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Contract Cleaning Industry (Portable
ong Service Leave Scheme) Bill 2010 No , 2010 A Bill for An Act to establish a scheme for portability of long service leave in the contract cleaning industry; and for other purposes. Clause 1 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Contract Cleaning Industry (Portable Long Service 4 Leave Scheme) Act 2010. 5 2 Commencement 6 This Act commences on 1 July 2011. 7 3 Definitions 8 (1) In this Act: 9 approved form means in the form approved by the Corporation. 10 Chief Executive Officer means the Chief Executive Officer within the 11 meaning of the Long Service Corporation Act 2010. 12 cleaning work--see section 4. 13 Committee means the Contract Cleaning Industry Long Service Leave 14 Committee constituted by section 9. 15 contract cleaning industry means: 16 (a) in relation to New South Wales--the industry in which 17 employers provide cleaning work, and minor property 18 maintenance work that is incidental or peripheral to such cleaning 19 work, to other people through the provision of workers' services, 20 and 21 (b) in relation to a reciprocating State or Territory--the contract 22 cleaning industry within the meaning of the corresponding law of 23 the State or Territory. 24 contractor means a person (other than an employee) who: 25 (a) performs work for another person for fee or reward on the 26 person's own account, or 27 (b) is declared to be a contractor for the contract cleaning industry 28 under section 8. 29 Corporation means the Long Service Corporation constituted under the 30 Long Service Corporation Act 2010. 31 corresponding law means a law of another State or a Territory that 32 makes provision with respect to long service leave and that is declared 33 by the regulations to be a corresponding law. 34 day, in relation to a worker, means 24 hours or such other period as is 35 prescribed by the regulations as a day for a worker. 36 Page 2 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 3 Preliminary Part 1 employee--see section 5. 1 employer--see section 6. 2 employers register means the register referred to in section 11. 3 employer's registration day--see section 12. 4 engagement period for a registered worker--see section 33. 5 exercise a function includes perform a duty. 6 foundation worker--see section 21 (2) and (3). 7 function includes a power, authority or duty. 8 Fund means the Contract Cleaning Industry Long Service Leave Fund 9 maintained under the Long Service Corporation Act 2010. 10 levy means the long service leave levy imposed under Part 5. 11 long service leave formula--see section 57. 12 ordinary remuneration for a person means the amount paid or payable 13 to the person for cleaning work, other than any amounts for the 14 following: 15 (a) overtime, 16 (b) expenses incurred by the person, 17 (c) the use of materials, equipment or a motor vehicle provided by 18 the person. 19 premises includes the whole or any part of a building, structure or place, 20 whether built on or not. 21 reciprocal authority means the entity under a corresponding law that 22 administers the scheme of long service benefits established by that law. 23 reciprocating State or Territory means a State or Territory with which 24 a reciprocal agreement within the meaning of section 112 is in force. 25 recognised service, for a registered worker, means the total number of 26 days for all engagement periods entered in the workers register for the 27 worker. 28 registered employer means an employer who is registered as an 29 employer under Part 2. 30 registered worker means a person who is registered as a worker under 31 Part 2. 32 Note. A worker may be a contractor or an employee. 33 return period means: 34 (a) a 3-month period, ending at the end of 31 March, 30 June, 30 35 September or 31 December in any year, during which a worker 36 performs cleaning work, or 37 (b) such other period as may be prescribed by the regulations. 38 Page 3 Clause 4 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 1 Preliminary service, for a registered worker for the contract cleaning industry, 1 means service in the industry. 2 worker--see section 7. 3 workers register means the register referred to in section 13. 4 worker's registration day--see section 14. 5 (2) Notes included in this Act do not form part of this Act. 6 4 Meaning of "cleaning work" 7 (1) Cleaning work is: 8 (a) work that has, as its only or main component, the bringing of 9 premises into, or maintaining premises in, a clean condition, or 10 (b) work, or an activity, declared to be cleaning work under 11 section 8. 12 (2) Without limiting subsection (1) (a), work referred to in that paragraph 13 includes the collection of trolleys (other than trolley collection of a kind 14 described by the regulations) and hygiene and pollution control. 15 5 Meaning of "employee" 16 (1) A person is an employee for the contract cleaning industry if the person 17 is: 18 (a) employed by an employer for that industry, or 19 (b) declared to be an employee for that industry under section 8. 20 (2) In this section: 21 employed includes employed as: 22 (a) a full-time employee, or 23 (b) a part-time employee, or 24 (c) a casual employee. 25 6 Meaning of "employer" 26 (1) An employer for the contract cleaning industry is a person who: 27 (a) employs one or more persons to perform cleaning work in that 28 industry, or 29 (b) is declared to be an employer for that industry under section 8. 30 (2) The following are not employers for the purposes of subsection (1): 31 (a) the Commonwealth, 32 (b) the State, 33 (c) a local government authority, 34 Page 4 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 7 Preliminary Part 1 (d) a company whose only workers are directors, if each of the 1 directors participates in the management of the company or 2 shares its profits, 3 (e) a person to whom subsection (1) (a) applies who is excluded by 4 the regulations from being an employer. 5 7 Meaning of "worker" 6 (1) A worker for the contract cleaning industry is a person who: 7 (a) is engaged by an employer under a contract of service to perform 8 cleaning work in the industry, or 9 (b) is a contractor who performs cleaning work in the industry. 10 (2) A worker includes a person who is engaged both to perform cleaning 11 work and to supervise other workers in the contract cleaning industry, 12 whether or not the person is known as a supervisor, leading hand or 13 another title. 14 (3) However, worker does not include a person who performs work in the 15 contract cleaning industry: 16 (a) whose only or main duties are managerial or clerical, or 17 (b) under a contract of service with a partnership if the person is a 18 partner and participates in the management of the partnership or 19 shares the profits, or 20 (c) under a contract of service with the Commonwealth, the State or 21 a Territory or a local government authority, or 22 (d) under a contract, whether or not the contract is a contract of 23 service, with a corporation of which the person is a director, or 24 (e) under a contract, whether or not the contract is a contract of 25 service, with a trust of which the person is a trustee. 26 8 Declaration by Minister--coverage of Act 27 (1) The Minister may, by order published on the NSW legislation website, 28 declare that for this Act: 29 (a) a person is an employer for the contract cleaning industry, or 30 (b) a person is a contractor for that industry, or 31 (c) a person is an employee, or an employee of a stated employer, for 32 that industry, or 33 (d) work, or an activity, is cleaning work. 34 (2) Sections 40 (Notice of statutory rules to be tabled) and 35 41 (Disallowance of statutory rules) of the Interpretation Act 1987 36 Page 5 Clause 9 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 1 Preliminary apply to an order under this section in the same way as those sections 1 apply to statutory rules. 2 9 Constitution of Long Service Leave Committee 3 (1) There is constituted by this Act the Contract Cleaning Industry Long 4 Service Leave Committee. 5 (2) The Committee is to consist of the following members: 6 (a) the Chief Executive Officer or a nominee of the Chief Executive 7 Officer, 8 (b) 2 persons appointed by the Minister, on the nomination of Unions 9 NSW, to represent that body, 10 (c) 2 persons appointed by the Minister, on the nomination of the 11 Liquor, Hospitality, Miscellaneous Workers Union (NSW 12 Branch), to represent that body, 13 (d) 2 persons appointed by the Minister, on the nomination of the 14 Building Service Contractors Association, to represent that body, 15 (e) 2 persons appointed by the Minister, on the nomination of the 16 Australian Cleaning Contractors' Association, to represent that 17 body. 18 (3) The person referred to in subsection (2) (a) is to be the Chairperson of 19 the Committee. 20 (4) If a nomination referred to in subsection (2) (b), (c), (d) or (e) is not 21 made by a body within such time as the Minister allows, the Minister 22 may appoint a person the Minister considers suitable to represent that 23 body in place of the person required to be so nominated. 24 (5) Schedule 1 contains provisions relating to members of the Committee. 25 Page 6 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 10 Registration Part 2 Part 2 Registration 1 Division 1 The registers 2 10 Corporation must keep registers 3 (1) The Corporation must keep the following registers under this Act: 4 (a) an employers register, 5 (b) a workers register. 6 (2) Subject to this Act, the registers are to be kept in the form and manner, 7 and are to contain such particulars, as the Corporation determines. 8 11 Employers register 9 (1) The Corporation is to enter the following information in the employers 10 register in relation to a person it registers as an employer for the contract 11 cleaning industry: 12 (a) the employer's name, 13 (b) the employer's trading name (if any), 14 (c) the employer's ABN (if any), 15 (d) the address of the employer's principal place of business, 16 (e) if the employer is a corporation: 17 (i) the address of the corporation's registered office, and 18 (ii) the corporation's ACN, 19 (f) the employer's registration day, 20 (g) if the person is no longer an employer--the day the person 21 stopped being an employer. 22 (2) The Corporation may enter in the register any other information it 23 considers necessary for the administration of this Act. 24 12 Employer's registration day 25 For the purposes of section 11 (1) (f), the day on which a person 26 becomes a registered employer (the employer's registration day) is the 27 day on which the Corporation received the application for registration 28 under section 17. 29 13 Workers register 30 (1) The Corporation is to enter the following information (or so much of it 31 as it has or is reasonably able to obtain) in the workers register in 32 Page 7 Clause 14 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 2 Registration relation to a person it registers as a worker for the contract cleaning 1 industry: 2 (a) the worker's name (entered, in the case of a foundation worker, 3 as the name of a foundation worker), 4 (b) if the worker is an employee--each employer for whom the 5 employee works, 6 (c) if the worker is a contractor--the person's ABN (if any), 7 (d) the number of days of service with which the worker is credited 8 under this Act, 9 (e) the total ordinary remuneration of the worker for work performed 10 by the worker, 11 (f) the worker's entitlement to long service leave, 12 (g) details of the long service leave granted to, or taken by, the 13 worker, or payment instead of long service leave made to the 14 worker, under this Act or the Long Service Leave Act 1955, 15 (h) the worker's registration day, 16 (i) if the worker no longer performs cleaning work in the contract 17 cleaning industry--the day that he or she stopped performing 18 such work. 19 (2) The Corporation may enter in the register any other information it 20 considers necessary for the administration of this Act. 21 (3) The Corporation may, for the purposes of entering in the workers 22 register the information referred to in subsection (1) (e), rely on the 23 information contained in any return furnished under Part 4 or such other 24 information as the Corporation thinks fit. 25 14 Worker's registration day 26 (1) For the purposes of section 13 (1) (h), the day on which a person 27 becomes a registered worker (the worker's registration day) is: 28 (a) if the person applies for registration under section 22 and the 29 application is granted--the day on which the Corporation 30 receives the application, or 31 (b) if an employer of the person applies for registration of the person 32 under section 23 and the application is granted--the day on 33 which the Corporation receives the application, or 34 (c) if the Corporation receives other information indicating the 35 person is a worker as mentioned in section 25--the day the 36 Corporation receives the information. 37 (2) However, if the Corporation is satisfied the person was a worker for a 38 period before the worker's registration day, the Corporation may 39 Page 8 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 15 Registration Part 2 nominate an earlier day as the day on which the person became a 1 registered worker. 2 (3) The Corporation must not nominate a day: 3 (a) that is more than 2 full financial years before the person's 4 registration day, unless the Corporation is satisfied special 5 circumstances exist, and 6 (b) in any event--that is earlier than1 July 2011. 7 15 Inspection of registers 8 An employer, a registered worker, or a person acting on behalf of the 9 employer or registered worker, may inspect, and obtain a certified copy 10 of, an entry in the register that relates to the employer or worker. 11 Division 2 Registration of employers 12 16 Registration 13 The Corporation may register a person as an employer on application by 14 the person under section 17. 15 17 Application for registration by employers 16 (1) In this section: 17 prescribed period, in relation to an employer for the contract cleaning 18 industry, means the following: 19 (a) for a person who becomes an employer on or after the 20 commencement of this Act--one month after becoming an 21 employer, 22 (b) for a person who is an employer immediately before the 23 commencement of this Act--one month after that 24 commencement. 25 (2) An employer for the contract cleaning industry must apply to the 26 Corporation for registration as an employer not later than the end of: 27 (a) the prescribed period for the employer, or 28 (b) such additional time as the Corporation allows. 29 Maximum penalty: 50 penalty units. 30 (3) An application must be in the approved form. 31 (4) The approved form may require an employer: 32 (a) to state the following: 33 (i) any name under which the employer is or has been 34 engaged in the contract cleaning industry, 35 Page 9 Clause 18 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 2 Registration (ii) any business address of the employer, 1 (iii) any place a record mentioned in section 46 (Employers to 2 keep records) may be inspected during normal business 3 hours, and 4 (b) to give other information or produce documents the Corporation 5 considers are relevant to the administration of this Act. 6 Note. The Corporation may require an applicant to provide further 7 information or evidence--see section 98. 8 18 Dealing with applications for registration as an employer 9 The Corporation must: 10 (a) register a person who makes an application under section 17 as 11 an employer for the contract cleaning industry if satisfied the 12 person is an employer for that industry, or 13 (b) in any other case--refuse to register the person as an employer. 14 Note. See section 32 in relation to notification requirements concerning 15 registration decisions and section 77 with respect to appeals. 16 19 Certificate of registration for employers 17 (1) The Corporation must give each person registered as an employer for 18 the contract cleaning industry a certificate of registration that includes: 19 (a) the registration information mentioned in section 11 (Employers 20 register), and 21 (b) the employer's registration day for the person. 22 (2) If satisfied that an employer's certificate of registration has been stolen, 23 lost or destroyed, the Corporation must give the employer a replacement 24 certificate of registration. 25 (3) An employer's certificate of registration is evidence of the matters 26 stated in the certificate. 27 20 Registered employer to notify change of details 28 (1) If the details shown on a registered employer's certificate of registration 29 change, the employer must, not later than 7 days after the change, give 30 the Corporation written notice of the change. 31 Maximum penalty: 5 penalty units. 32 (2) The Corporation must give the employer an amended certificate of 33 registration. 34 Page 10 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 21 Registration Part 2 Division 3 Registration of workers 1 21 Registration 2 (1) The Corporation may register a person as a worker: 3 (a) on application by the person under section 22, or 4 (b) on application by the person's employer under section 23, or 5 (c) on the Corporation's own initiative under section 25. 6 (2) A person who is registered within 6 months after the commencement of 7 this Act (the foundation period) is to be entered on the register as a 8 foundation worker. 9 (3) In addition, the Corporation may enter a person who is registered 10 (whether on application or on the Corporation's own initiative) more 11 than 6 months after the commencement of this Act on the register as a 12 foundation worker if the Corporation is satisfied that there are 13 exceptional circumstances that warrant entry after the end of the 14 foundation period. 15 22 Application for registration by workers 16 (1) A person may apply to the Corporation for registration as a worker for 17 the contract cleaning industry. 18 Note. Workers who are registered within 6 months after the commencement of 19 the Act are entered on the register as foundation workers and credited with 365 20 days of service. 21 (2) An application under this section must be in the approved form. 22 Note. The Corporation may require the applicant to provide further information 23 or evidence--see section 99. 24 23 Application by employers for registration of employee 25 (1) This section applies if a person who is not a registered worker is 26 employed by an employer in the contract cleaning industry and does not 27 apply for registration under section 22 before the end of 3 months after 28 the day on which the person starts to work for the employer. 29 (2) The employer must apply to the Corporation for registration of the 30 employee as a worker for the contract cleaning industry within 14 days 31 after the end of the 3-month period. 32 Maximum penalty: 20 penalty units. 33 (3) The application must be in the approved form. 34 Note. The Corporation may require the applicant to provide further information 35 or evidence--see section 99. 36 Page 11 Clause 24 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 2 Registration 24 Dealing with applications for registration as registered worker 1 If an application is made under section 22 or 23 for registration of a 2 person as a worker for the contract cleaning industry, the Corporation 3 must: 4 (a) if satisfied that the person is a worker for the contract cleaning 5 industry (or is a worker for the contract cleaning industry who is 6 eligible to be entered on the register as a foundation worker)-- 7 register the person as a worker for the industry (or as a foundation 8 worker), or 9 (b) in any other case--refuse to register the person as a worker for 10 the industry. 11 Note. See section 32 in relation to notification requirements concerning 12 registration decisions and section 78 in relation to appeals against such 13 decisions. 14 25 Corporation may register worker without application 15 The Corporation may decide to register a person as a worker in the 16 contract cleaning industry if: 17 (a) the Corporation becomes aware of information (other than 18 because of an application under this Part) indicating that the 19 person is, or was, a worker for the industry, and 20 (b) the Corporation is satisfied that the person should be registered as 21 a worker for the industry. 22 Note. The Corporation must give notice of the registration to the 23 worker--see section 32. 24 26 Annual statements for workers 25 (1) The Corporation must, as soon as practicable after 31 July in each year, 26 place a statement on its website setting out the following information in 27 relation to each registered worker: 28 (a) the number of days of service, from the worker's registration day 29 to the end of the previous financial year, with which the worker 30 has been credited in the workers register, 31 (b) the number of days of service that the worker has been credited 32 with for the previous financial year, 33 (c) the total ordinary remuneration paid to the worker during the 34 previous financial year by a registered employer, 35 (d) if the worker is a contractor--the total amount paid by the 36 contractor under section 51 (Levy payments by registered 37 contractors) for the previous financial year. 38 Page 12 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 27 Registration Part 2 (2) The Corporation must ensure that the annual statement relating to a 1 registered worker referred to in subsection (1) may be readily accessed 2 by the worker. 3 (3) The Corporation must give a registered worker a written copy of the 4 annual statement relating to the worker if requested to do so by the 5 worker. 6 27 Registered worker to notify inaccuracies 7 If the details shown on an annual statement relating to a registered 8 worker under section 26 are inaccurate, the worker must, not later than 9 6 months after the statement is placed on the Corporation's website, 10 give the Corporation written notice of the correct details. 11 Division 4 Cancellation and suspension of registration 12 28 Cancellation of worker's registration 13 (1) The Corporation may at any time cancel the registration of a worker if 14 it is satisfied that the person concerned is not a worker and that the 15 person's application to become a registered worker should have been 16 refused. 17 (2) The Corporation must cancel the registration of a registered worker if 18 the person concerned has not been credited under this Act or a 19 corresponding law with at least one day's service for 4 consecutive 20 years. 21 (3) For the purposes of subsection (2), any day prescribed by the 22 regulations as a non-service day is to be treated as a day's service. 23 (4) The Corporation must also cancel the registration of a worker: 24 (a) on the making of any payment in accordance with section 63 25 (Entitlement to pro rata payment instead of leave in limited 26 circumstances) in respect of the worker, or 27 (b) at the request of the worker. 28 (5) The cancellation of the registration of a registered worker under 29 subsection (1) takes effect: 30 (a) on the expiration of the period of 42 days after the Corporation 31 notifies the registered worker of the cancellation, or 32 (b) if an appeal under section 80 is lodged against the cancellation 33 within that period--on the date the appeal is withdrawn or the 34 cancellation is confirmed. 35 Page 13 Clause 29 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 2 Registration (6) If the registration of a person as a worker is cancelled under 1 subsection (1) or (2): 2 (a) the person stops being a registered worker on the day the 3 registration is cancelled, and 4 (b) the person is not entitled to apply for, or to be paid an amount for 5 long service leave for, any days of service entered in the register 6 before the day the person stopped being a registered worker. 7 (7) However, subsection (6) (b) does not apply if the person would, but for 8 the person's ceasing to be registered, have been entitled to payment for 9 a period under section 63 (Entitlement to pro rata payment instead of 10 leave in limited circumstances). 11 (8) Regulations may be made for or with respect to the refund of levies on 12 cancellation of the registration of a worker. 13 Note. See section 32 in relation to notification requirements concerning 14 registration decisions and section 80 with respect to appeals against 15 cancellation of a worker's registration. 16 29 Suspension of worker's registration 17 (1) The Corporation may suspend the registration of a worker who has been 18 credited with at least 1825 days of service in the register of workers if 19 1460 non-service days have elapsed since the last date in respect of 20 which the worker was credited with service under this Act or under a 21 corresponding law. 22 (2) For the purposes of subsection (1), a non-service day is a day prescribed 23 by the regulations as a non-service day for the purposes of this section. 24 (3) The Corporation may restore a suspended registration at any time. 25 (4) While the registration of a worker is suspended: 26 (a) the worker is not to be credited in the workers register with any 27 service under this Act (being service during the period of 28 suspension), and 29 (b) the Corporation is not required to give any annual statement 30 under section 26 to the worker, and 31 (c) subject to sections 62 (Prohibition on payments in lieu of leave) 32 and 63: 33 (i) the worker is entitled to apply for and be paid any long 34 service payment in respect of any days' service then 35 credited to the worker in the workers register, and 36 (ii) if the worker has died (whether before or after the worker's 37 registration was suspended)--the personal representative 38 of the worker is entitled to apply for and be paid any long 39 Page 14 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 30 Registration Part 2 service payment in respect of any days' service then 1 credited to the worker in the workers register. 2 (5) An application under subsection (4) (c) (ii) may not be made more than 3 2 years after the date of suspension or the date of the worker's death 4 (whichever is the later). 5 (6) If a suspended registration is restored under subsection (3), any days' 6 service under this Act that are credited to the worker as at the date of the 7 suspension are to be restored. 8 30 Reinstatement of cancelled registration 9 (1) The registration of a person as a worker that has been cancelled in 10 accordance with section 28 may (if the person is eligible) be reinstated 11 at any time within 6 years after the date of cancellation if the 12 Corporation is satisfied that special circumstances exist warranting 13 reinstatement of the person's registration. 14 (2) The Corporation may reinstate the registration of a person as a worker 15 that has been cancelled under section 28 (2) if the Corporation is 16 satisfied that the person has been credited with a period of service under 17 a corresponding law within the period of 4 years ending on the day on 18 which the person's registration was cancelled. 19 (3) If a person's registration as a worker is reinstated under this section, this 20 Act applies in relation to the person as if the person's registration as a 21 worker had not been cancelled. 22 (4) This section does not affect any other right that a person whose 23 registration has been cancelled may have to again become a registered 24 worker. 25 31 Cancellation of employer's registration 26 (1) The Corporation may at any time cancel the registration of an employer 27 if it is satisfied that the person concerned is not an employer and that the 28 person's application to become a registered employer should have been 29 refused. 30 (2) If a registered employer stops engaging workers to perform cleaning 31 work in the contract cleaning industry, the registered employer may 32 apply to the Corporation for cancellation of registration. 33 (3) The application is to be in the approved form. 34 (4) The Corporation must cancel the registration if it is satisfied that the 35 person concerned has stopped engaging workers to perform cleaning 36 work in the contract cleaning industry. 37 Page 15 Clause 32 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 2 Registration (5) The person stops being a registered employer on the day the registration 1 is cancelled but must pay any levy payable under section 50 that was 2 due to the Corporation before that day. 3 Note. See section 32 in relation to notification requirements concerning 4 registration decisions and section 79 with respect to appeals. 5 Division 5 Notices 6 32 Notice of registration decisions 7 (1) The Corporation must, not later than 14 days after making a decision 8 under this Part, give written notice of its decision to: 9 (a) the applicant, or 10 (b) if it has decided to register a person under this Part on its own 11 initiative--the person registered, or 12 (c) if it has cancelled the registration of a person--the person. 13 (2) If the decision is to register a person as a worker, the notice must state 14 the worker's registration day. 15 (3) If the Corporation's decision is to refuse to register or to cancel the 16 registration of the person, the notice must include: 17 (a) an explanation for the decision, and 18 (b) a statement of the effect of section 77, 78, 79 or 80 (as the case 19 requires). 20 Page 16 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 33 Service credits Part 3 Part 3 Service credits 1 33 Meaning of "engagement period' 2 (1) An engagement period, for a worker who is an employee, is a period 3 that: 4 (a) starts on the day the person is engaged by an employer as a 5 worker, and 6 (b) stops on the day the person stops being engaged by an employer 7 as a worker. 8 (2) For the purposes of subsection (1), it is not relevant whether the 9 employer who engages the person as a worker is the employer who 10 stops engaging the person as a worker. 11 (3) An engagement period, for a worker who is a contractor, is a period 12 that: 13 (a) starts on the day the person performs cleaning work as a 14 contractor in the contract cleaning industry, and 15 (b) stops on the day the person stops performing cleaning work as a 16 contractor in the contract cleaning industry. 17 (4) An engagement period, for a worker, is also taken to include any day 18 that the person who is or was a worker did not perform cleaning work: 19 (a) because of incapacity for an injury for which the worker is 20 entitled to compensation under the Workers Compensation Act 21 1987, or 22 (b) if the worker is an employee--because the worker had been 23 dismissed by the person's employer to ensure that the person did 24 not take long service leave during the worker's employment. 25 34 Service credit 26 A registered worker is to be credited in the workers register with one 27 day's service for each day (including a day when the worker does not 28 perform cleaning work) in each engagement period. 29 Note. See section 37 in relation to service credits for days when no cleaning 30 work is performed. 31 35 Limitations on crediting service 32 (1) Except as provided by section 36, a worker must not be credited in the 33 workers register with a day's service unless the day is on or after the 34 worker's registration day. 35 Page 17 Clause 36 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 3 Service credits (2) A worker must not be credited in the workers register with more than 1 365 days of service in a financial year, even if a particular financial year 2 has 366 days. 3 (3) The days of service a worker must be credited for in the workers register 4 must be adjusted to ensure that the total number is not more than 5 365 days if: 6 (a) for a financial year--a registered worker would otherwise be 7 entitled to be credited with a number of days of service in the 8 workers register and a further number of days of service in a like 9 register or record kept under a corresponding law, and 10 (b) the total number of days is more than 365 days. 11 (4) The adjustment made under subsection (3) must be made when an 12 application is made under this Act or a corresponding law for payment 13 of long service leave for service that includes either or both of the 14 number of days of service mentioned in subsection (3) (a), or at any 15 other time the Corporation may decide. 16 36 Foundation worker service credit 17 A registered worker whose name is entered on the workers register as a 18 foundation worker is to be credited, on the day that the worker's name 19 is entered in the register, with 365 days of recognised service for the 20 purposes of this Act. 21 Note. Days credited as recognised service are not counted as service for the 22 purposes of the Long Service Leave Act 1955. 23 37 Service credit for breaks in engagement periods 24 (1) The Corporation may, on application by a registered worker, credit the 25 worker with one day's service in the workers register for each day of 26 any period not exceeding 3 months during which the Corporation is 27 satisfied that, because of circumstances of a kind described by the 28 regulations, the worker was not eligible to be credited with service 29 under section 34. 30 (2) The application is to be in the approved form. 31 38 Service credit--insolvent employer 32 (1) The Corporation may credit an employee who is registered as a worker 33 with one day's service in the workers register for each day during which 34 the person's employer is insolvent under administration, or an 35 externally-administered body corporate, within the meaning of the 36 Corporations Act 2001 of the Commonwealth, on application by the 37 worker or the administrator. 38 (2) The application is to be in the approved form. 39 Page 18 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 39 Returns and records Part 4 Part 4 Returns and records 1 Division 1 Returns 2 39 Returns by employers 3 (1) Within 14 days after the end of a return period, a person who is or was 4 an employer for the contract cleaning industry during the return period 5 must give to the Corporation a return in the approved form for the 6 period. 7 Maximum penalty: 40 penalty units. 8 (2) For each worker who is an employee of the person during the return 9 period, the return must include the following: 10 (a) the total amount of ordinary remuneration paid by the employer 11 to the worker during the period for cleaning work performed by 12 the worker, 13 (b) if the worker's engagement with the person began during the 14 period--the day on which the engagement period for the worker 15 began, 16 (c) if the worker's engagement with the person ended during the 17 period--the day on which the engagement period for the worker 18 ended, 19 (d) any other information required by the regulations. 20 Maximum penalty: 40 penalty units. 21 (3) If asked by the Corporation, the person must verify the information 22 contained in the return in the way asked by the Corporation including, 23 if asked, by statutory declaration. 24 Maximum penalty: 40 penalty units. 25 (4) An employer must give notice to the Corporation about a change to 26 information mentioned in subsection (2) within 14 days after the 27 change. 28 Maximum penalty: 40 penalty units. 29 (5) This section does not require a person to record any information in 30 respect of a worker who is an employee of the person who: 31 (a) is not a registered worker, and 32 (b) was not recorded as a worker in the person's return for the 33 previous return period, and 34 (c) performed work for the person for less than 5 days during the 35 current return period. 36 Page 19 Clause 40 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 4 Returns and records 40 Exemption from lodging return 1 (1) An employer may apply to the Corporation for an exemption from the 2 requirement to lodge a return under section 39 in relation to a person 3 who is, or was, engaged by the employer as a worker. 4 (2) The application must be in the approved form. 5 (3) The Corporation may grant the exemption if the Corporation is satisfied 6 that: 7 (a) the employer no longer engages the person to perform cleaning 8 work, or 9 (b) the employer complies with, or makes contributions to, a similar 10 scheme in another State or a Territory about long service leave 11 payments for persons performing cleaning work to that 12 established by this Act in relation to the person. 13 (4) The Corporation may, by notice in writing to the employer, revoke an 14 exemption granted under subsection (3) if the Corporation is satisfied 15 the exemption should no longer be given. 16 (5) If the Corporation refuses to grant an application for, or revokes, an 17 exemption, the Corporation must give the employer written notice of its 18 decision. 19 (6) The notice must include: 20 (a) an explanation for the decision, and 21 (b) a statement of the effect of section 81. 22 41 Returns by contractors who are registered workers 23 (1) A contractor who is, or was, a registered worker during a return period 24 must give the Corporation a return in the approved form containing the 25 required information not later than 14 days after the end of the return 26 period. 27 Maximum penalty: 20 penalty units. 28 (2) In this section: 29 required information, for a contractor for a return period, means: 30 (a) the number of days, or part days, during the return period on 31 which the contractor performed work, and 32 (b) the contractor's total ordinary remuneration for the work during 33 the return period, and 34 (c) any other information prescribed by the regulations. 35 Page 20 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 42 Returns and records Part 4 Division 2 Review of ordinary remuneration 1 42 Review of ordinary remuneration by Corporation 2 (1) This section applies if the Corporation considers that the total ordinary 3 remuneration for a worker stated in a return given to the Corporation 4 under section 39 or 41 for a return period may be insufficient or 5 excessive because of the nature of the work performed by the worker in 6 the return period. 7 (2) The Corporation must give the following people a notice advising them 8 that they may make a submission in relation to the ordinary 9 remuneration: 10 (a) for a return under section 39--the employer who gave the return 11 and the employee, 12 (b) for a return under section 41--the contractor. 13 (3) A submission must be made to the Corporation in writing within one 14 month after the notice is given. 15 (4) After considering a submission (if any) made in accordance with this 16 section, the Corporation may: 17 (a) decide that the total ordinary remuneration stated in the return for 18 the return period is reasonable, or 19 (b) fix another amount as the total ordinary remuneration of the 20 worker for the return period. 21 43 Notice of Corporation's decision on review of remuneration 22 (1) The Corporation must, not later than 14 days after it makes a decision 23 under section 42, give written notice of the decision to: 24 (a) for a decision relating to a return under section 39--the employer 25 who gave the return and the employee, or 26 (b) for a decision relating to a return under section 41--the 27 contractor. 28 (2) If the decision is to fix another amount under section 42 (4) (b), the 29 notice must include: 30 (a) the total ordinary remuneration fixed by the Corporation for the 31 return period, and 32 (b) a statement of the effect of sections 44 and 45. 33 44 Effect of variation of ordinary remuneration 34 (1) The following provisions apply if the Corporation fixes an amount 35 under section 42 (4) (b) as the total ordinary remuneration of a worker 36 for a return period (the varied amount) other than the amount stated for 37 Page 21 Clause 45 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 4 Returns and records that worker for that period by the worker's employer in a return under 1 section 39 (the returned amount): 2 (a) if the varied amount is more than the returned amount, the 3 employer must pay the Corporation the additional amount 4 payable under section 48 (Determination of levy--employers) 5 for the worker for that return period, 6 (b) if the varied amount is less than the returned amount, the 7 Corporation must: 8 (i) if asked by the employer to refund the overpayment of the 9 levy payable under section 50--refund the overpayment, 10 or 11 (ii) in any other case--credit the overpayment against future 12 amounts payable under that section by the employer. 13 (2) The following provisions apply if the Corporation fixes an amount 14 under section 42 (4) (b) as the total ordinary remuneration of a 15 contractor who is a registered worker for a return period (the varied 16 amount) other than the amount stated for that period by the contractor 17 in a return under section 41 (the returned amount): 18 (a) if the varied amount is more than the returned amount, the 19 contractor must pay the Corporation the additional amount 20 payable under section 49 (Determination of levy--contractors) 21 for the contractor for that return period, 22 (b) if the varied amount is less than the returned amount, the 23 Corporation must: 24 (i) if asked by the contractor to refund the overpayment of the 25 levy payable under section 51--refund the overpayment, 26 or 27 (ii) in any other case--credit the overpayment against future 28 amounts payable under that section by the contractor. 29 45 Variation of ordinary remuneration 30 An employer or contractor who is required by section 44 to pay an 31 additional amount must pay the amount not later than: 32 (a) one month after the day on which the person receives notice 33 under section 43 of the Corporation's decision, or 34 (b) the end of any additional time the Corporation allows. 35 Maximum penalty: 20 penalty units. 36 Page 22 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 46 Returns and records Part 4 Division 3 Records 1 46 Employers to keep records 2 (1) An employer for the contract cleaning industry must keep a written 3 record showing the relevant particulars for each employee who 4 performs cleaning work for the employer. 5 Maximum penalty: 20 penalty units. 6 (2) An employer must keep the written record for 7 years after the day the 7 employee stops being employed by the employer. 8 Maximum penalty: 20 penalty units. 9 (3) In this section: 10 relevant particulars means the following: 11 (a) the employee's name and date of birth, 12 (b) if the employee is a registered worker--the registration number 13 of the worker, 14 (c) the nature of the work carried out by the employee, 15 (d) the employees's ordinary remuneration for each return period, 16 (e) the number of days worked by the employee in each return 17 period, 18 (f) the date when the employee began service with the employer, 19 (g) long service leave granted to the employee, 20 (h) if the employee stops service with the employer--the date the 21 employee stops service, 22 (i) payment made instead of long service leave under section 63 23 (Entitlement to pro rata payment instead of leave in limited 24 circumstances) to an employee who stops service. 25 47 Registered contractors to keep records 26 (1) A contractor who is registered as a worker for the contract cleaning 27 industry must keep a written record of the following: 28 (a) the contractor's name and date of birth, 29 (b) the nature of the work performed by the contractor, 30 (c) when and for whom work is performed, 31 (d) the contractor's ordinary remuneration for each return period, 32 (e) the number of days worked by the contractor in each return 33 period. 34 Maximum penalty: 20 penalty units. 35 Page 23 Clause 47 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 4 Returns and records (2) The contractor must keep the written record for 7 years after the day the 1 record is made. 2 Maximum penalty: 20 penalty units. 3 Page 24 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 48
ong service leave levy Part 5 Part 5 Long service leave levy 1 48 Determination of levy--employers 2 (1) The amount of levy payable by each employer for the contract cleaning 3 industry on the ordinary remuneration for each worker engaged by the 4 employer to perform cleaning work is the percentage of the employee's 5 ordinary remuneration determined by the Minister from time to time by 6 order published on the NSW legislation website. 7 (2) The Corporation must, from time to time, recommend in writing to the 8 Minister the levy that should be payable by employers. 9 (3) Before making an order, the Minister must have regard to any 10 recommendation made under subsection (2), but need not follow it. 11 (4) Sections 40 (Notice of statutory rules to be tabled) and 41 12 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to 13 an order under this section in the same way as those sections apply to 14 statutory rules. 15 49 Determination of levy--contractors 16 (1) The amount of levy payable by each contractor who is registered as a 17 worker for the contract cleaning industry is the percentage of the 18 contractor's ordinary remuneration determined by the Minister from 19 time to time by order published on the NSW legislation website. 20 (2) The Corporation must, from time to time, recommend in writing to the 21 Minister the levy that should be payable by contractors who are 22 registered workers for the contract cleaning industry. 23 (3) Before making an order, the Minister must have regard to any 24 recommendation made under subsection (2), but need not follow it. 25 (4) Sections 40 (Notice of statutory rules to be tabled) and 41 26 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to 27 an order under this section in the same way as those sections apply to 28 statutory rules. 29 50 Levy payments by employers 30 A person who is, or was, an employer for the contract cleaning industry 31 during a return period must, when the person gives the Corporation a 32 return under section 39, pay to the Corporation the levy payable under 33 section 48 for the return period. 34 Maximum penalty: 20 penalty units. 35 Page 25 Clause 51 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 5 Long service leave levy 51 Levy payments by registered contractors 1 A person who is, or was, a contractor registered as a worker for the 2 contract cleaning industry during a return period must, when the person 3 gives the Corporation a return under section 41, pay to the Corporation 4 the levy payable under section 49 for the return period. 5 52 Interest on, and extension of time for payment, of levy 6 (1) A levy amount that is not paid at or before the time it is due bears 7 compound interest at the prescribed rate. 8 (2) Interest forms part of, and may be recovered as, unpaid levy. 9 (3) The Corporation may, if it considers that special circumstances warrant 10 it doing so in any particular case, direct: 11 (a) that the time for payment of all or part of a levy amount be 12 changed to a later time specified in the direction, or 13 (b) that the amount of any interest payable under subsection (1) be 14 waived or reduced by an amount specified in the direction. 15 (4) Subsection (3) has effect despite sections 50 and 51. 16 (5) In this section prescribed rate means: 17 (a) except as provided by paragraph (b)--2% per calendar month, or 18 part of a calendar month, or 19 (b) such other rate as is prescribed by the regulations. 20 Note. See section 82 with respect to appeals. 21 53 Assessment of unpaid levy 22 (1) If it appears to the Corporation that a levy amount has not been fully 23 paid, the Corporation may make an assessment of the amount owing. 24 (2) The Corporation must give a notice of the assessment to the person to 25 whom the assessment relates. 26 (3) The notice must include: 27 (a) an explanation for the decision, and 28 (b) a statement of the effect of section 83. 29 54 Authorised agents for collection of levies 30 (1) The Corporation may enter into agreements with agents appointed by it 31 for the collection of long service levies. 32 (2) Any such agreement may provide for the payment out of the Fund of 33 remuneration for the authorised agent. 34 Page 26 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 55
ong service leave Part 6 Part 6 Long service leave 1 55 Long service leave 2 A registered worker for the contract cleaning industry is entitled to 3 leave in accordance with this Part. 4 56 Years of recognised service 5 A registered worker for the contract cleaning industry is taken to have 6 completed a year of recognised service for each 365 days of recognised 7 service. 8 57 Long service leave formula--contract cleaning industry 9 The following is the long service leave formula for the contract 10 cleaning industry used under this Part for working out entitlements to 11 long service leave: 12 RS W = 0.8667 � -------- - 365 where: 13 RS means the registered worker's number of days of recognised service 14 to which the long service leave entitlement relates. 15 W means the number of weeks of long service leave held by the 16 registered worker. 17 58 Amount of leave--contract cleaning industry 18 (1) A registered worker for the contract cleaning industry who has 19 3650 days or more of recognised service completed after the 20 commencement of this Act is entitled to 8.67 weeks of long service 21 leave under this Act. 22 Note. Payment for leave under this Act is made by the Corporation--see 23 section 60. 24 (2) A registered worker for the contract cleaning industry who completes a 25 further 1825 days of additional service after the worker last became 26 entitled to long service leave under this Act: 27 (a) is entitled under this Act to 4.33 weeks of long service leave for 28 the additional days of service if they are credited in the workers 29 register, and 30 (b) to a further 4.33 weeks of long service leave under this Act for 31 each subsequent further 1825 days of additional service that the 32 worker completes and that is so credited. 33 (3) A worker for the contract cleaning industry: 34 Page 27 Clause 59 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 6 Long service leave (a) who before the commencement of this Act had accrued an 1 entitlement, or after the commencement becomes entitled, to long 2 service leave under the Long Service Leave Act 1955 (the 1955 3 Act) but who has not accrued any entitlement to long service 4 leave with any employer under this Act, and 5 (b) who after the commencement of this Act, becomes a registered 6 worker and completes a further 1825 days of additional service in 7 the industry after last becoming entitled to long service leave 8 under the 1955 Act, 9 is entitled under this Act to 4.33 weeks of long service leave for the 10 additional days of service if the worker is credited with the additional 11 days of service in the workers register and to a further 4.33 weeks of 12 long service leave for each subsequent further 1825 days of additional 13 service that the worker completes and that is so credited. 14 59 Grant of leave by employers--contract cleaning industry 15 (1) The employer of a registered worker for the contract cleaning industry 16 is guilty of an offence if: 17 (a) the worker becomes entitled to long service leave under this Act, 18 and 19 (b) the employer does not grant the worker the long service leave 20 before the end of the prescribed period. 21 Maximum penalty: 50 penalty units. 22 (2) Long service leave must not be granted for a period of less than 2 weeks. 23 (3) In this section: 24 prescribed period, for long service leave to which a registered worker 25 engaged by an employer for the contract cleaning industry is entitled, 26 means: 27 (a) 6 months after the day on which the worker becomes entitled to 28 the leave under this Act, or 29 (b) if the Corporation has allowed (on application by the employer or 30 the worker) a period longer than 6 months--the period allowed 31 by the Corporation, or 32 (c) if the employer and worker agree on a period longer than 33 6 months and less than 5 years--the period agreed. 34 (4) If an employer and a worker agree on a prescribed period as referred to 35 in paragraph (c) of the definition of prescribed period in subsection (3), 36 the employer must give written notice to the Corporation of the agreed 37 period within 7 days after the agreement is reached. 38 Page 28 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 60
ong service leave Part 6 60 Payments for leave 1 (1) A registered worker who has accrued long service leave under this Act 2 may apply to the Corporation for payment for the leave. 3 (2) The application must be in the approved form. 4 (3) The Corporation may require an applicant to provide such documentary 5 or other evidence (including a statutory declaration) as the Corporation 6 may require to deal with the application. 7 (4) If the Corporation is satisfied that the applicant is entitled to long 8 service leave under this Act, the Corporation must approve the 9 application and pay to the applicant the amount payable under 10 section 66 or 67 (as the case requires) as soon as practicable after the 11 application is made. 12 61 Long service leave not payable if payment previously made 13 (1) A registered worker is not entitled to be paid for a day's service that is 14 credited to the worker in the workers register if payment for the 15 entitlement has already been made under this or another Act, or an 16 award. 17 (2) In this section: 18 award means an award, agreement or industrial instrument (under a law 19 of the State or of the Commonwealth) providing for payment of workers 20 performing cleaning work in the contract cleaning industry. 21 62 Prohibition on payments in lieu of leave 22 Except as provided by section 64, a registered worker must not be paid 23 any amount instead of long service leave. 24 63 Entitlement to pro rata payment instead of leave in limited 25 circumstances 26 (1) This section applies to a registered worker for the contract cleaning 27 industry who has 5 years of recognised service if: 28 (a) the worker has permanently left the industry, and 29 (b) 20 weeks have passed since the day on which the worker 30 permanently left the industry, and 31 (c) the worker has not been credited with service in the workers 32 register for any of the days in the 20-week period. 33 (2) If the Corporation is satisfied that this section applies to the worker, the 34 worker is entitled to payment instead of long service leave for the 35 number of weeks of long service leave worked out in accordance with 36 the long service leave formula. 37 Page 29 Clause 64 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 6 Long service leave 64 Pro rata payments instead of leave 1 (1) If a registered worker is entitled to payment instead of long service 2 leave under section 63, the worker may apply to the Corporation for the 3 payment. 4 (2) If a registered worker has died and, immediately before the death, the 5 registered worker had 5 years of recognised service, the registered 6 worker's personal representative may apply to the Corporation for 7 payment of the entitlement. 8 (3) An application under this section must be in the approved form. 9 (4) In this section, personal representative, in relation to a payment in 10 respect of a person who has died, means: 11 (a) in the case of a person who died wholly or partially intestate-- 12 any person who appears to the Corporation to be entitled to obtain 13 a grant of letters of administration of the estate of the person, and 14 (b) in the case of a person who died testate--any person who appears 15 to the Corporation to be entitled to receive the relevant payment 16 under the will of the person. 17 65 How are leave entitlements to be worked out? 18 (1) For the purposes of sections 60 (Payments for leave) and 64 (Pro rata 19 payments instead of leave), the amount payable to a registered worker 20 for, or instead of, long service leave is: 21 (a) for any part of the entitlement to long service leave accrued as an 22 employee--the amount worked out in section 66, and 23 (b) for any part of the entitlement to long service leave accrued as a 24 contractor--the amount worked out in accordance with 25 section 67. 26 (2) For the purposes of subsection (1): 27 (a) long service leave must be taken in the reverse order in which it 28 is accrued, and 29 (b) if pro rata payment instead of leave is being made--the payment 30 is made in relation to the leave in the order in which it is accrued. 31 66 Leave payments to employee for service as a registered worker 32 (1) For the purposes of section 60, the amount payable to an employee for 33 long service leave for service accrued as a registered worker is the 34 amount worked out using the following formula: 35 D 0.8667 � -------- � R - 365 Page 30 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 67
ong service leave Part 6 (2) In this section: 1 D means the number of days of service credited to the registered worker 2 in the workers register to which the amount payable relates. 3 designated day means: 4 (a) if the registered worker is taking long service leave--the day the 5 leave begins, and 6 (b) if the registered worker is being paid pro rata instead of taking 7 long service leave--the day the application for payment is 8 approved. 9 R is the highest of the weekly averages of the ordinary remuneration 10 received by the registered worker during each of the following periods 11 that applies to the worker: 12 (a) the most recent 2 quarters of service as a registered worker before 13 the designated day, 14 (b) the most recent 4 quarters of service as a registered worker before 15 the designated day, 16 (c) the most recent 20 quarters of service as a registered worker 17 before the designated day, 18 (d) if relevant--the most recent 40 quarters of service as a registered 19 worker before the designated day. 20 Example--"R" Henry has worked in the contract cleaning industry for 7 years. 21 The periods in paragraphs (a), (b) and (c) apply to Henry because he has 22 completed more than 20 return periods (ie 1825 days or 5 years), but less than 23 40 return periods (ie 3650 days or 10 years), of relevant service. 24 Henry's average weekly income for the 2 return periods before the designated 25 day is $283. His weekly averages for the 4 and 20 return periods before the 26 designated day are $427 and $375, respectively. Accordingly "R" is $427 27 because it is the highest of the weekly averages. 28 67 Leave payments to a contractor for service as a registered worker 29 (1) For the purposes of section 60, the amount payable to a contractor who 30 is a registered worker for long service leave for service accrued as a 31 registered worker is the total of the following for the service: 32 (a) amounts paid by the contractor to the Corporation under 33 section 51 (Levy payments by registered contractors), 34 (b) interest at the determined rate worked out from the date of receipt 35 of each amount paid under that section until the designated day 36 for the leave. 37 (2) The Corporation must determine an interim rate of interest from time to 38 time before the determination of the rate under subsection (1) (b). 39 Page 31 Clause 68 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 6 Long service leave (3) The determined rate of interest must: 1 (a) be worked out after the end of each financial year for the previous 2 financial year, 3 (b) take into account the expenses incurred in administering the 4 Corporation, 5 (c) be at least 75% of the rate of interest, expressed as a percentage, 6 earned by the Corporation and worked out in accordance with the 7 regulations. 8 (4) In this section: 9 designated day means: 10 (a) if the worker is taking long service leave--the day the leave 11 begins, and 12 (b) if the registered worker is being paid pro rata instead of taking 13 long service leave--the day the Corporation approves the 14 application for payment. 15 68 Deemed minimum and maximum rates of pay 16 (1) Despite section 66, the regulations may make provision for the 17 determination of minimum and maximum amounts for R for the 18 purposes of the formula in that section. 19 (2) The Minister is to consult with the Committee before recommending the 20 making of a regulation under this section. 21 (3) The Committee is to advise and make recommendations to the Minister 22 on the operation of, and any amendment to or repeal of, any regulation 23 made under this section. 24 (4) If an amount of a long service payment to a worker under section 66 or 25 67 is, because of the operation of a regulation made under this section, 26 less than the amount it would have been in the absence of the regulation, 27 the Corporation is to notify the worker in writing of that fact and give 28 an explanation of the operation of the regulation. 29 Note. See section 84 with respect to appeals. 30 69 Public holidays not to count as leave 31 A period of long service leave taken by a registered worker is increased 32 by one day for each public holiday that falls during the period of leave. 33 70 Corporation may pay if employer insolvent 34 (1) This section applies if: 35 (a) the employer of a registered worker is or becomes insolvent 36 under administration, or an externally-administered body 37 Page 32 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 71
ong service leave Part 6 corporate, within the meaning of the Corporations Act 2001 of 1 the Commonwealth, and 2 (b) the worker has an entitlement to long service leave under this 3 Act. 4 (2) The Corporation may pay to the worker, or the worker's personal 5 representative, the difference between: 6 (a) the amount of the worker's long service leave entitlement under 7 this Act, and 8 (b) an amount the worker or the worker's personal representative has 9 received from or on behalf of the employer for the worker's long 10 service leave entitlement under this Act. 11 71 Payment may be deferred 12 (1) A person who applies for a payment for a long service leave entitlement 13 may ask the Corporation to defer payment. 14 (2) The Corporation may defer the payment for a period agreed between the 15 person and the Corporation. 16 72 Corporation's liability confined to long service leave 17 Despite the Corporation having paid, or paying, or being liable to pay, 18 an amount for a long service leave entitlement under this Act to a 19 registered worker, the Corporation is not: 20 (a) an employer of the registered worker, or 21 (b) a person in a contractual relationship with the registered worker. 22 Page 33 Clause 73 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 7 Appeals to Committee Part 7 Appeals to Committee 1 Division 1 General 2 73 Appeals--general provisions 3 (1) An appeal under this Act is to be made: 4 (a) except as provided by paragraph (b)--within 21 days after the 5 appellant is notified of the decision appealed against, or 6 (b) within such other time as may be prescribed by the regulations in 7 respect of the appeal. 8 (2) The manner of making and the procedure for hearing and determining 9 an appeal under this Act is, subject to the regulations, to be as 10 determined by the Committee. 11 (3) The Committee may at any time refer the matter the subject of an appeal 12 under this Act to the Corporation for reconsideration. 13 (4) The determination of the Committee in respect of an appeal under this 14 Act is taken to be the final decision of the Corporation and must be 15 given effect to by the Corporation. 16 (5) Despite subsection (4), in proceedings in any court a plea of issue 17 estoppel is not available in respect of an issue decided by the 18 Committee. 19 74 Hearing and determination of appeals by 2 or more members 20 (1) If the Committee in any particular case or class of cases so determines, 21 an appeal under this Act may be heard or may be heard and determined 22 by 2 or more members of the Committee appointed by the Committee 23 for the purpose. 24 (2) If an appeal is heard but not determined by 2 or more members of the 25 Committee, the determination of the appeal must be made by the 26 Committee at a meeting at which a quorum is present. 27 (3) If an appeal is heard and determined by 2 or more members of the 28 Committee, the determination of the appeal is taken to have been made 29 by the Committee. 30 75 Notice of appeal decisions 31 The Committee must give the appellant written notice of its decision on 32 an appeal under this Act not later than 14 days after the day on which 33 the decision is made. 34 Page 34 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 76 Appeals to Committee Part 7 76 Personal representative of deceased person may appeal on person's 1 behalf 2 (1) A reference in Division 2 to a person who has an appeal right under that 3 Division includes, where the person has died, the person's personal 4 representative acting on behalf of the person. 5 (2) In this section, personal representative, in relation to a person who has 6 died, means: 7 (a) in the case of a person who died wholly or partially intestate-- 8 any person who appears to the Committee to be entitled to obtain 9 a grant of letters of administration of the estate of the person, and 10 (b) in the case of a person who died testate--any person who appears 11 to the Committee to be entitled to receive the relevant payment 12 under the will of the person. 13 Division 2 Rights of appeal 14 77 Appeals against refusal to register as employer 15 (1) This section applies if the Corporation refuses to register a person as an 16 employer under section 18 (Dealing with applications for registration as 17 employer). 18 (2) The applicant for registration may appeal to the Committee against the 19 Corporation's decision. 20 (3) If an appeal is made, the Committee must: 21 (a) if satisfied that the person to whom the application relates is an 22 employer for the contract cleaning industry--direct the 23 Corporation to register the person as an employer for the 24 industry, or 25 (b) in any other case--confirm the Corporation's decision. 26 78 Appeals against refusal to register as registered worker 27 (1) This section applies if the Corporation refuses to register a person as a 28 worker under section 24 (Dealing with applications for registration as 29 registered worker). 30 (2) The applicant for registration may appeal to the Committee against the 31 Corporation's decision. 32 (3) If an appeal is made, the Committee must: 33 (a) if satisfied that the person to whom the application relates is a 34 worker for the contract cleaning industry--direct the Corporation 35 to register the person as a worker for the industry, or 36 (b) in any other case--confirm the Corporation's decision. 37 Page 35 Clause 79 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 7 Appeals to Committee 79 Appeal against cancellation of employer's registration 1 (1) A person may appeal to the Committee against a decision of the 2 Corporation under section 31 to cancel the person's registration as an 3 employer. 4 (2) The Committee may, in determining an appeal, confirm the cancellation 5 or: 6 (a) in the case of a cancellation under section 31 (1)--quash the 7 decision of the Corporation if satisfied that the person concerned 8 is an employer and that the person's application to become a 9 registered employer was approved in accordance with this Act, or 10 (b) in the case of a cancellation under section 31 (4)--quash the 11 decision of the Corporation if satisfied that the person concerned 12 has not stopped engaging workers to perform cleaning work in 13 the contract cleaning industry. 14 80 Appeal against cancellation of worker's registration 15 (1) A person may appeal to the Committee against a decision of the 16 Corporation under section 28 to cancel the person's registration as a 17 worker (otherwise than as authorised by section 28 (4)). 18 (2) The Committee may, in determining an appeal, confirm the cancellation 19 or: 20 (a) in the case of a cancellation under section 28 (1)--quash the 21 decision of the Corporation if satisfied that the person concerned 22 is a worker and that the person's application to become a 23 registered worker was approved in accordance with this Act, or 24 (b) in the case of a cancellation under section 28 (2)--quash the 25 decision of the Corporation if satisfied that the registered worker 26 was entitled under this Act to be credited with service in the 27 workers register during the period of 4 years immediately 28 preceding the cancellation. 29 81 Appeals against refusal to grant exemption or revocation of exemption 30 (1) This section applies if the Corporation refuses to grant an exemption to 31 an employer, or revokes an exemption granted to an employer, under 32 section 40 (Exemption from lodging return). 33 (2) The employer may appeal to the Committee against the Corporation's 34 decision. 35 (3) If an appeal is made, the Committee must: 36 (a) if satisfied that the exemption should be granted or should not 37 have been revoked--direct the Corporation to grant or reinstate 38 the exemption (as the case requires), or 39 Page 36 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 82 Appeals to Committee Part 7 (b) in any other case--confirm the Corporation's decision. 1 82 Appeal in relation to payment of interest on long service levies etc 2 (1) This section applies if the Corporation gives, or refuse to give, a 3 direction under section 52 (3). 4 (2) A person who is aggrieved by the Corporation's decision may appeal to 5 the Committee for a review of the matter. 6 (3) Without affecting the generality of section 73, notice of appeal under 7 subsection (2) must: 8 (a) specify why the decision of the Corporation with respect to the 9 direction or the refusal to give the direction is unreasonable, 10 having regard to the circumstances notified to the Corporation at 11 the time the decision was made, and 12 (b) be accompanied by a statutory declaration verifying the 13 particulars set out in the application. 14 (4) If an appeal is made, the Committee must: 15 (a) confirm the decision of the Corporation, or 16 (b) if it considers that the decision of the Corporation is unreasonable 17 having regard to the circumstances notified to the Corporation at 18 the time the decision was made--give such directions to the 19 Corporation with respect to the matter as the Committee 20 considers appropriate. 21 83 Appeals against levy assessments 22 (1) A person who is aggrieved by a decision of the Corporation in 23 connection with an assessment under section 53 may appeal to the 24 Committee for a review of the matter. 25 (2) The Committee may, in determining an appeal, confirm the decision of 26 the Corporation or quash the decision of the Corporation. 27 84 Appeal against limitation of long service payment by operation of 28 deemed minimum and maximum rates of pay 29 (1) A person who has received a notification under section 68 and is 30 dissatisfied with the calculation of the long service payment may appeal 31 to the Committee. 32 (2) The Committee, in determining the appeal, may confirm the calculation 33 of the long service payment or set it aside and make a new calculation 34 in substitution for that calculation. 35 Page 37 Clause 85 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 8 Enforcement Part 8 Enforcement 1 Division 1 Authorisation and identification of inspectors 2 85 Definition 3 In this Part: 4 inspector means a person authorised by the Corporation for the 5 purposes of this Part. 6 86 Authorisation of inspectors 7 (1) The Corporation may authorise any person, or persons included in a 8 class of persons, to be an inspector or inspectors for the purposes of this 9 Part. 10 (2) The Corporation may, in and by the instrument authorising a person to 11 be an inspector, limit the functions that the inspector may exercise under 12 this Part. 13 (3) An inspector is, to the extent to which the inspector is exercising 14 functions as an inspector under this Part, subject to the control and 15 direction of the Corporation. 16 87 Identification of inspectors 17 (1) The Corporation is to cause each inspector to be issued with a means of 18 identification in the form approved by the Corporation. 19 (2) In the course of exercising the functions of an inspector under this Part, 20 the inspector must, if requested to do so by any person affected by the 21 exercise of any such function, produce the inspector's identification for 22 inspection by the person unless to do so would defeat the purpose for 23 which the functions are to be exercised. 24 Division 2 Powers of entry and inspection 25 88 Power to enter premises 26 (1) An inspector may enter any premises at any time for the following 27 purposes: 28 (a) determining whether any workers in the contract cleaning 29 industry are employed or engaged there, 30 (b) determining whether there has been compliance with, or a 31 contravention of, this Act or the regulations. 32 (2) Entry may be effected under this Act by an inspector with such 33 assistance as the inspector considers necessary and with the use of 34 reasonable force. 35 Page 38 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 89 Enforcement Part 8 89 Entry into residential premises only with permission or warrant 1 This Division does not empower an inspector to enter any part of 2 premises used only for residential purposes without the permission of 3 the occupier or under the authority of a search warrant under section 90. 4 90 Search warrants 5 (1) An inspector may apply to an authorised officer for the issue of a search 6 warrant if the inspector believes on reasonable grounds that: 7 (a) a provision of this Act or the regulations is being or has been 8 contravened at any premises, or 9 (b) there is in or on any premises any matter or a thing that is 10 connected with an offence under this Act or the regulations. 11 (2) An authorised officer to whom such an application is made may, if 12 satisfied that there are reasonable grounds for doing so, issue a search 13 warrant authorising an inspector named in the warrant: 14 (a) to enter the premises, and 15 (b) to exercise any function of an inspector under this Division. 16 (3) Division 4 of Part 5 of the Law Enforcement (Powers and 17 Responsibilities) Act 2002 applies to a search warrant issued under this 18 section. 19 (4) In this section: 20 authorised officer has the same meaning as it has in the Law 21 Enforcement (Powers and Responsibilities) Act 2002. 22 matter or a thing connected with an offence means: 23 (a) any matter or a thing with respect to which the offence has been 24 committed, or 25 (b) any matter or a thing that will afford evidence of the commission 26 of an offence, or 27 (c) any matter or a thing that was used, or is intended to be used, for 28 the purpose of committing the offence. 29 offence includes an offence that there are reasonable grounds for 30 believing has been, or is to be, committed. 31 91 Powers to inspect and seize things 32 (1) An inspector may, on any premises lawfully entered, do anything that 33 in the opinion of the inspector is necessary to be done for the purposes 34 of this Part, including (but not limited to) the things specified in 35 subsection (2). 36 Page 39 Clause 91 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 8 Enforcement (2) An inspector may do any or all of the following: 1 (a) carry out surveillance activities, 2 (b) examine and inspect any part of the premises or any article or 3 thing on the premises, 4 (c) make such examinations and inquiries as the inspector considers 5 necessary, 6 (d) require records and other documents required to be kept for the 7 purposes of this Act or the regulations to be produced for 8 inspection, 9 (e) examine and inspect any such records or other documents, 10 (f) take copies of any such records or other documents, 11 (g) seize anything that the inspector has reasonable grounds for 12 believing is connected with an offence under this Act or the 13 regulations, 14 (h) do any other thing the inspector is empowered to do under this 15 Part. 16 (3) The power conferred on a person authorised under subsection (2) to 17 require the production of a document includes the power: 18 (a) to require its translation into the English language, if it is not 19 written in English, and 20 (b) to require the production, in hard-copy, or graphic form, of a 21 document that is stored electronically or that otherwise consists 22 of anything referred to in paragraph (b) or (c) of the definition of 23 document in section 21 (1) of the Interpretation Act 1987. 24 (4) The power to seize anything connected with an offence includes a 25 power to seize: 26 (a) a thing with respect to which the offence has been committed, 27 and 28 (b) a thing that will afford evidence of the commission of the 29 offence, and 30 (c) a thing that was used for the purpose of committing the offence. 31 A reference to any such offence includes a reference to an offence that 32 there are reasonable grounds for believing has been committed. 33 (5) A person may be required to furnish a document under this Division 34 only if the document is in the person's possession or is within the 35 person's power to obtain lawfully. 36 Page 40 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 92 Enforcement Part 8 92 Dealing with seized things 1 (1) If an inspector seizes anything under section 91 on any premises, the 2 inspector must issue the person apparently in charge of the premises 3 with a written receipt for the thing seized. 4 (2) An inspector may retain anything seized under section 91 until the 5 completion of any proceedings (including proceedings on appeal) in 6 which it may be evidence. 7 (3) A record may be retained under subsection (2) only if the person from 8 whom the record was seized is provided, within a reasonable time after 9 the seizure, with a copy of the record certified by the inspector as a true 10 copy. 11 (4) Subsection (2) ceases to have effect in relation to anything seized if, on 12 the application of a person aggrieved by the seizure, the court in which 13 proceedings referred to in that subsection are commenced so orders. 14 93 Assistance to be given to inspectors 15 (1) This section applies for the purpose of enabling an inspector to exercise 16 any of the powers of an inspector under this Division in connection with 17 any premises. 18 (2) The inspector may, by notice in writing given to the owner or occupier 19 of the premises, require the owner or occupier to provide such 20 reasonable assistance and facilities as are specified in the notice within 21 a specified time and in a specified manner. 22 94 Provisions relating to requirements to furnish records, information or 23 answer questions 24 (1) Warning to be given on each occasion 25 A person is not guilty of an offence of failing to comply with a 26 requirement under this Part to furnish records or information or to 27 answer a question unless the person was warned on that occasion that a 28 failure to comply is an offence. 29 (2) Self-incrimination not an excuse 30 A person is not excused from a requirement under this Part to furnish 31 any records or information or to answer a question on the ground that 32 the record, information or answer might incriminate the person or make 33 the person liable to a penalty. 34 (3) Information or answer not admissible if objection made 35 However, any information furnished or answer given by a natural 36 person in compliance with a requirement under this Part is not 37 Page 41 Clause 95 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 8 Enforcement admissible in evidence against the person in criminal proceedings 1 (except proceedings for an offence under this Part) if: 2 (a) the person objected at the time to doing so on the ground that it 3 might incriminate the person, or 4 (b) the person was not warned on that occasion that the person may 5 object to furnishing the information or giving the answer on the 6 ground that it might incriminate the person. 7 (4) Records admissible 8 Any record furnished by a person in compliance with a requirement 9 under this Part is not inadmissible in evidence against the person in 10 criminal proceedings on the ground that the record might incriminate 11 the person. 12 (5) Further information 13 Further information obtained as a result of a record or information 14 furnished or of an answer given in compliance with a requirement under 15 this Part is not inadmissible on the ground: 16 (a) that the record or information had to be furnished or the answer 17 had to be given, or 18 (b) that the record or information furnished or answer given might 19 incriminate the person. 20 (6) Requirement to state name and address 21 This section extends to a requirement under this Part to state a person's 22 name and address. 23 95 Offences under this Part 24 (1) A person must not, without lawful excuse, refuse or fail to comply with 25 a requirement made of the person under this Part. 26 (2) A person must not wilfully: 27 (a) obstruct, delay or hinder an inspector in the exercise of the 28 inspector's powers under this Part, or 29 (b) refuse to allow an inspector to enter any premises the inspector 30 may lawfully enter under this Part. 31 Maximum penalty: 50 penalty units. 32 Page 42 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 96 Enforcement Part 8 Division 3 Other enforcement matters 1 96 Service of documents 2 (1) A document that is authorised or required by this Act or the regulations 3 to be served on any person may be served by: 4 (a) in the case of a natural person: 5 (i) delivering it to the person personally, or 6 (ii) sending it by post to the address specified by the person for 7 the giving or service of documents or, if no such address is 8 specified, the residential or business address of the person 9 last known to the person giving or serving the document, 10 or 11 (iii) sending it by facsimile transmission to the facsimile 12 number of the person, or 13 (b) in the case of a body corporate: 14 (i) leaving it with a person apparently of or above the age of 15 16 years at, or by sending it by post to, the head office, a 16 registered office or a principal office of the body corporate 17 or to an address specified by the body corporate for the 18 giving or service of documents, or 19 (ii) sending it by facsimile transmission to the facsimile 20 number of the body corporate. 21 (2) Nothing in this section affects the operation of any provision of a law or 22 of the rules of a court authorising a document to be served on a person 23 in any other manner. 24 97 Authentication of certain documents by Corporation 25 Every summons, process, demand, order, notice, statement, direction or 26 document requiring authentication by the Corporation may be 27 sufficiently authenticated without the seal of the Corporation if signed 28 by the Chief Executive Officer. 29 98 Corporation may require applicant under section 17 to provide further 30 information or evidence 31 (1) The Corporation may, by written notice, require an applicant under 32 section 17 to provide, within a reasonable period stated in the notice: 33 (a) such information further to the information contained in the 34 application, and 35 (b) such documentary or other evidence (including a statutory 36 declaration), 37 as the Corporation may require to enable it to deal with the application. 38 Page 43 Clause 99 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 8 Enforcement (2) The applicant is guilty of an offence if the applicant, without reasonable 1 excuse, fails to provide the information or evidence within the period 2 stated in the notice. 3 Maximum penalty: 40 penalty units. 4 99 Corporation may require applicant under section 22 or 23 to provide 5 further information or evidence 6 (1) The Corporation may, by notice in writing, require an applicant under 7 section 22 (Application for registration by workers) or 23 (Application 8 by employers for registration of employee) to provide within a 9 reasonable period stated in the notice: 10 (a) such information further to the information contained in the 11 application, and 12 (b) such documentary or other evidence (including a statutory 13 declaration), 14 as the Corporation may require to enable it to deal with the application. 15 (2) The Corporation may refuse to grant the application if the applicant, 16 without reasonable excuse, fails to provide the information or evidence 17 in the period stated in the notice. 18 100 Notice requiring information or documents 19 (1) This section applies if the Corporation believes a person is, or was an 20 employer for the contract cleaning industry, but is not a registered 21 employer. 22 (2) The Corporation may, by written notice given to the person, require the 23 person to give the Corporation the information or documents stated in 24 the notice that are necessary to enable the Corporation to decide 25 whether the person is, or was, an employer in the contract cleaning 26 industry. 27 (3) The notice may state a period, that must be reasonable in the 28 circumstances, within which the information or documents must be 29 given to the Corporation. 30 (4) The person is guilty of an offence if the person, without reasonable 31 excuse, fails to provide the information or documents within the period 32 stated in the notice. 33 Maximum penalty: 40 penalty units. 34 Page 44 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 101 Enforcement Part 8 101 False statements 1 A person who: 2 (a) in any application, certificate, claim, appeal, return or record 3 made, furnished or maintained under or for the purposes of this 4 Act or the regulations, or 5 (b) in any information given: 6 (i) in purported compliance with a requirement made of the 7 person under this Act or the regulations, or 8 (ii) for the purpose of obtaining any exemption, concession, 9 benefit or advantage under this Act or the regulations, 10 makes any statement or records any matter that the person knows to be 11 false or misleading in a material particular is guilty of an offence. 12 Maximum penalty: 50 penalty units. 13 102 Disclosure of information 14 A person must not disclose any information obtained in connection with 15 the administration or execution of this Act (or any other Act conferring 16 or imposing functions on the Corporation) unless that disclosure is 17 made: 18 (a) with the consent of the person from whom the information was 19 obtained, or 20 (b) in connection with the administration or execution of this Act (or 21 any such other Act), or 22 (c) for the purposes of any legal proceedings arising out of this Act 23 (or any such other Act) or of any report of any such proceedings, 24 or 25 (d) in accordance with a requirement imposed under the Ombudsman 26 Act 1974, or 27 (e) with other lawful excuse. 28 Maximum penalty: 50 penalty units. 29 Division 4 Proceedings for offences and debt recovery 30 103 Nature of proceedings for offences 31 (1) Proceedings for an offence under this Act or the regulations may be 32 dealt with summarily before the Local Court. 33 (2) The provisions of the Industrial Relations Act 1996 relating to appeals 34 from, and the stating of a case by, the Local Court to the Industrial 35 Relations Commission in Court Session apply to proceedings before the 36 Local Court for offences against this Act or the regulations. 37 Page 45 Clause 104 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 8 Enforcement (3) Despite anything in any other Act, proceedings for an offence against 1 this Act or the regulations may be instituted within the period of 6 years 2 after the act or omission alleged to constitute the offence. 3 104 Offences by corporations 4 (1) If a corporation contravenes, whether by act or omission, any provision 5 of this Act or the regulations, each person who is a director of the 6 corporation or who is concerned in the management of the corporation 7 is taken to have contravened the same provision if the person knowingly 8 authorised or permitted the contravention. 9 (2) A person may be proceeded against and convicted under a provision 10 pursuant to subsection (1) whether or not the corporation has been 11 proceeded against or has been convicted under the provision. 12 (3) Nothing in this section affects any liability imposed on a corporation for 13 an offence committed by the corporation under this Act or the 14 regulations. 15 105 Recovery of charges etc by Corporation 16 Any charge, fee, levy or money due to the Corporation under this Act 17 may be recovered by the Corporation as a debt in a court of competent 18 jurisdiction. 19 106 Orders to make levy payments 20 (1) If the Local Court convicts a person, or finds the person guilty, of an 21 offence against section 17 (Application for registration by employers), 22 the Local Court may, in addition to imposing a penalty on the person, 23 order the person to pay the Corporation the amount that would have 24 been payable by the person under section 50 (Levy payments by 25 employers) if the person had complied with this Act since becoming 26 registered as an employer. 27 (2) A person who contravenes an order under subsection (1) commits an 28 offence. 29 Maximum penalty: 30 (a) in the case of a corporation--100 penalty units, or 31 (b) in any other case--100 penalty units or imprisonment for one 32 year (or both). 33 Page 46 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 107 Enforcement Part 8 107 Certificate as to payment of levies 1 A certificate purporting to be signed by the Chief Executive Officer or 2 a person holding, or acting in, a prescribed office or position and 3 certifying: 4 (a) that, on a date specified in the certificate, an amount of levy, so 5 specified, was paid to the Corporation or an authorised agent of 6 the Corporation, or 7 (b) that, during a period so specified, an amount of levy was not so 8 paid, or 9 (c) that no amount of levy was payable, 10 is admissible in evidence in any proceedings and is evidence of the 11 matters stated in it. 12 Page 47 Clause 108 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 9 Relationship to other laws Part 9 Relationship to other laws 1 108 Definition 2 In this Part: 3 relevant law means the following: 4 (a) the Long Service Leave Act 1955, 5 (b) a corresponding law, 6 (c) a law prescribed by the regulations for employment in the 7 contract cleaning industry. 8 109 Benefits under other laws--election 9 (1) A registered worker must elect the law under which long service leave 10 benefits are to be taken if the worker is eligible both for long service 11 benefits under this Act and to long service benefits accrued after the 12 commencement of this Act under a relevant law. 13 (2) If a registered worker makes an election under subsection (1), the 14 worker must give the Corporation notice in writing of the nature of the 15 election and the engagement period for which the election is made. 16 (3) If a registered worker elects to take long service benefits under a 17 relevant law, the Corporation must remove from the relevant workers 18 register the workers's credits for the engagement period. 19 (4) However, the Corporation must keep a record of the removed credits. 20 110 Benefits under other laws--reimbursement of employer 21 (1) This section applies if: 22 (a) a registered worker has made an election under section 109, and 23 (b) an employer pays the registered worker an amount under a 24 relevant law. 25 (2) The employer may apply to the Corporation for reimbursement of an 26 amount paid under the relevant law, less any levy or other amount 27 outstanding that is payable by the employer to the Corporation under 28 this Act, if: 29 (a) an application is made to the Corporation, and 30 (b) the Corporation is satisfied that the amount paid by the employer 31 was properly paid by the employer under the relevant law. 32 (3) The application is to be made in the approved form. 33 Page 48 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 111 Relationship to other laws Part 9 111 Reimbursement for certain payments under Long Service Leave Act 1 1955 2 (1) This section applies if an employee in the contract cleaning industry has 3 an entitlement to long service leave with an employer that was accrued 4 under the Long Service Leave Act 1955 but has not accrued any 5 entitlement with any employer under this Act. 6 (2) The employer may apply to the Corporation for reimbursement of so 7 much of the amount of long service leave as is payable to the employee 8 for any part of the entitlement to long service leave accrued under the 9 Long Service Leave Act 1955 during an engagement period in which the 10 employee was a registered worker under this Act. 11 (3) The Corporation must pay the employer the amount if satisfied the 12 amount paid by the employer was properly paid by the employer under 13 the Long Service Leave Act 1955. 14 (4) If the Corporation makes a payment under subsection (3), the 15 Corporation must remove from the workers register the workers's 16 credits for the engagement period concerned. 17 Page 49 Clause 112 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 10 Reciprocal arrangements Part 10 Reciprocal arrangements 1 112 Reciprocal agreements for corresponding laws 2 (1) The Minister administering this Act may enter into an agreement (a 3 reciprocal agreement) with the Minister of another State or a Territory 4 who administers a corresponding law in relation to payment of long 5 service leave to people carrying out work in the contract cleaning 6 industry. 7 (2) Without limiting subsection (1), the agreement may make provision in 8 relation to the following: 9 (a) payments for, or instead of, long service leave, 10 (b) the exchange of information about service credits and 11 entitlements to long service benefits between the Corporation and 12 the reciprocal authority under the corresponding law, 13 (c) anything else in relation to long service benefits that the Minister 14 administering this Act considers appropriate. 15 113 Payment by Corporation on reciprocal authority's behalf 16 (1) This section applies to a registered worker who has a long service leave 17 entitlement under this Act and a corresponding law. 18 (2) The worker may apply to the Corporation for payment of a long service 19 leave entitlement worked out in accordance with the corresponding law. 20 (3) The application must be in the approved form. 21 (4) The Corporation must pay the worker the amount of the entitlement 22 worked out in the way stated in the corresponding law if the Corporation 23 is authorised by the reciprocal authority to make the payment. 24 114 Payments by reciprocal authority on Corporation's behalf 25 (1) This section applies if, under a corresponding law, a reciprocal authority 26 pays to a person an amount that, but for the payment, would have been 27 payable for a long service leave entitlement under this Act for work 28 done in the contract cleaning industry. 29 (2) If the Corporation is notified about the payment and is satisfied that the 30 payment was properly made, the Corporation must reimburse the 31 reciprocal authority the amount worked out using the following 32 formula: 33 D 0.8667 � -------- � R - 365 Page 50 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Clause 114 Reciprocal arrangements Part 10 (3) If the Corporation makes a reimbursement under subsection (2), the 1 obligation of the Corporation to make the payment to the person for the 2 entitlement is discharged. 3 (4) In this section: 4 D means the number of days of service credited to the registered person 5 in the workers register to which the payment relates. 6 R is the amount decided by the reciprocal authority as the weekly 7 amount payable to the person for the service credited to the person in 8 this State. 9 Page 51 Clause 115 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Part 11 Miscellaneous Part 11 Miscellaneous 1 115 Personal liability 2 A matter or thing done or omitted to be done by the Minister, the 3 Corporation, the Committee or a member of the Committee, the Chief 4 Executive Officer, or a person acting under the direction of the Minister, 5 the Corporation, the Committee or the Chief Executive Officer does not, 6 if the matter or thing was done or omitted in good faith for the purpose 7 of executing this or any other Act, subject the member of the 8 Committee, the Chief Executive Officer, or the person so acting 9 personally, to any action, liability, claim or demand. 10 116 Regulations 11 (1) The Governor may make regulations, not inconsistent with this Act, for 12 or with respect to any matter that by this Act is required or permitted to 13 be prescribed or that is necessary or convenient to be prescribed for 14 carrying out or giving effect to this Act. 15 (2) Without limiting subsection (1), regulations may be made with respect 16 to fees (if any) payable under this Act and the waiver and refund of such 17 fees. 18 (3) A regulation may create an offence punishable by a penalty not 19 exceeding 5 penalty units. 20 117 Review of Act 21 (1) The Minister is to review this Act to determine whether the policy 22 objectives of the Act remain valid and whether the terms of the Act 23 remain appropriate for securing those objectives. 24 (2) The review is to be undertaken as soon as possible after the period of 25 5 years from the date of assent to this Act. 26 (3) A report on the outcome of the review is to be tabled in each House of 27 Parliament within 12 months after the end of the period of 5 years. 28 Page 52 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Constitution and procedure of Committee Schedule 1 Schedule 1 Constitution and procedure of 1 Committee 2 (Section 9 (5)) 3 Part 1 General 4 1 Definitions 5 In this Schedule: 6 appointed member means a member other than the Chairperson. 7 Chairperson means the Chairperson of the Committee. 8 member means any member of the Committee. 9 Part 2 Constitution 10 2 Terms of office of members 11 Subject to this Schedule and the regulations, an appointed member 12 holds office for such period (not exceeding 3 years) as is specified in the 13 member's instrument of appointment, but is eligible (if otherwise 14 qualified) for re-appointment. 15 3 Part-time appointments 16 Appointed members hold office as part-time members. 17 4 Reimbursement of nominating body 18 The body that nominated an appointed member is entitled to be 19 reimbursed such amount as the Minister may from time to time 20 determine for time expended by the appointed member in carrying out 21 the functions of a member. 22 5 Deputies 23 (1) The Minister may, from time to time, appoint a person to be the deputy 24 of an appointed member, and may revoke any such appointment. 25 (2) A deputy of an appointed member is to be appointed on the nomination 26 of the same body as the body that nominated the appointed member for 27 membership of the Committee. 28 (3) In the absence of an appointed member, the member's deputy may, if 29 available, act in the place of the member. 30 (4) While acting in the place of an appointed member, a person has all the 31 functions of the member and is taken to be a member. 32 Page 53 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Schedule 1 Constitution and procedure of Committee (5) For the purposes of this clause, a vacancy in the office of an appointed 1 member is taken to be an absence of the member. 2 6 Vacancy in office of member 3 (1) The office of an appointed member becomes vacant if the member: 4 (a) dies, or 5 (b) completes a term of office and is not re-appointed, or 6 (c) resigns the office by instrument in writing addressed to the 7 Minister, or 8 (d) is removed from office by the Minister under this clause, or 9 (e) is absent from 3 consecutive meetings of the Committee of which 10 reasonable notice has been given to the member personally or by 11 post, except on leave granted by the Minister or unless the 12 member is excused by the Minister for having been absent from 13 those meetings, or 14 (f) becomes bankrupt, applies to take the benefit of any law for the 15 relief of bankrupt or insolvent debtors, compounds with his or her 16 creditors or makes an assignment of his or her remuneration for 17 their benefit, or 18 (g) becomes a mentally incapacitated person, or 19 (h) is convicted in New South Wales of an offence that is punishable 20 by imprisonment for 12 months or more or is convicted 21 elsewhere than in New South Wales of an offence that, if 22 committed in New South Wales, would be an offence so 23 punishable. 24 (2) The Minister may remove an appointed member from office at any time. 25 7 Filling of vacancy in office of appointed member 26 If the office of any appointed member becomes vacant, a person is, 27 subject to this Act and the regulations, to be appointed to fill the 28 vacancy. 29 8 Disclosure of pecuniary interests 30 (1) If: 31 (a) a member has a direct or indirect pecuniary interest in a matter 32 being considered or about to be considered at a meeting of the 33 Committee, and 34 (b) the interest appears to raise a conflict with the proper 35 performance of the member's duties in relation to the 36 consideration of the matter, 37 Page 54 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Constitution and procedure of Committee Schedule 1 the member must, as soon as possible after the relevant facts have come 1 to the member's knowledge, disclose the nature of the interest at a 2 meeting of the Committee. 3 (2) A disclosure by a member at a meeting of the Committee that the 4 member: 5 (a) is a member, or is in the employment, of a specified company or 6 other body, or 7 (b) is a partner, or is in the employment, of a specified person, or 8 (c) has some other specified interest relating to a specified company 9 or other body or to a specified person, 10 is a sufficient disclosure of the nature of the interest in any matter 11 relating to that company or other body or to that person which may arise 12 after the date of the disclosure and which is required to be disclosed 13 under subclause (1). 14 (3) Particulars of any disclosure made under this clause must be recorded 15 by the Committee in a book kept for the purpose and that book must be 16 open at all reasonable hours to inspection by any person on payment of 17 the fee determined by the Committee. 18 (4) After a member has disclosed the nature of an interest in any matter, the 19 member must not, unless the Minister or the Committee otherwise 20 determines: 21 (a) be present during any deliberation of the Committee with respect 22 to the matter, or 23 (b) take part in any decision of the Committee with respect to the 24 matter. 25 (5) For the purposes of the making of a determination by the Committee 26 under subclause (4), a member who has a direct or indirect pecuniary 27 interest in a matter to which the disclosure relates must not: 28 (a) be present during any deliberation of the Committee for the 29 purpose of making the determination, or 30 (b) take part in the making by the Committee of the determination. 31 (6) A contravention of this clause does not invalidate any decision of the 32 Committee. 33 (7) This clause applies to a member of a subcommittee of the Committee 34 and the subcommittee in the same way as it applies to a member of the 35 Committee and the Committee. 36 Page 55 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Schedule 1 Constitution and procedure of Committee 9 Effect of certain other Acts 1 (1) Chapter 2 of the Public Sector Employment and Management Act 2002 2 does not apply to or in respect of the appointment of an appointed 3 member. 4 (2) If by or under any Act provision is made: 5 (a) requiring a person who is the holder of a specified office to 6 devote the whole of his or her time to the duties of that office, or 7 (b) prohibiting the person from engaging in employment outside the 8 duties of that office, 9 the provision does not operate to disqualify the person from holding that 10 office and also the office of an appointed member or from accepting and 11 retaining any remuneration payable to the person under this Act as a 12 member. 13 Part 3 Procedure 14 10 General procedure 15 The procedure for the calling of meetings of the Committee and for the 16 conduct of business at those meetings is, subject to this Act and the 17 regulations, to be as determined by the Committee. 18 11 Quorum 19 The quorum for a meeting of the Committee is a majority of its members 20 for the time being. 21 12 Presiding member 22 (1) The Chairperson (or, in the absence of the Chairperson, a person elected 23 by the members of the Committee who are present at a meeting of the 24 Committee) is to preside at a meeting of the Committee. 25 (2) The presiding member has a deliberative vote and, in the event of an 26 equality of votes, has a second or casting vote. 27 13 Voting 28 A decision supported by a majority of the votes cast at a meeting of the 29 Committee at which a quorum is present is the decision of the 30 Committee. 31 14 Transaction of business outside meetings or by telephone 32 (1) The Committee may, if it thinks fit, transact any of its business by the 33 circulation of papers among all the members of the Committee for the 34 Page 56 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Constitution and procedure of Committee Schedule 1 time being, and a resolution in writing approved in writing by a majority 1 of those members is taken to be a decision of the Committee. 2 (2) The Committee may, if it thinks fit, transact any of its business at a 3 meeting at which members (or some members) participate by telephone, 4 closed-circuit television or other means, but only if any member who 5 speaks on a matter before the meeting can be heard by the other 6 members. 7 (3) For the purposes of: 8 (a) the approval of a resolution under subclause (1), or 9 (b) a meeting held in accordance with subclause (2), 10 the Chairperson and each member have the same voting rights as they 11 have at an ordinary meeting of the Committee. 12 (4) A resolution approved under subclause (1) is, subject to the regulations, 13 to be recorded in the minutes of the meetings of the Committee. 14 (5) Papers may be circulated among the members for the purposes of 15 subclause (1) by facsimile or other transmission of the information in 16 the papers concerned. 17 15 First meeting 18 The Minister may call the first meeting of the Committee in such 19 manner as the Minister thinks fit. 20 Page 57 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Schedule 2 Savings, transitional and other provisions Schedule 2 Savings, transitional and other 1 provisions 2 1 Regulations 3 (1) The regulations may contain provisions of a savings or transitional 4 nature consequent on the enactment of the following Acts: 5 this Act 6 (2) Any such provision may, if the regulations so provide, take effect from 7 the date of assent to the Act concerned or a later date. 8 (3) To the extent to which any such provision takes effect from a date that 9 is earlier than the date of its publication on the NSW legislation website, 10 the provision does not operate so as: 11 (a) to affect, in a manner prejudicial to any person (other than the 12 State or an authority of the State), the rights of that person 13 existing before the date of its publication, or 14 (b) to impose liabilities on any person (other than the State or an 15 authority of the State) in respect of anything done or omitted to 16 be done before the date of its publication. 17 2 Transitional arrangements affecting other laws 18 Regulations under clause 1 may have effect despite any provision of 19 Part 9 (Relationship to other laws). 20 Page 58 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Amendment of other Acts and regulation Schedule 3 Schedule 3 Amendment of other Acts and regulation 1 3.1 Government Information (Public Access) Regulation 2009 2 Schedule 3 Agencies declared to be part of other agencies 3 Omit "Building and Construction Industry Long Service Payments 4 Corporation" from the column headed "Parent agency". 5 Insert instead "Long Service Corporation". 6 3.2 Industrial Relations Act 1996 No 17 7 Section 382 Jurisdiction of Chief and other Industrial Magistrates 8 Insert after the matter relating to the Building and Construction Industry Long 9 Service Payments Act 1986 in section 382 (1): 10 Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 11 3.3 Law Enforcement (Powers and Responsibilities) Act 2002 12 No 103 13 Schedule 2 Search warrants under other Acts 14 Insert in alphabetical order: 15 Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010, 16 section 90 17 3.4 Long Service Leave Act 1955 No 38 18 [1] Section 4 Long service leave 19 Insert after section 4 (5A): 20 (5B) An employer must not give to a person who is a registered worker 21 under the Contract Cleaning Industry (Portable Long Service 22 Leave Scheme) Act 2010 any long service leave or pay to any 23 such person any payment in respect of long service leave unless 24 that person applies to the employer for the leave or payment. 25 [2] Sections 4B and 4C 26 Insert after section 4A: 27 4B Payments to contract cleaning industry workers to be notified 28 An employer who intends to make any payment by way of a 29 benefit under this Act to or in respect of an employee employed 30 Page 59 Contract Cleaning Industry (Portable Long Service Leave Scheme) Bill 2010 Schedule 3 Amendment of other Acts and regulation (or who was employed) in cleaning work (within the meaning of 1 the Contract Cleaning Industry (Portable Long Service Leave 2 Scheme) Act 2010) must notify the Long Service Corporation of 3 its intention before making the payment. 4 4C Benefits under this Act and Contract Cleaning Industry (Portable 5 Long Service Leave Scheme) Act 2010 6 (1) This section applies to an employee who: 7 (a) is registered under the Contract Cleaning Industry 8 (Portable Long Service Leave Scheme) Act 2010, and 9 (b) has elected under that Act to take long service leave 10 benefits under that Act for a period stated by the employee. 11 (2) The employee's election does not prevent the employee from 12 receiving benefits under this Act. 13 (3) However, the employee is not entitled to a benefit under this Act 14 for a period for which the employee received a benefit under the 15 Contract Cleaning Industry (Portable Long Service Leave 16 Scheme) Act 2010. 17 3.5 Workers Compensation Act 1987 No 70 18 Section 174 Records relating to wages, contracts etc to be kept and 19 supplied 20 Insert in paragraph (b1) of the definition of wages in section 174 (9) "or the 21 Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010" 22 after "1986)". 23 Page 60
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