Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 (NSW)

Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 No 122 An Act to establish a scheme for portability of long service leave in the contract cleaning industry; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010. 2 Commencement This Act commences on 1 July 2011. 3 Definitions (1) In this Act— approved form means in the form approved by the Corporation. cleaning work—see section 4. Committee means the Contract Cleaning Industry Long Service Leave Committee constituted by section 9. contract cleaning industry means— (a) in relation to New South Wales—the industry in which employers provide cleaning work, and minor property maintenance work that is incidental or peripheral to such cleaning work, to other people through the provision of workers' services, and (b) in relation to a reciprocating State or Territory—the contract cleaning industry within the meaning of the corresponding law of the State or Territory. contractor means a person (other than an employee) who— (a) performs work for another person for fee or reward on the person's own account, or (b) is declared to be a contractor for the contract cleaning industry under section 8. Corporation means the Long Service Corporation constituted under the Long Service Corporation Act 2010. corresponding law means a law of another State or a Territory that makes provision with respect to long service leave and that is declared by the regulations to be a corresponding law. day, in relation to a worker, means 24 hours or such other period as is prescribed by the regulations as a day for a worker. employee—see section 5. employer—see section 6. employers register means the register referred to in section 11. employer's registration day—see section 12. engagement period for a registered worker—see section 33. exercise a function includes perform a duty. foundation worker—see section 21 (2) and (3). function includes a power, authority or duty. Fund means the Contract Cleaning Industry Long Service Leave Fund maintained under the Long Service Corporation Act 2010. inspector means a person authorised under section 86 to be an inspector for the purposes of Part 8. levy means the long service leave levy imposed under Part 5. long service leave formula—see section 57. ordinary remuneration for a person means the amount paid or payable to the person for cleaning work, other than any amounts for the following— (a) overtime, (b) expenses incurred by the person, (c) the use of materials, equipment or a motor vehicle provided by the person. premises includes the whole or any part of a building, structure or place, whether built on or not. reciprocal authority means the entity under a corresponding law that administers the scheme of long service benefits established by that law. reciprocating State or Territory means a State or Territory with which a reciprocal agreement within the meaning of section 112 is in force. recognised service, for a registered worker, means the total number of days for all engagement periods entered in the workers register for the worker. registered employer means an employer who is registered as an employer under Part 2. registered worker means a person who is registered as a worker under Part 2. Note— A worker may be a contractor or an employee. return period means— (a) a 3-month period, ending at the end of 31 March, 30 June, 30 September or 31 December in any year, during which a worker performs cleaning work, or (b) such other period as may be prescribed by the regulations. Secretary means the Secretary of the Department of Finance, Services and Innovation. service, for a registered worker for the contract cleaning industry, means service in the industry. worker—see section 7. workers register means the register referred to in section 13. worker's registration day—see section 14. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "cleaning work" (1) Cleaning work is— (a) work that has, as its only or main component, the bringing of premises into, or maintaining premises in, a clean condition, or (b) work, or an activity, declared to be cleaning work under section 8. (2) Without limiting subsection (1) (a), work referred to in that paragraph includes the collection of trolleys (other than trolley collection of a kind described by the regulations) and hygiene and pollution control. 5 Meaning of "employee" (1) A person is an employee for the contract cleaning industry if the person is— (a) employed by an employer for that industry, or (b) declared to be an employee for that industry under section 8. (2) In this section— employed includes employed as— (a) a full-time employee, or (b) a part-time employee, or (c) a casual employee. 6 Meaning of "employer" (1) An employer for the contract cleaning industry is a person who— (a) employs one or more persons to perform cleaning work in that industry, or (b) is declared to be an employer for that industry under section 8. (2) The following are not employers for the purposes of subsection (1)— (a) the Commonwealth, (b) the State, (c) a local government authority, (d) a company whose only workers are directors, if each of the directors participates in the management of the company or shares its profits, (e) a person to whom subsection (1) (a) applies who is excluded by the regulations from being an employer. 7 Meaning of "worker" (1) A worker for the contract cleaning industry is a person who— (a) is engaged by an employer under a contract of service to perform cleaning work in the industry, or (b) is a contractor who performs cleaning work in the industry. (2) A worker includes a person who is engaged both to perform cleaning work and to supervise other workers in the contract cleaning industry, whether or not the person is known as a supervisor, leading hand or another title. (3) However, worker does not include a person who performs work in the contract cleaning industry— (a) whose only or main duties are managerial or clerical, or (b) under a contract of service with a partnership if the person is a partner and participates in the management of the partnership or shares the profits, or (c) under a contract of service with the Commonwealth, the State or a Territory or a local government authority, or (d) under a contract, whether or not the contract is a contract of service, with a corporation of which the person is a director, or (e) under a contract, whether or not the contract is a contract of service, with a trust of which the person is a trustee. 8 Declaration by Minister—coverage of Act (1) The Minister may, by order published on the NSW legislation website, declare that for this Act— (a) a person is an employer for the contract cleaning industry, or (b) a person is a contractor for that industry, or (c) a person is an employee, or an employee of a stated employer, for that industry, or (d) work, or an activity, is cleaning work. (2) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order under this section in the same way as those sections apply to statutory rules. 9 Constitution of Long Service Leave Committee (1) There is constituted by this Act the Contract Cleaning Industry Long Service Leave Committee. (2) The Committee is to consist of the following members— (a) the Secretary or a nominee of the Secretary, (b) 2 persons appointed by the Minister, on the nomination of Unions NSW, to represent that body, (c) 2 persons appointed by the Minister, on the nomination of United Workers Union (NSW Branch), to represent that body, (d) 2 persons appointed by the Minister, on the nomination of the Building Service Contractors Association, to represent that body, (e) 2 persons appointed by the Minister who, in the opinion of the Minister, have knowledge of, and experience in, the contract cleaning industry. (3) The person referred to in subsection (2) (a) is to be the Chairperson of the Committee. (4) If a nomination referred to in subsection (2)(b), (c) or (d) is not made by a body within such time as the Minister allows, the Minister may appoint a person the Minister considers suitable to represent that body in place of the person required to be so nominated. (5) Schedule 1 contains provisions relating to members of the Committee. Part 2 Registration Division 1 The registers 10 Corporation must keep registers (1) The Corporation must keep the following registers under this Act— (a) an employers register, (b) a workers register. (2) Subject to this Act, the registers are to be kept in the form and manner, and are to contain such particulars, as the Corporation determines. 11 Employers register (1) The Corporation is to enter the following information in the employers register in relation to a person it registers as an employer for the contract cleaning industry— (a) the employer's name, (b) the employer's trading name (if any), (c) the employer's ABN (if any), (d) the address of the employer's principal place of business, (e) if the employer is a corporation— (i) the address of the corporation's registered office, and (ii) the corporation's ACN, (f) the employer's registration day, (g) if the person is no longer an employer—the day the person stopped being an employer. (2) The Corporation may enter in the register any other information it considers necessary for the administration of this Act. 12 Employer's registration day For the purposes of section 11 (1) (f), the day on which a person becomes a registered employer (the employer's registration day) is the day on which the Corporation received the application for registration under section 17. 13 Workers register (1) The Corporation is to enter the following information (or so much of it as it has or is reasonably able to obtain) in the workers register in relation to a person it registers as a worker for the contract cleaning industry— (a) the worker's name (entered, in the case of a foundation worker, as the name of a foundation worker), (b) if the worker is an employee—each employer for whom the employee works, (c) if the worker is a contractor—the person's ABN (if any), (d) the number of days of service with which the worker is credited under this Act, (e) the total ordinary remuneration of the worker for work performed by the worker, (f) the worker's entitlement to long service leave, (g) details of the long service leave granted to, or taken by, the worker, or payment instead of long service leave made to the worker, under this Act or the Long Service Leave Act 1955, (h) the worker's registration day, (i) if the worker no longer performs cleaning work in the contract cleaning industry—the day that he or she stopped performing such work. (2) The Corporation may enter in the register any other information it considers necessary for the administration of this Act. (3) The Corporation may, for the purposes of entering in the workers register the information referred to in subsection (1) (e), rely on the information contained in any return furnished under Part 4 or such other information as the Corporation thinks fit. 14 Worker's registration day (1) For the purposes of section 13 (1) (h), the day on which a person becomes a registered worker (the worker's registration day) is— (a) if the person applies for registration under section 22 and the application is granted—the day on which the Corporation receives the application, or (b) if an employer of the person applies for registration of the person under section 23 and the application is granted—the day on which the Corporation receives the application, or (c) if the Corporation receives other information indicating the person is a worker as mentioned in section 25—the day the Corporation receives the information. (2) However, if the Corporation is satisfied the person was a worker for a period before the worker's registration day, the Corporation may nominate an earlier day as the day on which the person became a registered worker. (3) The Corporation must not nominate a day— (a) that is more than 2 full financial years before the person's registration day, unless the Corporation is satisfied special circumstances exist, and (b) in any event—that is earlier than 1 July 2011. 15 Inspection of registers An employer, a registered worker, or a person acting on behalf of the employer or registered worker, may inspect, and obtain a certified copy of, an entry in the register that relates to the employer or worker. Division 2 Registration of employers 16 Registration The Corporation may register a person as an employer on application by the person under section 17. 17 Application for registration by employers (1) In this section— prescribed period, in relation to an employer for the contract cleaning industry, means the following— (a) for a person who becomes an employer on or after the commencement of this Act—one month after becoming an employer, (b) for a person who is an employer immediately before the commencement of this Act—one month after that commencement. (2) An employer for the contract cleaning industry must apply to the Corporation for registration as an employer not later than the end of— (a) the prescribed period for the employer, or (b) such additional time as the Corporation allows. Maximum penalty—50 penalty units. (3) An application must be in the approved form. (4) The approved form may require an employer— (a) to state the following— (i) any name under which the employer is or has been engaged in the contract cleaning industry, (ii) any business address of the employer, (iii) any place a record mentioned in section 46 (Employers to keep records) may be inspected during normal business hours, and (b) to give other information or produce documents the Corporation considers are relevant to the administration of this Act. Note— The Corporation may require an applicant to provide further information or evidence—see section 98. 18 Dealing with applications for registration as an employer The Corporation must— (a) register a person who makes an application under section 17 as an employer for the contract cleaning industry if satisfied the person is an employer for that industry, or (b) in any other case—refuse to register the person as an employer. Note— See section 32 in relation to notification requirements concerning registration decisions and section 77 with respect to appeals. 19 Certificate of registration for employers (1) The Corporation must give each person registered as an employer for the contract cleaning industry a certificate of registration that includes— (a) the registration information mentioned in section 11 (Employers register), and (b) the employer's registration day for the person. (2) If satisfied that an employer's certificate of registration has been stolen, lost or destroyed, the Corporation must give the employer a replacement certificate of registration. (3) An employer's certificate of registration is evidence of the matters stated in the certificate. 20 Registered employer to notify change of details (1) If the details shown on a registered employer's certificate of registration change, the employer must, not later than 7 days after the change, give the Corporation written notice of the change. Maximum penalty—5 penalty units. (2) The Corporation must give the employer an amended certificate of registration. Division 3 Registration of workers 21 Registration (1) The Corporation may register a person as a worker— (a) on application by the person under section 22, or (b) on application by the person's employer under section 23, or (c) on the Corporation's own initiative under section 25. (2) A person who is registered within 6 months after the commencement of this Act (the foundation period) is to be entered on the register as a foundation worker. (3) In addition, the Corporation may enter a person who is registered (whether on application or on the Corporation's own initiative) more than 6 months after the commencement of this Act on the register as a foundation worker if the Corporation is satisfied that there are exceptional circumstances that warrant entry after the end of the foundation period. 22 Application for registration by workers (1) A person may apply to the Corporation for registration as a worker for the contract cleaning industry. Note— Workers who are registered within 6 months after the commencement of the Act are entered on the register as foundation workers and credited with 365 days of service. (2) An application under this section must be in the approved form. Note— The Corporation may require the applicant to provide further information or evidence—see section 99. 23 Application by employers for registration of employee (1) This section applies if a person who is not a registered worker is employed by an employer in the contract cleaning industry and does not apply for registration under section 22 before the end of 3 months after the day on which the person starts to work for the employer. (2) The employer must apply to the Corporation for registration of the employee as a worker for the contract cleaning industry within 14 days after the end of the 3-month period. Maximum penalty—20 penalty units. (3) The application must be in the approved form. Note— The Corporation may require the applicant to provide further information or evidence—see section 99. 24 Dealing with applications for registration as registered worker If an application is made under section 22 or 23 for registration of a person as a worker for the contract cleaning industry, the Corporation must— (a) if satisfied that the person is a worker for the contract cleaning industry (or is a worker for the contract cleaning industry who is eligible to be entered on the register as a foundation worker)—register the person as a worker for the industry (or as a foundation worker), or (b) in any other case—refuse to register the person as a worker for the industry. Note— See section 32 in relation to notification requirements concerning registration decisions and section 78 in relation to appeals against such decisions. 25 Corporation may register worker without application The Corporation may decide to register a person as a worker in the contract cleaning industry if— (a) the Corporation becomes aware of information (other than because of an application under this Part) indicating that the person is, or was, a worker for the industry, and (b) the Corporation is satisfied that the person should be registered as a worker for the industry. Note— The Corporation must give notice of the registration to the worker—see section 32. 26 Annual statements for workers (1) The Corporation must, as soon as practicable after 31 July in each year, place a statement on its website setting out the following information in relation to each registered worker— (a) the number of days of service, from the worker's registration day to the end of the previous financial year, with which the worker has been credited in the workers register, (b) the number of days of service that the worker has been credited with for the previous financial year, (c) the total ordinary remuneration paid to the worker during the previous financial year by a registered employer, (d) if the worker is a contractor—the total amount paid by the contractor under section 51 (Levy payments by registered contractors) for the previous financial year. (2) The Corporation must ensure that the annual statement relating to a registered worker referred to in subsection (1) may be readily accessed by the worker. (3) The Corporation must give a registered worker a written copy of the annual statement relating to the worker if requested to do so by the worker. 27 Registered worker to notify inaccuracies If the details shown on an annual statement relating to a registered worker under section 26 are inaccurate, the worker must, not later than 6 months after the statement is placed on the Corporation's website, give the Corporation written notice of the correct details. Division 4 Cancellation and suspension of registration 28 Cancellation of worker's registration (1) The Corporation may at any time cancel the registration of a 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. (2) The Corporation must cancel the registration of a registered worker if the person concerned has not been credited under this Act or a corresponding law with at least one day's service for 4 consecutive years. (3) For the purposes of subsection (2), any day prescribed by the regulations as a non-service day is to be treated as a day's service. (4) The Corporation must also cancel the registration of a worker— (a) on the making of any payment in accordance with section 63 (Entitlement to pro rata payment instead of leave in limited circumstances) in respect of the worker, or (b) at the request of the worker. (5) The cancellation of the registration of a registered worker under subsection (1) 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 section 80 is lodged against the cancellation within that period—on the date the appeal is withdrawn or the cancellation is confirmed. (6) If the registration of a person as a worker is cancelled under subsection (1) or (2)— (a) the person stops being a registered worker on the day the registration is cancelled, and (b) the person is not entitled to apply for, or to be paid an amount for long service leave for, any days of service entered in the register before the day the person stopped being a registered worker. (7) However, subsection (6) (b) does not apply if the person would, but for the person's ceasing to be registered, have been entitled to payment for a period under section 63 (Entitlement to pro rata payment instead of leave in limited circumstances). (8) Regulations may be made for or with respect to the refund of levies on cancellation of the registration of a worker. Note— See section 32 in relation to notification requirements concerning registration decisions and section 80 with respect to appeals against cancellation of a worker's registration. 29 Suspension of worker's registration (1) The Corporation may suspend the registration of a worker who has been credited with at least 1825 days of service in the register of workers if 1460 non-service days have elapsed since the last date in respect of which the worker was credited with service under this Act or under a corresponding law. (2) For the purposes of subsection (1), a non-service day is a day prescribed by the regulations as a non-service day for the purposes of this section. (3) The Corporation may restore a suspended registration at any time. (4) While the registration of a worker is suspended— (a) the worker is not to be credited in the workers register with any service under this Act (being service during the period of suspension), and (b) the Corporation is not required to give any annual statement under section 26 to the worker, and (c) subject to sections 62 (Prohibition on payments in lieu of leave) and 63— (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 workers register, 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 workers register. (5) An application under subsection (4) (c) (ii) may not be made more than 2 years after the date of suspension or the date of the worker's death (whichever is the later). (6) If a suspended registration is restored under subsection (3), any days' service under this Act that are credited to the worker as at the date of the suspension are to be restored. 30 Reinstatement of cancelled registration (1) The registration of a person as a worker that has been cancelled in accordance with section 28 may (if the person is eligible) be reinstated at any time within 6 years after the date of cancellation if the Corporation is satisfied that special circumstances exist warranting reinstatement of the person's registration. (2) The Corporation may reinstate the registration of a person as a worker that has been cancelled under section 28 (2) if the Corporation is satisfied that the person has been credited with a period of service under a corresponding law within the period of 4 years ending on the day on which the person's registration was cancelled. (3) If a person's registration as a worker is reinstated under this section, this Act applies in relation to the person as if the person's registration as a worker had not been cancelled. (4) This section does not affect any other right that a person whose registration has been cancelled may have to again become a registered worker. 31 Cancellation of employer's registration (1) The Corporation may at any time cancel the registration of an employer if it is satisfied that the person concerned is not an employer and that the person's application to become a registered employer should have been refused. (2) If a registered employer stops engaging workers to perform cleaning work in the contract cleaning industry, the registered employer may apply to the Corporation for cancellation of registration. (3) The application is to be in the approved form. (4) The Corporation must cancel the registration if it is satisfied that the person concerned has stopped engaging workers to perform cleaning work in the contract cleaning industry. (5) The person stops being a registered employer on the day the registration is cancelled but must pay any levy payable under section 50 that was due to the Corporation before that day. Note— See section 32 in relation to notification requirements concerning registration decisions and section 79 with respect to appeals. Division 5 Notices 32 Notice of registration decisions (1) The Corporation must, not later than 14 days after making a decision under this Part, give written notice of its decision to— (a) the applicant, or (b) if it has decided to register a person under this Part on its own initiative—the person registered, or (c) if it has cancelled the registration of a person—the person. (2) If the decision is to register a person as a worker, the notice must state the worker's registration day. (3) If the Corporation's decision is to refuse to register or to cancel the registration of the person, the notice must include— (a) an explanation for the decision, and (b) a statement of the effect of section 77, 78, 79 or 80 (as the case requires). Part 3 Service credits 33 Meaning of "engagement period" (1) An engagement period, for a worker who is an employee, is a period that— (a) starts on the day the person is engaged by an employer as a worker, and (b) stops on the day the person stops being engaged by an employer as a worker. (2) For the purposes of subsection (1), it is not relevant whether the employer who engages the person as a worker is the employer who stops engaging the person as a worker. (3) An engagement period, for a worker who is a contractor, is a period that— (a) starts on the day the person performs cleaning work as a contractor in the contract cleaning industry, and (b) stops on the day the person stops performing cleaning work as a contractor in the contract cleaning industry. (4) An engagement period, for a worker, is also taken to include any day that the person who is or was a worker did not perform cleaning work— (a) because of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1987, or (b) if the worker is an employee—because the worker had been dismissed by the person's employer to ensure that the person did not take long service leave during the worker's employment. 34 Service credit A registered worker is to be credited in the workers register with one day's service for each day (including a day when the worker does not perform cleaning work) in each engagement period. Note— See section 37 in relation to service credits for days when no cleaning work is performed. 35 Limitations on crediting service (1) Except as provided by section 36, a worker must not be credited in the workers register with a day's service unless the day is on or after the worker's registration day. (2) A worker must not be credited in the workers register with more than 365 days of service in a financial year, even if a particular financial year has 366 days. (3) The days of service a worker must be credited for in the workers register must be adjusted to ensure that the total number is not more than 365 days if— (a) for a financial year—a registered worker would otherwise be entitled to be credited with a number of days of service in the workers register and a further number of days of service in a like register or record kept under a corresponding law, and (b) the total number of days is more than 365 days. (4) The adjustment made under subsection (3) must be made when an application is made under this Act or a corresponding law for payment of long service leave for service that includes either or both of the number of days of service mentioned in subsection (3) (a), or at any other time the Corporation may decide. 36 Foundation worker service credit A registered worker whose name is entered on the workers register as a foundation worker is to be credited, on the day that the worker's name is entered in the register, with 365 days of recognised service for the purposes of this Act. Note— Days credited as recognised service are not counted as service for the purposes of the Long Service Leave Act 1955. 37 Service credit for bre