New South Wales: 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 not apply in respect of light duty work performed during a financial year that commenced more than 3 years after the date of the relevant injury. (6) A registered worker who in any financial year performed unpaid work in the nature of building and construction work on a residential building (being a building constructed or acquired by the worker solely for the purpose of subsequent sale by the worker) 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 unpaid work while unemployed during that year. (7) Without limiting the power of the Corporation to determine a number of days' service to be equivalent, for the purposes of an entitlement under this section, to a number of full days in a period during which such an entitlement arises, the Corporation may, in the case of any such period that is greater than one week, determine that two-thirds of the number of days in the period is the proper service equivalent. (8) Entitlements under this section must be claimed by the registered worker concerned, who must make out the claim to the satisfaction of the Corporation. (9) This section has effect subject to section 24. 24 Limitations on and adjustments of service credits (1) A person shall not be credited in the register of workers with any day's service in the building and construction industry unless that day was on or after the date, shown in that register, on which the person became a registered worker. (2) A registered worker shall not be credited in the register of workers with more than 220 days' service in the building and construction industry in respect of any financial year. (2A) Where— (a) in respect of any financial year a registered worker would, but for this subsection, be entitled to be credited in the register of workers kept under this Act with a period of service and to be credited in a record of building and construction workers' service kept under a corresponding law with another period of service, and (b) those periods of service together amount to more than 220 days, the period of service with which the worker may be credited in the register of workers kept under this Act shall be adjusted as prescribed. (2B) The adjustment referred to in subsection (2A) shall be made— (a) on the making of an application under this Act or under a corresponding law for a long service payment to be made or a long service benefit to be paid in respect of a period of service that includes either or both of the periods of service referred to in that subsection, or (b) at such other times as the Corporation may decide. (3) Where— (a) a long service payment is made to a person as a result of an application made under section 28 (1) by virtue of the person's having fulfilled the requirements specified in section 28 (1) (c) or (d), or (b) a long service benefit is paid to a person as a result of an application made under a provision of a corresponding law that corresponds to section 28 (1) by virtue of the person's having fulfilled requirements similar to those so specified, the person shall not be credited in the register of workers with any day's service in respect of building and construction work performed by that person during that period of 12 months immediately following the date of that application. (4) Section 32, however, applies to each day's service referred to in subsection (3) as though it had been credited to the worker. (6) A service credit that, calculated in accordance with section 22 or 23, results in a number of days consisting of a whole number plus a fraction is to be adjusted to the next succeeding whole number. 25 Notice to registered workers of service credits (1) The Corporation shall, as soon as practicable after 31 July in each year, serve on each person who on 30 June in that year was a registered worker a notice— (a) specifying the number of days' service in the building and construction industry, as shown in the register of workers, with which that registered worker has, in accordance with this Division, been credited in respect of the year ended on that 30 June, and (b) specifying the total number of days' service in the building and construction industry with which that registered worker has, in accordance with this Division, been credited. (2) Any person on whom a notice is served under subsection (1) may, within 6 months after the service of the notice, lodge with the Corporation an objection against the accuracy of the notice in relation to the number of days specified in the notice pursuant to subsection (1) (a). (3) The Corporation shall determine an objection lodged pursuant to subsection (2) and the determination of the Corporation shall, subject to any determination made by the Committee in an appeal under Part 6, be final and conclusive. (4) Where no objection is lodged pursuant to subsection (2) in relation to a notice or any objection so lodged is determined under subsection (3), the Corporation shall not consider any other objection relating to the accuracy of the notice unless— (a) the objection is lodged with the Corporation within 2 years after the date of the work, activity or circumstance to which the objection relates, or (b) the Corporation considers that special circumstances warrant its doing so. (5) Nothing in this section requires the Corporation to serve notice on a person who the Corporation has reason to believe is no longer to be found at the address last entered in the register of workers as the person's place of residence or business and for whom no other address for service (including any destination for electronic transmission) is known to the Corporation. (6) Without limiting the generality of subsection (5), notice is not required to be served on a person for whom no more current address is known if the last 2 notices sent by the Corporation by post to the address last entered in the register of workers as the person's place of residence or business have been returned to the sender. (7) Despite subsection (1), the Corporation is not required to serve a notice on a person— (a) whose registration has been cancelled (whether before or after the 30 June to which the notice relates), or (b) whose registration, in the opinion of the Corporation, is likely to be cancelled before the following 30 June. (8) However, if the Corporation has, by reason of subsection (7) (b), not served a notice on a person and by that following 30 June the person's registration has not been cancelled, the Corporation must, as soon as possible, ensure that the relevant notice is served on the person. 26 (Repealed) Part 4 Long service payments 27 Definition (1) In this Part— prescribed retiring age means— (a) except as provided by paragraph (b)—the age of 55 years, or (b) in respect of any registered worker belonging to a class or description of registered workers specified in a regulation made for the purpose of this definition—such age, being an age under 55 years, as may be specified in the regulation as the prescribed retiring age. (2) (Repealed) 28 Entitlement to long service payments (1) A person who is a registered worker having service credits in the register of workers may apply to the Corporation in the approved form for a long service payment if— (a) the person has completed 10 years' service as a worker, (b) (Repealed) (c) the person has completed 5 years' service as a worker and satisfies the Corporation that he or she has permanently ceased to perform building and construction work, (d) the person has completed 55 days' service as a worker and, having attained the prescribed retiring age, satisfies the Corporation that he or she has permanently ceased to perform building and construction work, (e) the person has completed 55 days' service as a worker and a registered medical practitioner has certified the person to be totally and permanently incapacitated for building and construction work, (f) the person has completed 5 years' service as a worker since the person— (i) first became entitled to apply for a long service payment by virtue of paragraph (a), or (ii) would have become so entitled but for the operation of any provision of section 31, whether or not any such payment was made, or (g) the person has completed 5 years' service as a worker since the person— (i) last became entitled to apply for a long service payment under paragraph (f), or under any previous application of this paragraph, or (ii) would have become so entitled but for the operation of any provision of section 31, whether or not any such payment was made. (2) The personal representative of a person who died having service credits in the register of workers may apply to the Corporation in the approved form for a long service payment if— (a) the person was, immediately before death, entitled to apply for a long service payment by virtue of subsection (1) (a), (f) or (g), (b) the person had, immediately before the date of death, completed 10 or more years' service as a worker, or (c) the person had, immediately before that date, completed at least 55 days' service as a worker but was not a worker referred to in paragraph (a) or (b). (3) A payment made by the Corporation in respect of an application under subsection (2) is valid and effectual against any demand in respect of the payment by any other person. (3A) If payment is made in respect of an application under subsection (2), before the grant of letters of administration of the estate, to the personal representative of a person who died intestate, the personal representative holds the payment subject to the same trusts as if he or she had obtained such a grant. (3B) A payment must not be made in respect of an application under subsection (2) after evidence has been produced to the Corporation of the grant of letters of administration of the estate, or probate of the will, of the deceased person, except to the person who has obtained the letters of administration or probate of the will (as appropriate). (4) In this section— (a) a reference to service as a worker is a reference to service as a worker in New South Wales or to service as a worker partly in New South Wales and partly in one or more reciprocating States or Territories, and (b) a reference to a period of service, in relation to a person, does not include a period of service in respect of which the person has previously received a long service payment by virtue of subsection (1) (c), (d) or (e) or a corresponding provision of the former Act or has previously received a long service benefit by virtue of a corresponding provision of a corresponding law. (5) In this section, personal representative, in relation to a payment in respect of a person who has died, means— (a) in the case of a person who died wholly or partially intestate—any person who appears to the Corporation to be entitled to obtain a grant of letters of administration of the estate of the person, and (b) in the case of a person who died testate—any person who appears to the Corporation to be entitled to receive the relevant payment under the will of the person. 29 Amount of long service payment (1) As soon as practicable after an application is made to the Corporation under section 28 (1) or (2), the Corporation shall, subject to subsection (2) and section 30, pay to the applicant a long service payment calculated in accordance with the following formula— (2) Where a long service payment payable under subsection (1) is payable in respect of a registered worker who is or, immediately before the registered worker's death, was a foundation worker, that long service payment is the first such payment payable in respect of that registered worker (whether under this Act or the former Act) and the application for the payment was made under— (a) section 28 (1) (a), (f) or (g) or (2) (a) or (b), the payment under subsection (1) shall be increased by an amount calculated in accordance with the following formula— (b) section 28 (1) (c) or (2) (c), the payment under subsection (1)— (i) shall be increased by an amount calculated in accordance with the following formula— (ii) where the registered worker has more than 5 years' service credits in the register of workers—shall be further increased in accordance with the following formula— (c) section 28 (1) (d) or (1) (e), the payment under subsection (1) shall be increased by an amount calculated in accordance with the following formula— (3) For the purposes of the formulae in subsections (1) and (2)— LSP represents the amount of the long service payment, I represents the amount of the increase or the further increase, as the case may be, S represents the number of days' service with which the registered worker in respect of whom the application is made is credited in the register of workers at the date the application is lodged with the Corporation or, if the worker so requests, at a date after which an entitlement under section 28 (1) first arose, P represents, at the date applicable in S— (a) in the case of a registered worker who, in the opinion of the Corporation, performed work under a contract of employment during the whole or a majority of the relevant period before that date—the amount of ordinary pay that is, in the opinion of the Corporation— (i) payable for the classification of the registered worker under the award fixing a rate of pay for that work, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (ii) payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (iii) if the registered worker is a person referred to in paragraph (c) (i) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers under the supervision of the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (iv) if the registered worker is a person referred to in paragraph (c) (ii) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers for whom the registered worker has responsibility in his or her capacity as a clerk of works, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (b) in any other case—an amount that is determined by the Corporation as the appropriate amount of ordinary pay at that date in respect of work on 5 working days during hours in which ordinary pay is payable and that is calculated by reference to either of the following rates— (i) the rate of ordinary pay that is, in the opinion of the Corporation, payable under an award for work that is equivalent (or substantially equivalent) to the type of work carried out by the registered worker, or (ii) another rate of ordinary pay that is, in the opinion of the Corporation, appropriate to the type of work carried out by the registered worker. (4) A reference in subsection (3) in the matter relating to P to the relevant period before any date is a reference to the last period of 55 working days before the date during which the registered worker performed building and construction work. (5) A reference in subsection (3) in the matter relating to P to the hours in which ordinary pay is payable is a reference to a maximum of 38 hours per week or such other period as is prescribed by the regulations. 30 Long service payment not payable in certain cases (1) The Corporation shall not pay to an applicant referred to in section 28 (1) (c) or (d) a long service payment unless the Corporation is satisfied that the applicant has permanently ceased work in the building and construction industry. (2) A registered worker is not entitled to apply for or to be paid a long service payment in respect of any day's service credited to the registered worker in the register of workers if a long service payment under this Act or the former Act or a payment under section 32 of this Act or under section 19D of the former Act has been made in respect of that day. (3) A registered worker is not entitled to any benefits under section 29 (2) if a payment under section 32 of this Act or under section 19D of the former Act has been made to an employer in respect of that registered worker. 30A Long service leave (1) While leave from employment is not an entitlement under this Act, nothing in this Act precludes a registered worker and his or her employer from entering into an agreement by which the worker is afforded a period of unpaid leave. (2) A period of any such unpaid leave may be calculated by reference to the provisions of the Long Service Leave Act 1955 or in such other manner as may be agreed. (3) Leave taken in accordance with this section is taken, for the purposes of section 4 (11) (a1) (i) of the Long Service Leave Act 1955, to constitute an absence of the worker under the terms of the worker's employment. 31 Benefits under other laws (1) A payment to which a person becomes entitled under this Act or the former Act in respect of any period of service in the building and construction industry is to be reduced, in accordance with this section, in consequence of any benefit (including any long service leave taken in advance) due to and taken by the person under an approved long service leave scheme calculated in respect of the same period (in this section referred to as an alternative benefit). (2) A person is not entitled to a payment based on service credits accrued in a period of service in respect of which the person has taken an alternative benefit, except as provided by this section. (3) A person who, as a consequence of the bankruptcy or liquidation of his or her employer, has taken an alternative benefit in respect of a period of service and who makes application in accordance with subsection (4) is entitled to a payment from the Corporation equal to the difference, if any, by which the alternative benefit taken falls short of the payment (calculated in respect of the same period of service) to which the person would have been entitled under this Act if the person had not taken the alternative benefit. (4) An application for the purposes of subsection (3) must be made to the Corporation within 3 months after the alternative benefit was taken or within such further time as may be allowed by the regulations. (5) Subsection (2) does not affect the value of any service credit for the purposes of calculating a payment to which a person is entitled under this Act for service in the building and construction industry in a period subsequent to a period in respect of which the person has taken an alternative benefit. (6) A registered worker, or the personal representative of a registered worker, who is paid any long service payment under this Act or the former Act is not, in respect of any period by reference to which that payment was calculated, entitled to any benefits under an approved long service leave scheme. (7) In this section, approved long service leave scheme means— (a) the provisions of the Long Service Leave Act 1955 or of a law of a reciprocating State or Territory that, in the opinion of the Corporation, corresponds to that Act, or (b) a scheme in respect of which an exemption has been granted under section 5 (2) (a) of that Act or under a provision of a law of a reciprocating State or Territory that, in the opinion of the Corporation, corresponds to that paragraph. 31A Payment of alternative benefits to be notified An employer who intends to pay any alternative benefit referred to in section 31 (1) to or in respect of an employee employed (or who was employed) by the employer in building and construction work must notify the Corporation of that intention before making the payment. Maximum penalty—20 penalty units. 32 Payments to employers (1) Where— (a) a person is provided with any alternative benefits referred to in section 31 (1) in respect of any period of service in the building and construction industry, and (b) that person— (i) was, when those benefits were provided, a registered worker, or (ii) is the personal representative of a person who, when the person died, was a registered worker, the Corporation shall, upon application therefor made in writing within 12 months after those benefits were provided or within such longer period (not exceeding 2 years) as the Corporation may in any particular case allow, pay to the employer who provided those benefits an amount calculated in accordance with the following formula— where— EP represents the amount to be paid to that employer, S represents the number of days' service with which the worker was credited in the register of workers in respect of a period during which the worker was employed under a contract of employment by the employer, and for which the alternative benefits were provided, increased by 275 where that period commenced on the appointed day within the meaning of the former Act, P represents, at the date the application is lodged with the Corporation— (a) in the case of a registered worker who, in the opinion of the Corporation, performed work under a contract of employment during the whole or a majority of the relevant period before that date—the amount of ordinary pay that is, in the opinion of the Corporation— (i) payable for the classification of the registered worker under the award fixing a rate of pay for that work, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (ii) payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (iii) if the registered worker is a person referred to in paragraph (c) (i) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers under the supervision of the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (iv) if the registered worker is a person referred to in paragraph (c) (ii) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers for whom the registered worker has responsibility in his or her capacity as a clerk of works, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (b) in any other case—an amount that is determined by the Corporation as the appropriate amount of ordinary pay at that date in respect of work on 5 working days during hours in which ordinary pay is payable and that is calculated by reference to either of the following rates— (i) the rate of ordinary pay that is, in the opinion of the Corporation, payable under an award for work that is equivalent (or substantially equivalent) to the type of work carried out by the registered worker, or (ii) another rate of ordinary pay that is, in the opinion of the Corporation, appropriate to the type of work carried out by the registered worker. (2) A reference in subsection (1) in the matter relating to P to the relevant period before any date is a reference to the last period of 55 working days before that date during which the registered worker performed building and construction work. (2A) A reference in subsection (1) in the matter relating to P to the hours in which ordinary pay is payable is a reference to a maximum of 38 hours per week or such other period as is prescribed by the regulations. (3) Notwithstanding subsection (1), an employer is not entitled to be paid under this section— (a) a greater amount in respect of a person than the value of the alternative benefits, referred to in section 31 (1), provided by the employer in respect of that person, calculated by reference to the same period as the payment under this section is calculated, and (b) an amount in respect of any day's service with which a worker has been credited in the register of workers if a long service payment or a payment under this section or section 19D of the former Act has been made in respect of that day. (3A) Despite subsection (3), for the purposes of the formula in subsection (1), S is not to include the number of any days' service with which the worker was credited in the register of workers that was notified to the Corporation in a certificate under section 20 that was furnished more than 2 years after the time required by that section. This subsection does not have effect until 1 July 2011. (4) Despite section 19, an employer is entitled to be paid, in respect of a registered worker whose registration has been cancelled under section 19, any amount that the employer would have been entitled to be paid under this section if that registration had not been so cancelled. 32A Entitlement to long service benefit for service in a reciprocating State or Territory (1) A person who is a registered worker may apply to the Corporation in the approved form for the payment by the Corporation of a long service benefit calculated in accordance with the provisions of the corresponding law of a reciprocating State or Territory if— (a) the person— (i) has completed a period of service as a worker in that State or Territory or partly in that State or Territory and partly in New South Wales, and (ii) by virtue of having completed that service, is entitled under a provision of that corresponding law to a long service benefit payable in or reducible to cash, and (b) the person would, if all of that service had been performed in New South Wales, have been entitled to apply for a long service payment by virtue of section 28 (1). (2) The personal representative of a deceased registered worker who, immediately before death, was entitled to apply for the payment of a long service benefit under subsection (1) may apply to the Corporation in the approved form for that payment to be made. (3) A person who, in or in support of an application made under subsection (1) or (2), makes a statement that is, to that person's knowledge, false or misleading in a material particular is guilty of an offence and liable to a penalty not exceeding 50 penalty units. (4) As soon as practicable after receiving an application made under subsection (1) or (2), the Corporation shall, on being satisfied that the applicant is entitled under the relevant corresponding law to the payment of a long service benefit and on being authorised by the corresponding authority to make that payment, pay to the applicant the amount of that benefit calculated in accordance with that law. (4A) A payment made by the Corporation in respect of an application under subsection (2) is valid and effectual against any demand in respect of the payment by any other person. (4B) If payment is made in respect of an application under subsection (2), before the grant of letters of administration of the estate, to the personal representative of a registered worker who died intestate, the personal representative holds the payment subject to the same trusts as if he or she had obtained such a grant. (4C) A payment must not be made in respect of an application under subsection (2) after evidence has been produced to the Corporation of the grant of letters of administration of the estate, or probate of the will, of the deceased registered worker, except to the person who has obtained the letters of administration or probate of the will (as appropriate). (5) An application for the payment of an amount under this section may be included in an application for a long service payment under section 28 if the periods of service to which that payment relates are consecutive and not interrupted by an interval exceeding that prescribed for the purposes of this subsection. (6) Where the Corporation makes a payment under this section, the Corporation must, as soon as practicable after making that payment, take all appropriate steps to secure the reimbursement of the amount of that payment by the corresponding authority of the reciprocating State or Territory concerned. (7) Where under a provision of a corresponding law that corresponds to this section the corresponding authority pays to a person an amount that, but for the payment, would have been payable as a long service payment under this Act— (a) the obligation of the Corporation to make that long service payment to that person is discharged, and (b) the Corporation shall, as soon as practicable after being notified of the payment and if satisfied that the payment was properly made, reimburse the corresponding authority accordingly. (8) The payment of an amount by the Corporation under subsection (7) shall be made in accordance with such terms and conditions (if any) as are specified in the agreement entered into under section 55 (1) with respect to the State or Territory in which the relevant corresponding authority is established. (9) In this section, personal representative, in relation to a payment in respect of a deceased registered worker, means— (a) in the case of a person who died wholly or partially intestate—any person who appears to the Corporation to be entitled to obtain a grant of letters of administration of the estate of the person, and (b) in the case of a person who died testate—any person who appears to the Corporation to be entitled to receive the relevant payment under the will of the person. 32B Deemed minimum and maximum rates of pay (1) Despite sections 29 and 32, the regulations may make provision for the determination of minimum and maximum amounts for P for the purposes of the formulae in those sections. (2) The Minister is to consult with the Committee before recommending the making of a regulation under this section. (3) The Committee is