New South Wales: Community Services Sector (Portable Long Service Leave) Act 2024 (NSW)

Community Services Sector (Portable Long Service Leave) Act 2024 No 39 An Act to establish a scheme for the portability of long service leave for workers in the community services sector; and to make consequential amendments to other legislation. Part 1 Preliminary 1 Name of Act This Act is the Community Services Sector (Portable Long Service Leave) Act 2024. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions The dictionary in Schedule 3 defines words used in this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 4 Meaning of "community service work" and "community service" (1) In this Act, community service work means— (a) work to provide a community service, or (b) work for an employer, if the predominant purpose of the employer is to provide a community service. Note— Under section 7, the Minister may declare work or an activity to be or not be community service work. (2) In this Act, community service means a service— (a) specified in Schedule 1, or (b) prescribed by the regulations. (3) The regulations may amend Schedule 1 by— (a) inserting a service into the schedule, or (b) amending a service specified in the schedule. 5 Meaning of "worker" (1) In this Act, worker means a person who— (a) is engaged, on a full-time, part-time or casual basis, by an employer to do community service work as an employee, or (b) does community service work for another person for fee or reward on the person's own account, and is not an employee (a contractor), or (c) is in a class prescribed by the regulations. Note— Under section 7, the Minister may declare a person to be a worker, employee or contractor. (2) In this Act, worker does not include the following— (a) a person doing community service work under— (i) 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 (ii) a contract of service with the Commonwealth, the State or a local government authority, or (iii) a contract, whether or not a contract of service, with a corporation of which the person is a director, or (iv) a contract, whether or not a contract of service, with a trust of which the person is a trustee, (b) a person who is excluded by the regulations. 6 Meaning of "employer" (1) In this Act, employer means a person who— (a) employs 1 or more persons to do community service work, or (b) is in a class prescribed by the regulations. Note— Under section 7, the Minister may declare a person to be an employer. (2) A person is an employer only in relation to a person the employer employs to do community service work. (3) A person who supplies a person through a labour hire arrangement to do community service work is taken to be the employer who engages the person. (4) In this Act, employer does not include the following— (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. 7 Ministerial declarations about coverage of Act (1) The Minister may, by order published on the NSW legislation website, declare the following for the purposes of this Act— (a) work or an activity is or is not community service work, (b) a person is— (i) a worker, or (ii) an employee, or (iii) an employee of a particular employer, or (iv) a contractor, (c) a person is— (i) an employer, or (ii) an employer of a particular employee, or (iii) an employer with a predominant purpose of providing a community service. (2) The Interpretation Act 1987, sections 40 and 41 apply to an order under this section in the same way as the sections apply to statutory rules. 8 Community Services Sector Long Service Leave Committee (1) The Community Services Sector Long Service Leave Committee is constituted by this Act. (2) The Committee must consist of the following members— (a) the Secretary or a nominee of the Secretary, (b) 8 persons appointed by the Minister, as follows— (i) 2 persons nominated by a prescribed peak body representing workers, including workers in the community services sector, (ii) 2 persons nominated by a prescribed body representing workers in the community services sector, (iii) 2 persons nominated by a prescribed body representing employers in the community services sector, (iv) 2 persons nominated by another prescribed body representing employers in the community services sector. (3) The person specified in subsection (2)(a) must be the Chairperson of the Committee. (4) Schedule 2 contains provisions relating to the members and procedure of the Committee. Part 2 Registration of employers and workers Division 1 Registration of employers 9 Corporation must keep register of employers The Corporation must keep a register of persons who are registered as employers under this Act. 10 Registration of employers (1) The Corporation may, on application by a person, register the person as an employer. (2) A person must apply to the Corporation for registration as an employer within— (a) for a person who becomes an employer on or after the commencement of this Act—1 month after becoming an employer, or (b) for a person who is an employer immediately before the commencement of this Act—1 month after the commencement, or (c) a longer period specified by the Corporation. Maximum penalty—50 penalty units. (3) The Corporation must determine an application for registration of an employer by— (a) registering the person as an employer, if the Corporation is satisfied the person is an employer, or (b) refusing to register the person as an employer. 11 Information in employers register (1) The employers register must include the following information for each registered employer— (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 community services provided by the employer, (g) the day on which the Corporation received the person's application for registration, (h) if the person is no longer an employer—the day the person ceased being an employer. (2) The Corporation may include other information in the employers register the Corporation considers necessary for the administration of this Act. 12 Certificate of registration for employers (1) The Corporation must give each registered employer a certificate of registration that includes the information about the employer included in the employers register under section 11. (2) If the details shown on an employer's certificate of registration change, the employer must, within 7 days after the change, give the Corporation written notice of the change. Maximum penalty—5 penalty units. (3) An employer's certificate of registration is evidence of the matters stated in the certificate. Division 2 Registration of workers 13 Corporation must keep register of workers The Corporation must keep a register of persons who are registered as workers under this Act. 14 Registration of workers (1) The Corporation may register a person as a worker— (a) on application by the person, or (b) on application by the person's employer under subsection (2), or (c) on the Corporation's own initiative under subsection (4). (2) If a person does not apply for registration as a worker within 3 months after starting to do community service work for an employer, the employer must apply to the Corporation for registration of the person as a worker within 14 days after the end of the 3-month period. Maximum penalty—20 penalty units. (3) The Corporation must determine an application for registration of a worker by— (a) registering the person as a worker, or (b) refusing to register the person as a worker. (4) The Corporation may also register a person as a worker if the Corporation— (a) becomes aware of information, other than because of an application under this part, indicating the person is, or was, a worker, and (b) is satisfied the person should be registered as a worker. 15 Registration of foundation workers (1) A person who is registered as a worker within 6 months after the commencement of this Act must be registered as a foundation worker. (2) The Corporation may, on application or the Corporation's own initiative, also register a person as a foundation worker more than 6 months after the commencement of this Act if the Corporation is satisfied there are exceptional circumstances. 16 Worker's registration day (1) In this Act, worker's registration day means— (a) for a worker registered under section 14(1)(a) or (b)—the day on which the Corporation receives the application, or (b) for a worker registered under section 14(4)—the day the Corporation receives the information referred to in section 14(4)(a). (2) Despite subsection (1), 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 worker's registration day. (3) The Corporation must not nominate a day that is— (a) more than 2 financial years before the worker's registration day under subsection (1), unless the Corporation is satisfied there are special circumstances, or (b) before the commencement of this Act. 17 Information in workers register (1) The workers register must include the following information for each registered worker, or as much of the following information as the Corporation is reasonably able to obtain— (a) the worker's name, (b) if the worker is an employee—each employer for whom the employee works, (c) if the worker is a contractor—the worker's ABN, if any, (d) the number of days of service credited to the worker, (e) the total ordinary remuneration paid to the worker for community service work, (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 does community service work—the day on which the worker ceased doing community service work. (2) The Corporation may include in the workers register other information the Corporation considers necessary for the administration of this Act. (3) The Corporation may, in relation to the information required under subsection (1)(e), rely on any information the Corporation thinks fit, including information in a return submitted under Part 4. (4) The Corporation must, on request by a registered worker, give the worker information about the worker included in the register. 18 Annual information for workers (1) The Corporation must, as soon as practicable after 31 July each year, give each registered worker the following information about the financial year ending on 30 June in that year— (a) the number of days of service credited to the worker in the workers register for the financial year, (b) the number of days of service, from the worker's registration day to the end of the financial year, credited to the worker in the workers register, (c) the total ordinary remuneration paid to the worker during the financial year by a registered employer, (d) if the worker is a contractor—the total amount paid by the contractor under section 42 during the financial year. (2) A worker may, within 2 years after receiving the information, make an objection to the Corporation if the worker believes the worker should have been credited with more days of service in the workers register for the financial year. (3) The Corporation may determine an objection received more than 2 years after the worker receives the information if the Corporation is satisfied there are special circumstances. (4) The Corporation must determine the objection by— (a) dismissing the objection, or (b) allowing the objection and amending the number of days of service credited to the worker in the workers register for the financial year. Division 3 Cancellation and suspension of registration of workers 19 Cancellation of worker's registration (1) The Corporation may cancel a worker's registration if the Corporation is satisfied— (a) the person is not a worker, and (b) the person's application for registration as a worker should have been refused. (2) The Corporation must cancel a worker's registration if the person has not been credited under this Act or a corresponding law with at least 1 day's service for 4 consecutive years. (3) For subsection (2), a non-service day prescribed for section 20 must be treated as 1 day's service. (4) The Corporation must also cancel a worker's registration— (a) on the making of a pro rata payment under section 52 to the worker, or (b) at the worker's request. (5) The cancellation of a worker's registration under subsection (1) takes effect— (a) 42 days after the Corporation notifies the worker of the cancellation, or (b) if an appeal under section 68 is made against the cancellation within that period—on the date on which the appeal is withdrawn or the cancellation is confirmed. (6) If a worker's registration is cancelled under subsection (1) or (2)— (a) the person ceases 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 credited to the person in the workers register before the day the person ceased being a registered worker. (7) Subsection (6)(b) does not apply if the person would have been entitled to a pro rata payment under section 52, if the person's registration was not cancelled. (8) The regulations may provide for the refund of long service leave levies on cancellation of a worker's registration. 20 Suspension of worker's registration (1) The Corporation may suspend a worker's registration if— (a) the worker has been credited with at least 1,825 days of service in the workers register, and (b) 1,460 non-service days have elapsed since the last date for which the worker was credited with service under this Act or a corresponding law. (2) The Corporation may restore a suspended worker's registration at any time. (3) If the Corporation restores a suspended worker's registration under subsection (2), any days of service under this Act credited to the worker in the workers register at the date of suspension must be restored. (4) While a worker's registration is suspended— (a) the worker must not be credited with any service in the workers register during the period of suspension, and (b) the Corporation is not required to give information to the worker under section 18. (5) While a worker's registration is suspended, the worker is entitled to apply for and be paid a long service leave payment for any days of service credited to the worker in the workers register at the date of suspension. (6) If a worker has died, whether before or after the worker's registration was suspended, the deceased worker's personal representative may apply for and be paid any long service leave payment for any days of service credited to the worker in the workers register. (7) Subsections (5) and (6) are subject to section 52. (8) An application under subsection (6) may not be made more than 2 years, or a longer period prescribed by the regulations, after the later of— (a) the date of suspension, or (b) the date on which the worker died. (9) In this section— non-service day means a day prescribed by the regulations for subsection (1). 21 Reinstatement of cancelled worker's registration (1) The Corporation may, within 6 years after the cancellation of a worker's registration, reinstate the registration if the Corporation is satisfied there are special circumstances. (2) The Corporation may reinstate a worker's registration that was cancelled under section 19(2) if the Corporation is satisfied the worker has been credited with a period of service under a corresponding law within the period of 4 years before the registration was cancelled. (3) If a worker's registration is reinstated under this section, this Act applies in relation to the worker as if the registration had not been cancelled. (4) This section does not affect another right that a person whose registration has been cancelled may have to again become a registered worker. Division 4 Cancellation of registration of employers 22 Cancellation of employer's registration (1) The Corporation may cancel an employer's registration if the Corporation is satisfied— (a) the person is not an employer, and (b) the person's application for registration as an employer should have been refused. (2) If a registered employer ceases engaging any workers to do community service work, the registered employer may apply to the Corporation for cancellation of the employer's registration. (3) The Corporation must cancel the employer's registration if the Corporation is satisfied the person has ceased engaging any workers to do community service work. (4) The person ceases being a registered employer on the day the employer's registration is cancelled but must pay any long service leave levy that was due to the Corporation before that day. Division 5 General 23 Corporation may require further information about employers (1) The Corporation may, by written notice, require an applicant under section 10(2) to give the Corporation information or evidence the Corporation considers necessary to properly consider the application. (2) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (3) An applicant given a notice under subsection (1) must not, without reasonable excuse, fail to give the Corporation the information or evidence within the specified period. Maximum penalty for subsection (3)—40 penalty units. 24 Corporation may require further information about workers (1) The Corporation may, by written notice, require an applicant under section 14(1)(a) or (2) to give the Corporation information or evidence the Corporation considers necessary to properly consider the application. (2) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (3) The Corporation may refuse to grant an application under section 14 if the applicant fails, without reasonable excuse, to give the Corporation the information or evidence within the specified period. 25 Corporation may require further information about unregistered employers (1) This section applies if the Corporation believes a person is or was an employer, but is or was not a registered employer. (2) The Corporation may, by written notice, require the person to give the Corporation information or evidence the Corporation considers necessary to decide whether the person is or was an employer at the relevant time. (3) The notice must specify a reasonable time within which the information or evidence must be given to the Corporation. (4) The person must not, without reasonable excuse, fail to give the Corporation the information or evidence within the specified period. Maximum penalty for subsection (4)—40 penalty units. 26 Notice of registration decisions (1) The Corporation must, within 14 days after making a decision under this part, give written notice of the decision to the person to whom the decision relates. (2) Notice of a decision to register a person as a worker must specify the worker's registration day. (3) Notice of a decision to refuse to register or to cancel the registration of a person must include— (a) an explanation of the decision, and (b) the person's rights to appeal under Part 7. 27 Inspection of registers (1) The Corporation must, on request, give a registered employer, or a person acting on behalf of a registered employer, access to, and a certified copy of, an entry in the employers register that relates to the employer. (2) The Corporation must, on request, give a registered worker, or a person acting on behalf of a registered worker, access to, and a certified copy of, an entry in the workers register that relates to the worker. Part 3 Service credits 28 Meaning of "engagement period" (1) In this Act, engagement period, for a worker who is an employee, means the period— (a) starting on the day the person is engaged by an employer as a worker, and (b) ending on the day the person ceases being engaged by an employer as a worker. (2) For subsection (1), it is not relevant whether the employer who engages the worker is the employer who ceases engaging the worker. (3) In this Act, engagement period, for a worker who is a contractor, means the period— (a) starting on the day the person starts doing community service work as a contractor, and (b) ending on the day the person ceases doing community service work as a contractor. (4) In this Act, engagement period, for a worker, includes any day on which the worker did not do community service work— (a) because of incapacity for work for which the worker is entitled to compensation under the Workers Compensation Act 1987, or (b) for a worker who is an employee—because the worker had been dismissed by the worker's employer to ensure the worker did not take long service leave during the worker's employment. (5) The Corporation may, on request of an employer or worker, determine the day on which an engagement period starts or ends. 29 Service credits (1) A registered worker must be credited in the workers register with 1 day's service for each day, including a day when the worker does not do community service work, in each engagement period. (2) A registered worker must not be credited in the workers register with a day's service that occurs before the worker's registration day. (3) A registered 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. 30 Service credits under corresponding laws (1) This section applies if a registered worker is entitled to be credited with both— (a) a number of days of service in the workers register, and (b) a further number of days of service in a similar register or record kept under a corresponding law. (2) The days of service that must be credited to the registered worker in the workers register for a financial year must be adjusted to ensure the total number is not more than 365 days. (3) The adjustment made under subsection (2) must be made— (a) when an application is made under this Act or a corresponding law for payment of long service leave for the service under this Act or a corresponding law, or (b) at another time determined by the Corporation. 31 Foundation worker service credits Despite section 29, a worker who is registered as a foundation worker must be credited, on the day the worker is registered, with 365 days of recognised service. 32 Service credits for breaks in engagement periods The Corporation may, on application by a registered worker, credit the registered worker with 1 day's service in the workers register for each day of any period not exceeding 3 months during which the Corporation is satisfied that, because of circumstances prescribed by the regulations, the registered worker was not eligible to be credited with service under section 29. 33 Service credits for insolvent employers The Corporation may, on application by the registered worker or the administrator, credit a registered worker who is an employee with 1 day's service in the workers register for each day during which the employer is insolvent under administration, or a Chapter 5 body corporate, within the meaning of the Corporations Act 2001 of the Commonwealth. Part 4 Returns and records Division 1 Returns to Corporation about workers 34 Returns by employers (1) Within 14 days after the end of a return period, a person who is or was an employer during the return period must give the Corporation a return for the period. Maximum penalty—40 penalty units. (2) The return must specify the following for each worker who was an employee during the return period— (a) the total amount of ordinary remuneration paid by the employer to the worker during the return period for community service work done by the worker, (b) if the worker's engagement with the person started during the return period—the day on which the engagement period for the worker started, (c) if the worker's engagement with the person ended during the return period—the day on which the engagement period for the worker ended, (d) other information prescribed by the regulations. Maximum penalty—40 penalty units. (3) The person must, on the request of the Corporation, verify the information specified in the return in the way requested by the Corporation. Maximum penalty—40 penalty units. (4) The person must give notice to the Corporation about a change to information referred to in subsection (2) within 1 month after the change. Maximum penalty—40 penalty units. (5) This section does not require a person to record information about a worker who is the person's employee if the worker— (a) is not a registered worker, and (b) was not recorded as a worker in the person's return for the previous return period, and (c) did community service work for the person for less than 5 days during the current return period. 35 Exemption from giving returns to Corporation (1) An employer may apply to the Corporation for an exemption from the requirement to give the Corporation a return under section 34 in relation to a person who is, or was, engaged by the employer as a worker. (2) The Corporation may grant the exemption if the Corporation is satisfied— (a) the employer no longer engages the person to do community service work, or (b) the employer complies with, or makes contributions to, a scheme in another State or Territory about long service leave payments for workers that is similar to the scheme established by this Act in relation to the person. (3) The Corporation may, by written notice to the employer, revoke an exemption granted under subsection (2) if the Corporation is satisfied the exemption should no longer be granted. (4) If the Corporation refuses to grant an application for, or revokes, an exemption, the Corporation must give the employer written notice of the decision. (5) The notice must include— (a) an explanation of the decision, and (b) the employer's rights to appeal under Part 7. 36 Returns by contractors A contractor who is, or was, a registered worker during a return period must, within 14 days after the end of the return period, give the Corporation a return specifying the following information— (a) the number of days, or part days, during the return period on which the contractor did community service work, (b) the contractor's total ordinary remuneration for the community service work during the return period, (c) other information prescribed by the regulations. Maximum penalty—20 penalty units. Division 2 Review of ordinary remuneration of workers 37 Corporation may review ordinary remuneration of workers (1) This section applies if the Corporation considers that the total ordinary remuneration for a worker specified in a return given to the Corporation under section 34 or 36 for a return period may be insufficient or excessive because of the nature of the community service work done by the worker in the return period. (2) The Corporation must, by written notice to the relevant parties, invite written submissions in relation to the ordinary remuneration for the worker. (3) After considering written submissions received within 1 month of giving the notice under subsection (2), the Corporation must— (a) decide that the total ordinary remuneration specified in the return for the return period is reasonable, or (b) fix another amount as the total ordinary remuneration of the worker for the return period. (4) The Corporation must, within 14 days after making a decision under subsection (3), give written notice of the decision to the relevant parties. (5) If the Corporation decides to fix another amount as the total ordinary remuneration under subsection (3)(b), the notice must specify the following— (a) the total ordinary remuneration fixed by the Corporation for the return period, (b) a statement of the effect of section 38. (6) In this section— relevant party means— (a) in relation to a return under section 34— (i) the person who gave the return, and (ii) the worker, and (b) in relation to a return under section 36—the contractor. 38 Variation of ordinary remuneration (1) This section applies if the Corporation fixes an amount under section 37(3)(b) as the total ordinary remuneration of a worker or contractor who is a registered worker for a return period (the varied amount). (2) If the varied amount is more than the amount stated in the return for the return period (the returned amount), the employer or contractor must pay the Corporation the additional amount payable as the long service leave levy for the worker or contractor for the return period. (3) If the varied amount is less than the returned amount, the Corporation must— (a) if asked by the employer or contractor to refund the overpayment of the long service leave levy—refund the overpayment, or (b) otherwise—credit the overpayment against future amounts payable as a long service leave levy by the employer or contractor. (4) An employer or contractor who is required under subsection (2) to pay an additional amount must pay the amount within— (a) 1 month after the day on which the employer or contractor receives notice under section 37 of the Corporation's decision, or (b) the additional period determined by the Corporation. Maximum penalty for subsection (4)—20 penalty units. Division 3 Records about workers 39 Employers must keep records about employees (1) An employer must keep a written record of the following for each worker who is an employee— (a) the employee's name and date of birth, (b) the employee's telephone number and address, (c) if the employee is a registered worker—the registration number of the worker, (d) the nature of the community service work carried out by the employee, (e) the employee's ordinary remuneration for each return period, (f) the number of days worked by the employee in each return period, (g) the date when the employee started service with the employer, (h) long service leave granted to the employee, (i) if the employee ceases service with the employer—the date the employee ceases service, (j) a pro rata payment made under section 52 to the employee. Maximum penalty—20 penalty units. (2) An employer must keep a copy of the employment contract for each employee. Maximum penalty—20 penalty units. (3) An employer must keep the records about an employee under this section for 7 years after the day the employee ceases to be engaged by the employer. Maximum penalty—20 penalty units. 40 Contractors must keep records (1) A contractor who is registered as a worker must keep a written record of the following— (a) the nature of the community service work done by the contractor, (b) when and for whom community service work is done, (c) the contractor's ordinary remuneration for each return period, (d) the number of days worked by the contractor in each return period. Maximum penalty—20 penalty units. (2) The contractor must keep the written record for 7 years after the day the record is made. Maximum penalty—20 penalty units. Part 5 Long service leave levy 41 Determination of long service leave levy payable by employers and contractors (1) The amount of the long service leave levy payable by an employer on the ordinary remuneration for each worker engaged by the employer to do community service work is the percentage of the worker's ordinary remuneration determined by the Minister by order published on the NSW legislation website. (2) The amount of the long service leave levy payable by a contractor who is a registered worker is the percentage of the contractor's ordinary remuneration determined by the Minister by order published on the NSW legislation website. (3) The Corporation must, from time to time, give the Minister a written recommendation about the long service leave levy that should be payable by employers and contractors who are registered workers. (4) Before making an order under this section, the Minister must have regard to a recommendation from the Corporation under subsection (3), but is not required to follow the recommendation. (5) The Interpretation Act 1987, sections 40 and 41 apply to an order under this section in the same way as the sections apply to statutory rules. 42 Payment of long service leave levy by employers and contractors (1) A person who is, or was, an employer during a return period must, when the person gives the Corporation a return under section 34, pay to the Corporation the long service leave levy for the return period. Maximum penalty—20 penalty units. (2) A person who is, or was, a contractor registered as a worker during a return period must, when the person gives the Corporation a return under section 36, pay to the Corporation the long service leave levy for the return period. 43 Late payment of long service leave levy (1) A long service leave levy that is not paid at or before the time the levy is due bears compound interest at the rate prescribed by the regulations. (2) Interest forms part of, and may be recovered as, an unpaid long service leave levy. (3) If the Corporation is satisfied there are special circumstances, the Corporation may, by direction— (a) extend the time within which payment of all or part of a long service leave levy must be made, or (b) waive or reduce the amount of interest payable under subsection (1). (4) Subsection (3) has effect despite section 42. 44 Assessment of unpaid long service leave levy (1) If the Corporation reasonably believes a long service leave levy has not been fully paid, the Corporation may make an assessment of the amount owing. (2) The Corporation must give a notice of the assessment to the person to whom the assessment relates. (3) The notice must include— (a) an explanation of the decision, and (b) the person's rights to appeal under Part 7. 45 Collection of long service leave levies by authorised agents (1) The Corporation may enter into an agreement with an agent appointed by the Corporation for the collection of long service leave levies. (2) An agreement may provide for the payment of remuneration for the authorised agent from the Community Services Sector Long Service Leave Fund under the Long Service Corporation Act 2010, section 13A. Part 6 Long service leave Division 1 Entitlement to long service leave 46 Long service leave entitlements A registered worker is entitled to leave in accordance with this part. 47 Long service leave formula A registered worker's entitlement to long service leave is calculated according to the following formula— where— RS means the registered worker's number of days of recognised service to which the long service leave entitlement relates. W means the number of weeks of long service leave to which the registered worker is entitled. 48 Amount of long service leave (1) A registered worker who completes 2,555 days or more of recognised service after the commencement of this Act is entitled to 6.1 weeks of long service leave under this Act. (2) A registered worker who completes a further 365 days of recognised service after last becoming entitled to long service leave under this Act is entitled under this Act to— (a) 0.8667 weeks of long service leave for the additional 365 days of recognised service, and (b) a further 0.8667 weeks of long service leave for each subsequent 365 days of recognised service. 49 Employers must grant long service leave (1) If a registered worker becomes entitled to long service leave under this Act, the employer must grant the worker the long service leave within— (a) 6 months after the day on which the worker becomes entitled to the long service leave under this Act, or (b) if the Corporation has allowed, on application by the employer or worker, a period longer than 6 months—the period allowed by the Corporation, or (c) if the employer and worker agree on a period longer than 6 months and less than 5 years—the agreed period. Maximum penalty—50 penalty units. (2) If an employer and a worker agree on a period under subsection (1)(c), the employer must give written notice to the Corporation of the agreed period within 7 days after the agreement is reached. (3) Long service leave must not be granted for a period of less than 2 weeks. Division 2 Payments for long service leave 50 Payments for long service leave (1) A registered worker who has accrued long service leave under this Act may apply to the Corporation for payment for the long service leave. (2) The Corporation may require the registered worker to give the Corporation information or evidence the Corporation considers necessary to determine the application. (3) If the Corporation is satisfied the registered worker is entitled to long service leave under this Act, the Corporation must— (a) approve the application, and (b) pay to the registered worker the amount payable under section 54 or 55 as soon as practicable after the application is made. 51 No double payments for long service leave (1) A registered worker is not entitled to be paid for a day's service that is credited to the worker in the workers register if payment for the entitlement has already been made under this or another Act or an award. (2) In this section— award means an award, agreement or industrial instrument, under a law of the State or the Commonwealth, providing for payment of workers doing community service work. 52 Pro rata payments instead of long service leave in limited circumstances (1) Except as provided by this section, a registered worker must not be paid an amount instead of long service leave. (2) A registered worker who has 1,825 days of recognised service may apply to the Corporation for a pro rata payment instead of long service leave. (3) The Corporation may grant an application if the Corporation is satisfied— (a) the worker has permanently ceased doing community service work, and (b) 10 weeks, or a shorter period prescribed by the regulations, have passed since the day on which the worker permanently ceased doing community service work, and (c) the worker has not been credited with service in the workers register for any days in the 10-week period or the shorter period prescribed under paragraph (b). (4) The Corporation may also grant an application in circumstances prescribed by the regulations. (5) If the Corporation grants an application, the worker is entitled to a pro rata payment instead of long service leave for the number of weeks of long service leave calculated in accordance with this part. (6) A deceased worker's personal representative may apply to the Corporation under subsection (2) on behalf of the deceased worker. 53 Calculating payments for long service leave entitlements (1) For sections 50 and 52, the amount payable to a registered worker for, or instead of, long service leave is— (a) for any part of the entitlement to long service leave accrued as an employee—the amount calculated in accordance with section 54, and (b) for any part of the entitlement to long service leave accrued as a contractor—the amount calculated in accordance with section 55. (2) For subsection (1)— (a) long service leave must be taken in the reverse order in which the leave is accrued, and (b) if a pro rata payment instead of leave is being made—the payment is made in relation to the leave in the order in which the leave is accrued. 54 Long service leave payments to employees (1) For sections 50 and 52, the amount payable to an employee for long service leave for service accrued as a registered worker is the amount calculated using the following formula— where— D means the number of days of recognised service to which the amount payable relates. R is the highest of the weekly averages of the ordinary remuneration received by the registered worker during each of the following periods that applies to the worker— (a) the most recent 2 quarters of service as a registered worker before the designated day, (b) the most recent 4 quarters of service as a registered worker before the designated day, (c) the most recent 20 quarters of service as a registered worker before the designated day, (d) the most recent 28 quarters of service as a registered worker before the designated day. (2) In this section— designated day, for long service leave, means the following— (a) for a registered worker taking long service leave—the day the leave starts, (b) for a registered worker being paid pro rata instead of taking long service leave—the day the Corporation approves the application for payment. 55 Long service leave payments to contractors (1) For sections 50 and 52, the amount payable to a contractor who is a registered worker for long service leave for service accrued as a registered worker is the total of the following for the service— (a) the amount of the long service leave levy paid by the contractor to the Corporation under section 42, (b) interest at the rate determined by the Corporation under subsection (2), and calculated from the date of receipt of each amount paid under section 42 until the designated day for the long service leave. (2) The rate of interest must— (a) be calculated after the end of each financial year for the previous financial year, and (b) take into account the expenses incurred in administering the Corporation, and (c) be at least 75% of the rate of interest, expressed as a percentage, earned by the Corporation on the amount in the Fund and calculated in accordance with the regulations. (3) The Corporation may determine an interim rate of interest from time to time before the determination of the rate under subsection (2). (4) In this section— designated day, for long service leave, means the following— (a) for a registered worker taking long service leave—the day the leave starts, (b) for a registered worker being paid pro rata instead of taking long service leave—the day the Corporation approves the application for payment. Division 3 Other 56 Deemed minimum and maximum rates of pay (1) Despite section 54, the regulations may provide for the determination of minimum and maximum amounts for R for the purposes of the formula in that section. (2) The Minister must consult with the Committee before recommending the making of a regulation under this section. (3) The Committee must advise and make recommendations to the Minister on the operation of, and an amendment to or repeal of, a regulation made under this section. (4) If an amount of a long service leave payment to a registered worker under section 54 is, because of the operation of a regulation made under this section, less than the amount it would have been without the regulation, the Corporation must give the worker written notice that includes an explanation of the operation of the regulation. 57 Public holidays not to count as long service leave A period of long service leave taken by a registered worker is increased by 1 day for each public holiday during the period of leave. 58 Corporation may pay if employer insolvent (1) This section applies if— (a) the employer of a registered worker is or becomes insolvent under administration, or a Chapter 5 body corporate, within the meaning of the Corporations Act 2001 of the Commonwealth, and (b) the worker has an entitlement to long service leave under this Act. (2) The Corporation may pay to the worker, or the deceased worker's personal representative, the difference between— (a) the amount of the worker's long service leave entitlement under this Act, and (b) an amount the worker, or the deceased worker's personal representative, has received from the employer for the worker's long service leave entitlement under this Act. 59 Deferral of payment for long service leave entitlement (1) A person who applies for a payment for a long service leave entitlement may ask the Corporation to defer payment. (2) The Corporation may defer the payment for a period agreed between the person and the Corporation. 60 Corporation's liability limited to long service leave Despite the Corporation having paid, paying, or being liable to pay, an amount for a long service leave entitlement under this Act to a registered worker, the Corporation is not— (a) an employer of the registered worker, or (b) a person in a contractual relationship with the registered worker. Part 7 Appeals to Committee Division 1 General 61 Appeals (1) An appeal under this Act must be made within— (a) 21 days after the appellant is notified of the decision appealed against, or (b) another period prescribed by the regulations. (2) Subject to the regulations, the Committee may determine— (a) the way in which appeals must be made, and (b) the procedure for hearing and determining appeals. (3) The Committee may refer a matter that is the subject of an appeal to the Corporation for reconsideration at any time. (4) The Committee's determination of an appeal is taken to be the final decision of the Corporation and must be given effect to by the Corporation. (5) Despite subsection (4), in proceedings in a court, a plea of issue estoppel is not available in relation to an issue decided by the Committee. 62 Hearing and determination of appeals by 2 or more members (1) The Committee may determine that a particular appeal, or an appeal of a particular class, may be heard but not determined, or heard and determined, by a subcommittee consisting of 2 or more members of the Committee appointed by the Committee. (2) If an appeal is heard but not determined by a subcommittee, the determination of the appeal must be made by the Committee at a meeting at which a quorum is present. (3) If an appeal is heard and determined by a subcommittee, the determination of the appeal is taken to have been made by the Committee. (4) A subcommittee appointed by the Committee for this section must consist of— (a) at least 1 member of the Committee appointed under section 8(2)(b)(i) or (ii), and (b) at least 1 member of the Committee appointed under section 8(2)(b)(iii) or (iv). (5) The number of members on the subcommittee appointed under section 8(2)(b)(i) or (ii) must be equal to the number of members on the subcommittee appointed under section 8(2)(b)(iii) or (iv). 63 Notice of appeal decisions The Committee must give the appellant written notice of the Committee's decision on an appeal within 14 days after the decision is made. 64 Personal representative of deceased person may appeal on person's behalf (1) A reference in this part to a person who has a right to appeal under this part includes a deceased person's personal representative. (2) In this section— personal representative, of a deceased person, means— (a) for a person who died wholly or partially intestate—a person who appears to the Committee to be entitled to obtain a grant of letters of administration of the estate of the person, and (b) for a person who died testate—a person who appears to the Committee to be entitled to receive the relevant payment under the will of the person. Division 2 Rights of appeal 65 Appeal against refusal to register as employer (1) An applicant for registration as an employer may appeal to the Committee against a decision of the Corporation to refuse to register the applicant as an employer under section 10. (2) The Committee must determine the appeal by— (a) if the Committee is satisfied the applicant is an employer—directing the Corporation to register the person as an employer, or (b) otherwise—confirming the Corporation's decision. 66 Appeal against refusal to register as worker (1) An applicant for registration of a person as a worker may appeal to the Committee against a decision of the Corporation to refuse to register the person as a worker under section 14. (2) The Committee must determine the appeal by— (a) if the Committee is satisfied the person is a worker—directing the Corporation to register the person as a worker, or (b) otherwise—confirming the Corporation's decision. 67 Appeal against cancellation of employer's registration (1) A person may appeal to the Committee against a decision of the Corporation under section 22 to cancel the person's registration as an employer. (2) The Committee must determine the appeal by— (a) confirming the cancellation, or (b) quashing the Corporation's decision, if the Committee is satisfied— (i) for a cancellation under section 22(1)—the person is an employer and the person was registered as an employer in accordance with this Act, or (ii) for a cancellation under section 22(3)—the person has not ceased engaging any workers to do community service work. 68 Appeal against cancellation of worker's registration (1) A person may appeal to the Committee against a decision of the Corporation under section 19 to cancel the person's registration as a worker. (2) The Committee must determine the appeal by— (a) confirming the cancellation, or (b) quashing the Corporation's decision, if the Committee is satisfied— (i) for a cancellation under section 19(1)—the person is a worker and the person was registered as a worker in accordance with this Act, or (ii) for a cancellation under section 19(2)—the registered worker was entitled under this Act to be credited with service in the workers register during the period of 4 years immediately preceding the cancellation. (3) A person cannot appeal the cancellation of a worker's registration by the Corporation under section 19(4). 69 Appeal in relation to objection about service credits (1) A registered worker may appeal to the Committee against a dismissal by the Corporation of an objection made by the registered worker under section 18. (2) The Committee must determine the appeal by— (a) confirming the Corporation's decision, or (b) quashing the Corporation's decision and determining the objection in accordance with this Act. 70 Appeal in relation to exemption from giving returns (1) An employer may appeal to the Committee against a decision of the Corporation to refuse to grant an exemption to the employer, or revoke an exemption granted to the employer, under section 35. (2) The Committee must determine the appeal by— (a) directing the Corporation to grant or reinstate the exemption, or (b) confirming the Corporation's decision. 71 Appeal in relation to late payment of long service leave levies (1) A person who is aggrieved by a decision of the Corporation to give, or refuse to give, a direction under section 43(3) may appeal to the Committee. (2) The Committee must determine the appeal by— (a) confirming the Corporation's decision, or (b) if the Committee considers the Corporation's decision unreasonable having regard to the circumstances notified to the Corporation when the decision was made—giving directions to the Corporation the Committee considers appropriate. 72 Appeal against long service leave levy assessment (1) A person who is aggrieved by a decision of the Corporation in relation to an assessment under section 44 may appeal to the Committee. (2) The Committee must determine the appeal by— (a) confirming the Corporation's decision, or (b) quashing the Corporation's decision. 73 Appeal in relation to deemed minimum and maximum rates of pay (1) A person who has received written notice under section 56 and is dissatisfied with the calculation of the long service leave payment may appeal to the Committee. (2) The Committee must determine the appeal by— (a) confirming the calculation of the long service leave payment, or (b) setting the calculation aside and substituting a new calculation. Part 8 Inspectors Division 1 Preliminary 74 Definition In this part— premises includes the whole or part of a building, structure or place, whether built on or not. 75 Authorisation of inspectors (1) The Corporation may authorise a person or class of persons to be an inspector for this Act. (2) Subject to the terms of an inspector's authorisation, an inspector has the functions conferred or imposed on an inspector by or under this Act. (3) An inspector is subject to the control and direction of the Corporation. (4) The Corporation must issue each inspector with identification. (5) When exercising a function of an inspector under this Act, the inspector must, if requested to do so by a person affected by the exercise of the function, produce to the person the inspector's identification. Division 2 Powers of entry 76 Power to enter premises (1) An inspector may enter premises at any time for the following purposes— (a) determining whether any workers under this Act are engaged at the premises, (b) determining whether there has been compliance with, or a contravention of, this Act or the regulations. (2) Entry may be effected under this Act by an inspector— (a) with the use of reasonable force, and (b) with assistance the inspector considers necessary. (3) This part does not empower an inspector to enter a part of premises used only for residential purposes without— (a) the permission of the occupier, or (b) the authority of a search warrant. 77 Search warrants (1) An inspector may apply to an authorised officer for the issue of a search warrant for premises if the inspector believes on reasonable grounds that— (a) a provision of this Act or the regulations is being or has been contravened at the premises, or (b) there is in or on the premises a matter or thing connected with an offence under this Act or the regulations. (2) An authorised officer to whom an application is made may, if satisfied there are reasonable grounds, issue a search warrant authorising an inspector named in the warrant to— (a) enter the premises, and (b) exercise a function of an inspector under this part. (3) The Law Enforcement (Powers and Responsibilities) Act 2002, Part 5, Division 4 applies to a search warrant issued under this section. (4) In this section— authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. 78 Powers to inspect and seize things (1) An inspector may, on premises lawfully entered, do anything the inspector considers necessary for the purposes of this part, including the following— (a) carrying out surveillance activities, (b) examining and inspecting the premises or an article or thing on the premises, (c) making examinations and inquiries the inspector considers necessary, (d) requiring records and other documents required to be kept for this Act or the regulations to be produced for inspection, (e) examining and inspecting records or other documents, (f) copying records or other documents, (g) seizing a thing if the inspector has reasonable grounds for believing the thing is connected with an offence under this Act or the regulations, (h) doing anything else the inspector is empowered to do under this part. (2) The power to seize a thing connected with an offence includes a power to seize— (a) a thing for or with which the offence has been committed, and (b) a thing providing evidence of the commission of the offence, and (c) a thing used for the purposes of committing the offence. (3) A person may be required to produce a document under this part only if the document is— (a) in the person's possession, or (b) within the person's power to obtain lawfully. (4) In this section, a reference to an offence includes a reference to an offence that there are reasonable grounds for believing has been committed. 79 Dealing with seized things (1) If an inspector seizes a thing on premises under section 78, the inspector must give the person apparently in charge of the premises a written receipt for the seized thing. (2) An inspector may keep a thing seized under section 78 until the completion of proceedings in which the thing may be evidence. (3) A record may be kept under subsection (2) only if the person from whom the record was seized is, within a reasonable time after the seizure, given a copy of the record certified by the inspector as a true copy. (4) Subsection (2) ceases to have effect in relation to a thing seized if, on the application of a person affected by the seizure, the court in which proceedings referred to in that subsection are commenced so orders. 80 Assistance to be given to inspectors (1) An inspector may, by written notice to the owner or occupier of premises, require the owner or occupier to give the reasonable assistance specified in the notice for the purposes of exercising the inspector's functions under this part in relation to the premises. (2) The notice may specify— (a) the time within which the assistance must be given, and (b) the way in which the assistance must be given. Division 3 Powers to require information 81 Power to require production of employee records (1) An inspector may, by written notice given to an employer or other person who the inspector reasonably believes has possession, custody or control of the employer's records kept under section 39, require the employer or person to produce specified records at a specified time and place. (2) An inspector may— (a) inspect a record produced in response to the notice, and (b) take copies of or extracts from, or make notes from, a record produced in response to the notice. (3) An employer does not contravene a provision of this Act if the employer is unable to comply with the provision because an inspector kept possession of a record under this section or section 82. 82 Power to take possession of records to be used as evidence (1) An inspector to whom a record is produced under section 81 may take possession of the record if the inspector considers it necessary for the purpose of obtaining evidence or protecting evidence from destruction. (2) If an inspector takes possession of a record under this section, the record may be kept by the inspector until the completion of proceedings, including proceedings on appeal, in which the record may be evidence. (3) The person from whom the record was taken must, within a reasonable time after the record is taken, be given a copy of the record certified by an inspector as a true copy. (4) A copy of a record given under this section is, as evidence, of equal validity to the record of which it is certified to be a copy. Division 4 Other 83 Offences (1) A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an inspector under this part. Maximum penalty—50 penalty units. (2) A person must not wilfully obstruct, delay or hinder an inspector in the exercise of the inspector's functions under this part. Maximum penalty—50 penalty units. (3) A person must not refuse to allow an inspector to enter premises the inspector may lawfully enter under this part. Maximum penalty—50 penalty units. 84 Provisions relating to requirements to give records or information or answer questions (1) A person is not guilty of an offence of failing to comply with a requirement under this part to give records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence. (2) A person is not excused from a requirement under this part to give records or information or to answer a question on the ground that the