Building and Construction Industry Long Service Payments Act 1986 (NSW)

Building and Construction Industry Long Service Payments Act 1986 No 19 An Act to make provision for long service payments to workers engaged in the building and construction industry; to repeal the Building and Construction Industry Long Service Payments Act 1974; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Building and Construction Industry Long Service Payments Act 1986. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— approved means approved by the Corporation. authorised agent means an agent of the Corporation appointed under section 44. award means a State industrial instrument or a Commonwealth industrial instrument. building and construction industry means the industry of carrying out the construction, reconstruction, renovation, alteration, demolition or maintenance or repairs of or to any of the following— (a) buildings, (b) swimming pools, (c) fences, (d) roadworks, railways, airfields or other works for the carriage of persons, animals or vehicles, (e) breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purpose of navigation, (f) works for the storage or supply of water or for the irrigation of land, (g) works for the conveyance, treatment or disposal of sewage or of the effluent from any premises, (h) bridges, viaducts, aqueducts or tunnels, (i) chimney stacks, cooling towers, drilling rigs, gas holders or silos, (j) pipelines, (k) structures, fixtures or works for use in or in conjunction with any building or other works referred to in paragraphs (a) to (j) inclusive, (l) navigational lights, beacons or markers, (m) works for the drainage of land, (n) works for the storage of liquids, other than water, or of gases, (o) works for the transmission of electric power, (p) works for the transmission of wireless or telegraphic communications, and includes pile driving and the preparation of the site for any building or other works referred to in paragraphs (a) to (p) inclusive. building and construction work means work in the building and construction industry performed in New South Wales, being— (a) work carried out under a contract of employment for which a rate of pay is fixed by an award prescribed by the regulations, or (b) work— (i) carried out under a contract that is not a contract of employment, and (ii) that would, if it had been carried out under a contract of employment, be work for which a rate of pay was fixed by an award prescribed by the regulations, or (c) the work of a person who, under a contract of employment— (i) directly supervises work of the kind referred to in paragraph (a) or (b), or (ii) is a clerk of works. Chief Executive Officer means the Secretary of the Department of Customer Service. Committee means the Building and Construction Industry Long Service Payments Committee constituted by section 8. Commonwealth industrial instrument means an award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) an Act of the Commonwealth, being an award, workplace agreement or other agreement prescribed (or of a class prescribed) by the regulations for the purposes of this definition. Corporation means the Long Service Corporation established under the Long Service Corporation Act 2010. corresponding authority means the authority under a corresponding law that is for the time being charged with the day to day administration of that law. corresponding law means a law declared by an order in force under subsection (6) to be a corresponding law for the purposes of this Act. financial year means a year commencing on 1 July. former Act means the Building and Construction Industry Long Service Payments Act 1974. foundation worker means a registered worker whose name was entered in the register (within the meaning of the former Act) immediately before the commencement of this Act as the name of a foundation worker. Fund means the Building and Construction Industry Long Service Payments Fund established under the Long Service Corporation Act 2010. long service levy means a long service levy under Part 5, and includes an additional amount of any such levy under section 41. long service payment means a long service payment under Part 4. reciprocating State or Territory means a State or Territory of the Commonwealth declared by an order in force under subsection (6) to be a reciprocating State or Territory for the purposes of this Act. register of workers means the register of workers kept by the Corporation under section 15. registered worker means a person whose name is entered in the register of workers. regulation means a regulation made under this Act. standard pay means— (a) except as provided by paragraph (b), the amount of ordinary pay that is payable at the rate applicable for the classification "Carpenter and/or Joiner" under the Building Tradesmen (State) Construction Award published in the Industrial Gazette on 16 July 1975 in respect of work on 5 working days during those hours in which ordinary pay is payable, or (b) the amount of pay prescribed by, or determined in accordance with, the regulations. subcontract worker means a worker who performs work otherwise than under a contract of employment. worker means any person who, under a contract, whether or not a contract of employment, performs building and construction work, however remunerated, but does not include a person of a class prescribed as exempt by the regulations or a person who performs, or supervises the performance of, any such work under a contract of employment— (a) with any body constituted by any Act of the Parliament of a State or of the Commonwealth (other than the Royal Agricultural Society Act 1911 or a prescribed Act), or (b) with a council, a county council or a joint organisation within the meaning of the Local Government Act 1993. working day means a day on which ordinary rates of pay are payable. year's service means a year's service within the meaning of subsection (5). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, work performed by a person outside New South Wales shall be deemed to be building and construction work if— (a) that work would, if it were performed in New South Wales, be building and construction work, and (b) an amount, in the nature of a long service levy, determined by the Corporation has been paid to the Corporation in respect of that work or an agreement has been entered into with the Corporation for the payment of that amount. (3) A reference within the Act to a development consent under the Environmental Planning and Assessment Act 1979 includes a reference to an approval under Part 3A or Part 5.1 of that Act. (4) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (5) For the purposes of this Act, a worker shall be deemed to have a year's service for every 220 days' service that is credited to the worker in the register of workers kept under this Act or for every period of service that is considered to be a year's service under a corresponding law. (6) Subject to subsection (7), the Governor may, by order published in the Gazette— (a) declare a State or Territory of the Commonwealth in relation to which an agreement entered into under section 55 (1) is in force to be a reciprocating State or a reciprocating Territory as the case requires, and (b) declare a law of such a State or Territory to be a corresponding law for the purposes of this Act. Editorial note— For orders under this subsection see Historical notes at the end of this Act. (7) A declaration shall not be made under subsection (6) (b) in respect of the law of a State or Territory unless the Governor is satisfied that the law provides for the payment of long service benefits to or in respect of workers who are or have been engaged in the building and construction industry in that State or Territory. (8) Notes included in this Act do not form part of this Act. Part 2 Administration Division 1 4–7 (Repealed) Division 2 Building and Construction Industry Long Service Payments Committee 8 Constitution of Committee (1) There is constituted by this Act the Building and Construction Industry Long Service Payments Committee. (2) The Committee shall consist of 11 members, of whom— (a) one, who shall be the Chairperson of the Committee, shall be the Chief Executive Officer or a person for the time being nominated by the Chief Executive Officer, (b) 3 shall be persons appointed by the Minister from a panel of 6 persons nominated by Unions NSW, (c) 3 shall be persons appointed by the Minister from a panel of 6 persons nominated jointly by the Master Builders' Association of New South Wales and the Australian Federation of Employers and Industries, and (d) 4 shall be persons appointed by the Minister who have a knowledge of, and experience in, the building and construction industry. (3) Where, for the purposes of subsection (2) (b) or (c), nominations of persons to constitute a panel are not made within the time or in the manner specified by the Minister in a written notice given to the body or organisation entitled to make the nominations, the Minister may appoint a person to be a member of the Committee instead of the person required to be appointed from that panel and the person so appointed shall be deemed to have been duly nominated. (4) Schedule 1 has effect with respect to the members and procedure of the Committee. (5) In any legal proceedings, proof is not required (until evidence is given to the contrary) of— (a) the constitution of the Committee, (b) any resolution of the Committee, (c) the appointment of, or the holding of office by, any member of the Committee, or (d) the presence of a quorum at any meeting of the Committee. (6) In any other Act, in any instrument made under any Act or in any other instrument of any kind, except in so far as the context or subject-matter otherwise indicates or requires, a reference to the "Building and Construction Industry Committee" shall be read as a reference to the Building and Construction Industry Long Service Payments Committee constituted by this section. 9 Functions of Committee (1) The Committee shall have and may exercise the functions conferred or imposed on it by Part 6 or by or under any other provision of this or any other Act. (2) The Committee— (a) shall furnish to the Corporation advice and recommendations on such matters relating to the administration of this Act as are referred to it by the Corporation, and (b) may make recommendations to the Corporation with respect to— (i) the administration of this Act, (ii) the publicising to workers, employers and others of matters relating to the administration of this Act, (iii) the investment of the Fund, and (iv) the rate of any long service levy. Division 3 10–14 (Repealed) Part 3 Registration of workers and service credits Division 1 Register of workers 15 Corporation to keep register of workers (1) The Corporation shall keep a register of workers in which it shall cause to be entered— (a) the names of all persons who are registered under section 17, (b) the date on which each such person became a registered worker, (c) in respect of each such person, the number of days' service in the building and construction industry with which that person is credited in accordance with Division 3, and (d) such other information relating to workers, employers and other persons as the Corporation deems necessary for the purpose of administering this Act. (2) The Corporation may, for the purposes of entering in the register of workers the particulars referred to in subsection (1) (c), rely on the information contained in a certificate of service furnished under section 20 (1) or a claim for service credits furnished under section 21 (1) or on such other information as the Corporation thinks fit. Division 2 Registration of workers 16 Applications for registration (1) A person may at any time apply to the Corporation to be registered as a worker. (2) (Repealed) (3) An application must be made in the approved form. 16A Employer to notify Corporation of employment of workers An employer who employs a worker under a contract of employment must notify the Corporation of that employment within 7 days after the worker commences to perform building and construction work in New South Wales under that contract. Maximum penalty—20 penalty units. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 63. 17 Registration (1) The Corporation is to register every person who the Corporation is satisfied is a worker. (2) The Corporation may register a person as a worker in response to an application by the person for registration or on its own initiative. 18 Date of registration (1) The date on which a person becomes a registered worker is— (a) if the person applied to be registered as a worker—the date on which application for the person's registration was lodged with the Corporation, or (b) if the Corporation registered the person on its own initiative—the date of that registration. (2) Despite subsection (1), the Corporation may, on its own initiative or at the request of a person who is registered as a worker, fix, in respect of any person or class of persons, a date of registration that is earlier than the date referred to in that subsection. (3) However, if a person who is registered as a worker has requested an earlier date in accordance with subsection (2), the Corporation must not fix a date that is earlier than 2 years before the request was made, unless the Corporation is satisfied that special circumstances warrant its doing so. (4) On the fixing of a date in accordance with subsection (2)— (a) the person or class of persons for whom the date is fixed are taken for all purposes to have been registered on and from that date, and (b) service credits to which the person or those persons are entitled under this Act may be credited to the person or those persons in respect of any subsequent dates. 19 Cancellation or suspension of registration (1) In this section, non-service day, in respect of a registered worker, means a day in respect of which the worker did not accumulate a service credit (not being a day prescribed by the regulations as a day to be disregarded in calculations made under subsection (1A) or (1B) in respect of the worker). (1A) The Corporation is to cancel the registration of a registered worker who has not been credited with at least 5 years' service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law. (1B) The Corporation may suspend the registration of a registered worker who has been credited with at least 5 years' service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law. (2) The Corporation may at any time cancel the registration of a registered worker if it is satisfied that the person concerned is not a worker and that the person's application to become a registered worker should have been refused. (2A) The Corporation is to cancel the registration of a worker— (a) on the making of any payment in accordance with section 28 (1) (c), (d) or (e), or section 28 (2), in respect of the worker, or (b) at the request of the worker. (3) The cancellation of the registration of a registered worker under subsection (1A) or (2) takes effect— (a) on the expiration of the period of 42 days after the Corporation notifies the registered worker of the cancellation, or (b) if an appeal under Part 6 is lodged against the cancellation within that period—on the date the appeal is withdrawn or the cancellation is confirmed. (4) On the cancellation of the registration of a worker taking effect— (a) the person ceases to be a registered worker, and (b) the person or the personal representative of the person is not entitled to apply for or be paid any long service payment in respect of any days' service then credited to the person in the register of workers. (5) A person whose registration has been cancelled in accordance with this section may (if eligible) subsequently be registered as a worker. (6) The Corporation may— (a) restore a suspended registration at any time, or (b) restore a cancelled registration— (i) at any time within 6 years after the date of cancellation, if the Corporation is satisfied that special circumstances exist warranting reinstatement, or (ii) at any time, if required to do so in accordance with an agreement in force under section 55. (7) Restoration under subsection (6) (b) (i) of a cancelled registration may be taken by the Corporation to be effective from any date within 6 years after the date of cancellation. (7A) If the cancelled registration of a person is restored under this section, this Act applies in relation to the person as if the person's registration had not been cancelled. (8) While the registration of a worker is suspended— (a) the worker is not to be credited in the register of workers with any service under this Act (being service during the period of suspension), and (b) the Corporation is not required to serve any notice under section 25 (1) on the worker, and (c) subject to section 30— (i) the worker is entitled to apply for and be paid any long service payment in respect of any days' service then credited to the worker in the register of workers, and (ii) if the worker has died (whether before or after the worker's registration was suspended)—the personal representative of the worker is entitled to apply for and be paid any long service payment in respect of any days' service then credited to the worker in the register of workers, but only if the application is made within 2 years after the date of suspension or the date of the worker's death (whichever is the later). (9) If a suspended registration is restored under subsection (6) (a), any days' service under this Act that are credited to the worker as at the date of the suspension are to be restored. 19A Restoration of cancelled registration A special circumstance warranting reinstatement of the registration of a worker under section 19(6)(b)(i) is if— (a) the non-service days used as the basis for cancelling the registration included days (Commonwealth place days) on which the worker performed building and construction work at a place that— (i) is a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970, and (ii) is within the State, and (b) the registration would not have been cancelled if the Commonwealth place days were days of service. Division 3 Service credits 20 Contract of employment workers—certificates of service to be supplied by employers (1) An employer who employs, under a contract of employment, a worker shall— (a) within 1 month after 30 June in each year, furnish to the Corporation a certificate of service in respect of the worker for the year immediately preceding that 30 June, (b) within 7 days (or such other time as may be prescribed by the regulations) after the worker ceases to be so employed, furnish to the Corporation a certificate of service in respect of the worker for the period commencing on 1 July immediately preceding that cessation of employment and ending on that cessation of employment, and (c) within such time as is specified by the Corporation in a notice served on the employer, furnish to the Corporation a certificate of service in respect of the worker for the period specified in the notice. Maximum penalty—20 penalty units. (2) The Corporation may, in any particular case, extend the period within which an employer is required to furnish a certificate of service under subsection (1), but any such extension shall not exceed 2 months. (3) A certificate of service under subsection (1) shall— (a) be in an approved written, electronic or other form, (b) state whether the worker was employed by the employer during the whole of the period to which the certificate relates or, if so employed during a part only of that period, the period during which the worker was so employed, (c) contain such particulars as are requested in the form in respect of the time spent in the performance of building and construction work, (d) contain such particulars of building and construction work performed by the worker outside New South Wales as are requested in the form, (e) contain such other particulars as are required by the Corporation, and (f) be completed in accordance with any directions given by the Corporation. (g) (Repealed) (4) A certificate of service under subsection (1) must be verified in such manner as the Corporation may require. (5) An employer is not required to furnish a certificate of service in respect of a worker or any class of workers if— (a) the employer applies to the Corporation for an exemption from that requirement, (b) the employer satisfies the Corporation that contributions are made to a like scheme relating to the payment of long service payments to the worker or that class of workers, as the case may be, in a Territory of the Commonwealth or in a State other than New South Wales, and (c) the Corporation has, by notice in writing to the employer, granted the exemption and has not, by such a notice, revoked the exemption. 21 Subcontract workers—claims for service credits (1) A registered worker may furnish to the Corporation a claim for service credits in respect of building and construction work performed by the registered worker under a contract other than a contract of employment. (2) A claim for service credits under subsection (1) may be furnished— (a) within 12 months after 30 June in any year, in respect of building and construction work performed by the registered worker in the year immediately preceding that 30 June, (b) within 12 months after the registered worker permanently ceases work in the building and construction industry, in respect of building and construction work performed by the registered worker in the period commencing on 1 July immediately preceding that cessation of work and ending on that cessation of work, or (c) at such other times as the Corporation may approve in any particular case, in respect of building and construction work performed by the registered worker in the period specified by the Corporation in that approval. (3) The Corporation may, in any particular case or class of cases, extend the period within which a registered worker may furnish a claim for service credits under subsection (1). (4) A claim for service credits under subsection (1) shall— (a) be in an approved written, electronic or other form, (b) specify the amount of the assessable income (within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth) derived by the registered worker from the building and construction work to which the claim relates, (c) specify the amount of the prescribed costs incurred by the registered worker in deriving the assessable income referred to in paragraph (b), (d) contain such particulars of building and construction work performed by the registered worker outside New South Wales as are requested in the form, (e) contain such other particulars as are required by the Corporation, and (f) be completed in accordance with any directions given by the Corporation. (g) (Repealed) (5) A claim for service credits under subsection (1) must be verified in such manner as the Corporation may require. (6) The regulations may make provision for or with respect to the manner of determining the assessable income and the prescribed costs referred to in subsection (4) (b) and (c). (7) A claim for service credits may be furnished by a registered worker under subsection (1) for the purpose of obtaining service credits in accordance with section 23 notwithstanding that the registered worker did not perform building and construction work in the period to which the claim relates. 22 Service credits for building and construction work (1) A registered worker who was employed on a full-time basis under a contract of employment in the performance of building and construction work for the whole of a financial year is entitled to be credited in the register of workers with 220 days' service. (2) A registered worker who was so employed for a period consisting of part of a financial year only is entitled to be credited in the register of workers with a number of days' service equal to two-thirds of the number of days in that period. (3) A registered worker— (a) who was employed on a part-time basis under a contract of employment in the performance of building and construction work, or (b) who was employed in the performance of building and construction work and other work, during the whole or any part of a financial year is entitled to be credited in the register of workers with a number of days' service equivalent to the number of full days (as calculated by the Corporation) of employment in building and construction work. (3A) For the purposes of subsection (3), when calculating the number of days' service equivalent to the number of full days of employment in building and construction work, the Corporation is to— (a) count any day on which the registered worker performed building and construction work for more than half the worker's ordinary work day as a full day of employment in building and construction work, and (b) disregard any day on which the registered worker performed work (other than building and construction work) for more than half the worker's ordinary work day. (4) A registered worker who was a subcontract worker performing building and construction work and who lodges a claim for service credits under section 21 is entitled to be credited in the register of workers with— (a) 220 days' service, if the worker's annual income was not less than the minimum annual income, or (b) a number of days' service that bears to 220 the same proportion as the worker's annual income bears to the minimum annual income, in any other case. (5) In this section— income of a subcontract worker means the amount of assessable income specified, pursuant to section 21 (4) (b), in the subcontract worker's claim under section 21 less the amount of the prescribed costs specified, pursuant to section 21 (4) (c), in the claim. minimum annual income of a subcontract worker means an amount equal to 52-times standard pay, calculated as at 1 January last preceding the end of the period to which the worker's claim under section 21 relates. (6) This section has effect subject to section 24. 23 Service credits in other cases (1) A registered worker who— (a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and (b) has not, since the termination of that contract, performed paid work of any kind, and (c) in the financial year in which the contract was terminated, or in any of the 3 subsequent financial years, suffered an illness or injury that is certified in writing by a medical practitioner to be of such a nature as to render the registered worker reasonably unable to perform building and construction work (whether or not any such work was available for the registered worker and whether or not the illness or injury existed before the registered worker last performed any such work), is entitled to be credited in the register of workers with a number of days' service determined by the Corporation to be equivalent to the number of full days during which the worker was certified as being unable to perform building and construction work. (2) A registered worker who— (a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and (b) has not, since the termination of that contract, performed paid work of any kind, and (c) has, since the termination of that contract, in any financial year undertaken a training course recognised by the Corporation as being relevant to the building and construction industry in order to enhance the registered worker's prospects of being employed in the industry, is entitled to be credited in the register of workers with a number of days' service determined by the Corporation to be equivalent to the number of full days spent undertaking the course while unemployed during that year. (3) A registered worker who in any financial year performs voluntary work in the nature of building and construction work in New South Wales as a result of an emergency declared or otherwise recognised under the State Emergency and Rescue Management Act 1989 or under any similar Act of the State or of the Commonwealth, is entitled to be credited in the register of workers with a number of days' service determined by the Corporation to be equivalent to the number of full days spent performing that voluntary work during that year. (4) A registered worker who in any financial year performs light duty work assigned to the worker in accordance with the Workers Compensation Act 1987, while partially incapacitated for work as a result of an injury (as defined in that Act) sustained while performing building and construction work is entitled to be credited in the register of workers with a number of days' service determined by the Corporation to be equivalent to the number of full days spent performing that light duty work during that year. (5) Subsection (4) does