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This is a Bill, not an Act. For current law, see the Acts databases.


LONG SERVICE LEAVE (AMENDMENT) BILL 2005

                 PARLIAMENT OF VICTORIA

        Long Service Leave (Amendment) Act 2005
                                  Act No.


                       TABLE OF PROVISIONS
Clause                                                                     Page
  1.     Purposes                                                             1
  2.     Commencement                                                         2
  3.     Principal Act                                                        2
  4.     Definitions                                                          2
  5.     New section 56A inserted                                             3
         56A. Entitlement to long service leave after 10 years                3
  6.     Entitlement to long service leave if employment stops after
         7 years                                                             3
  7.     Definition of "employee"                                            4
  8.     Meaning of "continuous employment"                                  4
  9.     New section 62A inserted                                            4
         62A. Meaning of "continuous employment" for casual and
                  seasonal employees                                          4
  10.    Whether interruptions are to be included in the period of
         employment                                                          5
  11.    Meaning of "ordinary pay"                                           6
  12.    New section 66 substituted                                          8
         66. When leave is to be taken                                       8
  13.    Increased penalties                                                 9
  14.    New section 70 substituted                                          9
         70.      Long service leave to be exclusive of annual leave and
                  public holidays                                             9
  15.    New section 71A inserted                                             9
         71A. Leave at half pay                                               9
  16.    Further increased penalties                                         10
  17.    Settlement of disputes concerning leave                             10
  18.    Further increased penalty                                           10
  19.    Contracting out prohibited                                          10
  20.    Further increased penalties                                         11
  21.    Who can prosecute under this Act?                                   11
  22.    New section 158A inserted                                           11
         158A. Conduct corporations imputed to directors                     11
  23.    Reverse onus of proof in certain cases                              12
  24.    Recovery of money owed                                              12




                                      i
551293B.I1-19/4/2005                          BILL LA INTRODUCTION 19/4/2005

 


 

Clause Page 25. Court may order payment of arrears on conviction 13 26. Regulations 13 ENDNOTES 14 ii 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

PARLIAMENT OF VICTORIA A BILL to amend the Long Service Leave Act 1992 to make the law relating to long service leave more consistent with modern working practices and for other purposes. Long Service Leave (Amendment) Act 2005 The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are to amend the Long Service Leave Act 1992-- (a) to make the law relating to long service leave more consistent with modern working 5 practices and with similar laws in other Australian jurisdictions; and 1 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 2 Act No. (b) to ensure that employees who take leave for family reasons are not disadvantaged. 2. Commencement This Act comes into operation on 1 January 2006. 3. Principal Act 5 See: In this Act, the Long Service Leave Act 1992 is Act No. called the Principal Act. 83/1992. Reprint No. 2 as at 6 March 1997 and amending Act No. 44/2001. LawToday: www.dms. dpc.vic. gov.au 4. Definitions In section 4 of the Principal Act-- (a) in the definition of "Chief Administrator", 10 for "Business and Employment" substitute "Innovation, Industry and Regional Development"; (b) for the definition of "employment agreement" substitute-- 15 ' "employment agreement" means the agreement (whether written or oral) under which an employee is employed, and includes-- (a) a certified agreement or an 20 Australian Workplace Agreement made under the Workplace Relations Act 1996 of the Commonwealth; and 2 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 5 Act No. (b) any terms and conditions of employment to which an employee is entitled under an award made under the Workplace Relations Act 1996 of the 5 Commonwealth;'. 5. New section 56A inserted After section 56 of the Principal Act insert-- "56A. Entitlement to long service leave after 10 years 10 (1) If an employee has completed at least 10, but less than 15, years of continuous employment with one employer, the employee is entitled to an amount of long service leave equal to 1/60th of the period of 15 continuous employment with that employer. (2) For the purposes of working out when an employee becomes entitled to long service leave under this section, only 2/3rds of the employee's continuous employment 20 completed before the commencement of this section counts as continuous employment.". 6. Entitlement to long service leave if employment stops after 7 years (1) Insert the following heading to section 58 of the 25 Principal Act-- "Entitlement to long service leave if employment stops after 7 years". (2) For section 58(1) of the Principal Act substitute-- 30 "(1) This section only applies if an employee's employment is ended and the employee has completed at least 7, but less than 15, years of continuous employment with one employer.". 35 3 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 7 Act No. 7. Definition of "employee" In section 59 of the Principal Act, for the definition of "employee" substitute-- ' "employee" means a person employed by an employer to do any work for hire or reward, 5 and includes-- (a) an apprentice and any person whose contract of employment requires him or her to learn or to be taught any occupation; and 10 (b) a casual or seasonal employee;'. 8. Meaning of "continuous employment" (1) For section 62(2)(c) of the Principal Act substitute-- "(c) any other absence from work approved by 15 his or her employer (paid or unpaid), including carer's leave but not including adoption, maternity or paternity leave; (ca) the taking of any period of adoption, maternity or paternity leave (paid or unpaid), 20 not exceeding 12 months (or any longer period specified in the relevant employment agreement);". (2) Section 62(2)(i) and (j) of the Principal Act are repealed. 25 9. New section 62A inserted After section 62 of the Principal Act insert-- '62A. Meaning of "continuous employment" for casual and seasonal employees (1) Without limiting section 62, the employment 30 of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if-- 4 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 10 Act No. (a) there is no more than an absence of 3 months between each instance of employment in the period; or (b) there is more than an absence of 3 months between two particular 5 instances of employment, but the length of the absence is due to the terms of the engagement of the employee by the employer. (2) Without limiting section 62, the employment 10 of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if the absences between instances of employment are due to the seasonal nature of the 15 employee's employment. (3) Sub-sections (1) and (2) apply even if-- (a) any of the employment is not full-time; or (b) the employee is employed by the 20 employer under 2 or more employment agreements; or (c) the employee has engaged in other employment during the period.'. 10. Whether interruptions are to be included in the 25 period of employment (1) For section 63(3) of the Principal Act substitute-- "(3) Any absence from work referred to in section 62(2)(c) is to be counted as part of the period 30 of an employee's employment unless-- (a) on it being approved, it was agreed in writing between the employee and the employer (at the request of the employee) that it not be counted; or 35 5 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 11 Act No. (b) it is unpaid adoption, maternity or paternity leave.". (2) In section 63(4) of the Principal Act, for "(g), (h), (i) and (j)" substitute "(g) and (h)". 11. Meaning of "ordinary pay" 5 (1) For section 64(3) and (4) of the Principal Act substitute-- "(3) If no ordinary time rate of pay is fixed for an employee's work under the relevant employment agreement, the employee's 10 ordinary time rate of pay is to be taken to be the greater of the following-- (a) the average weekly rate earned by the employee in the 12 months immediately before he or she takes long 15 service leave; (b) the average weekly rate earned by the employee in the 5 years immediately before he or she takes long service leave. 20 (4) If-- (a) no normal weekly number of hours of work is fixed for an employee's work under the relevant employment agreement; or 25 (b) the normal weekly number of hours is fixed but is changed one or more times during the 12 months immediately before the employee takes long service leave-- 30 the employee's normal weekly number of hours of work is to be taken to be the greater of the following-- 6 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 11 Act No. (c) the average weekly number of hours worked by the employee in the 12 months immediately before he or she takes long service leave; (d) the average weekly number of hours 5 worked by the employee in the 5 years immediately before he or she takes long service leave.". (2) After section 64(6) of the Principal Act insert-- "(7) If an employee is-- 10 (a) working under a return to work plan (within the meaning of the Accident Compensation Act 1985); or (b) absent from work because of a workplace illness or injury and in 15 receipt of any benefits from the Victorian WorkCover Authority for that illness or injury-- his or her normal weekly hours and ordinary time rate of pay are to be taken to be the 20 greater of the following-- (c) the employee's normal weekly hours and ordinary time rate of pay immediately before he or she takes long service leave; 25 (d) the employee's normal weekly hours and ordinary time rate of pay immediately before he or she developed the relevant illness or suffered the relevant injury.". 30 7 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 12 Act No. 12. New section 66 substituted For section 66 of the Principal Act substitute-- "66. When leave is to be taken (1) An employer and an employee who is entitled to long service leave under this Act 5 may agree when the employee is to take the leave. (2) In the absence of an agreement under sub- section (1), the employer may direct the employee to take long service leave at a 10 particular time by giving the employee at least 3 months' written notice. (3) Subject to sub-section (4), an employee who receives a notice from an employer under sub-section (2) must take the leave as 15 directed by the employer. (4) The employee may apply to the Industrial Division of the Magistrates' Court for an order concerning the taking of long service leave-- 20 (a) if the employee and the employer cannot agree under sub-section (1); or (b) if the employee receives a notice from the employer under sub-section (2). (5) In determining an application under sub- 25 section (4), the Court may take into account all of the relevant circumstances, including the needs of the employee and the needs of the employer's business.". 8 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 13 Act No. 13. Increased penalties For the penalty at the foot of each of sections 68(2) and 69(2) of the Principal Act substitute-- "Penalty: 20 penalty units.". 14. New section 70 substituted 5 For section 70 of the Principal Act substitute-- "70. Long service leave to be exclusive of annual leave and public holidays Long service leave does not include any public holiday or annual leave occurring 10 during the period when the long service leave is taken.". 15. New section 71A inserted After section 71 of the Principal Act insert-- "71A. Leave at half pay 15 (1) An employee may request his or her employer to grant the employee an amount of long service leave-- (a) twice as long as the amount to which the employee would otherwise be 20 entitled; and (b) at a rate of pay equal to half the employee's ordinary pay. (2) An employer must grant a request made under sub-section (1) if it is reasonable to do 25 so having regard to the needs of the employee and the needs of the employer's business.". 9 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 16 Act No. 16. Further increased penalties For the penalty at the foot of each of sections 72(2), 73(1) and 74(2) of the Principal Act substitute-- "Penalty: 20 penalty units.". 5 17. Settlement of disputes concerning leave In section 75(1) of the Principal Act-- (a) at the end of paragraph (b) insert "; or"; (b) after paragraph (b) insert-- "(c) a refusal by an employer to grant a 10 request made by an employee under section 71A(1).". 18. Further increased penalty For the penalty at the foot of section 78(2) of the Principal Act substitute-- 15 "Penalty: 5 penalty units.". 19. Contracting out prohibited After section 79(2) of the Principal Act insert-- '(3) In this section, "employment agreement" does not include-- 20 (a) a certified agreement or an Australian Workplace Agreement made under the Workplace Relations Act 1996 of the Commonwealth; or (b) any terms and conditions of 25 employment to which an employee is entitled under an award made under the Workplace Relations Act 1996 of the Commonwealth.'. 10 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 20 Act No. 20. Further increased penalties For the penalty at the foot of each of sections 80(1), 80(2) and 80(3) of the Principal Act substitute-- "Penalty: 20 penalty units.". 5 21. Who can prosecute under this Act? In section 154(1)(c) of the Principal Act for "Business and Employment" substitute "Innovation, Industry and Regional Development". 10 22. New section 158A inserted After section 158 of the Principal Act insert-- '158A. Conduct corporations imputed to directors (1) For the purposes of this Act, any conduct 15 engaged in by a corporation (as a result of the application of section 158 or otherwise) is also conduct engaged in by an executive officer of the corporation if the executive officer knew about the conduct or was 20 reckless as to whether it was engaged in. (2) In this section-- "executive officer" of a corporation means-- (a) a director of the corporation; or 25 (b) any other person who is concerned, or takes part, in the management of the corporation (regardless of the person's designation).'. 30 11 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 23 Act No. 23. Reverse onus of proof in certain cases At the end of section 159 of the Principal Act insert-- '(2) In this section, "employment agreement" does not include-- 5 (a) a certified agreement or an Australian Workplace Agreement made under the Workplace Relations Act 1996 of the Commonwealth; or (b) any terms and conditions of 10 employment to which an employee is entitled under an award made under the Workplace Relations Act 1996 of the Commonwealth.'. 24. Recovery of money owed 15 (1) For section 160(2) of the Principal Act substitute-- "(2) A registered organisation may, if requested to do so by an employee who is, or is eligible to become, a member of the organisation, 20 take proceedings in the Industrial Division of the Magistrates' Court to recover money owed to the employee for long service leave. (3) Proceedings under this section must be started within 6 years after the employee's 25 entitlement to the money arises.". (2) After section 160(7) of the Principal Act insert-- '(8) In this section-- "employee" includes a former employee; "employer" includes a former employer; 30 12 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 s. 25 Act No. "employment agreement" does not include-- (a) a certified agreement or an Australian Workplace Agreement made under the Workplace 5 Relations Act 1996 of the Commonwealth; or (b) any terms and conditions of employment to which an employee is entitled under an 10 award made under the Workplace Relations Act 1996 of the Commonwealth; "registered organisation" means an organisation within the meaning of the 15 Workplace Relations Act 1996 of the Commonwealth.'. 25. Court may order payment of arrears on conviction (1) Section 161(2) of the Principal Act is repealed. (2) After section 161(5) insert-- 20 '(6) In this section-- "employee" includes a former employee; "employer" includes a former employer.'. 26. Regulations In section 169 of the Principal Act-- 25 (a) in sub-section (3), for "section 6(2) of the Subordinate Legislation Act 1962" substitute "section 23 of the Subordinate Legislation Act 1994"; (b) sub-section (4) is repealed. 30 13 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

Long Service Leave (Amendment) Act 2005 Endnotes Act No. ENDNOTES By Authority. Government Printer for the State of Victoria. 14 551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005

 


 

 


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