlement to a period of long service leave, in accordance with this Act, before the commencement of the Long Service Leave (State Employees) Amendment Act 2019  –

(a) that person is taken to have been an employee, within the meaning of this Act, from the time when the period of long service leave was credited to the person under this Act; and

(b) the entitlement to the period of long service leave so credited is not invalid solely on the grounds that it was credited to a person who was not an employee, within the meaning of this Act, during the period of continuous employment in respect of which the leave was credited.

(3)  If a new employee was credited with a period of long service leave under another Act in respect of a period of continuous employment, or otherwise lawfully compensated in lieu of such a period of long service leave, that period of continuous employment is not a period of continuous employment for the purposes of calculating an entitlement to a period of long service leave under this Act.

(4)  In this section –

new employee means a person who –

(a) before the commencement of the Long Service Leave (State Employees) Amendment Act 2019 was not an employee within the meaning of this Act; and

(b) on and after the commencement of the Long Service Leave (State Employees) Amendment Act 2019 , is an employee by virtue of the amendments made, by that Act, to the definition of employee.

SCHEDULE 1 - Prescribed Authorities

Sections 3 and 3A

SCHEDULE 2 - Acts Repealed

Section 30