New South Wales: Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 (NSW)

Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 No 122 An Act to establish a scheme for portability of long service leave in the contract cleaning industry; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010. 2 Commencement This Act commences on 1 July 2011. 3 Definitions (1) In this Act— approved form means in the form approved by the Corporation. cleaning work—see section 4. Committee means the Contract Cleaning Industry Long Service Leave Committee constituted by section 9. contract cleaning industry means— (a) in relation to New South Wales—the industry in which employers provide cleaning work, and minor property maintenance work that is incidental or peripheral to such cleaning work, to other people through the provision of workers' services, and (b) in relation to a reciprocating State or Territory—the contract cleaning industry within the meaning of the corresponding law of the State or Territory. contractor means a person (other than an employee) who— (a) performs work for another person for fee or reward on the person's own account, or (b) is declared to be a contractor for the contract cleaning industry under section 8. Corporation means the Long Service Corporation constituted under the Long Service Corporation Act 2010. corresponding law means a law of another State or a Territory that makes provision with respect to long service leave and that is declared by the regulations to be a corresponding law. day, in relation to a worker, means 24 hours or such other period as is prescribed by the regulations as a day for a worker. employee—see section 5. employer—see section 6. employers register means the register referred to in section 11. employer's registration day—see section 12. engagement period for a registered worker—see section 33. exercise a function includes perform a duty. foundation worker—see section 21 (2) and (3). function includes a power, authority or duty. Fund means the Contract Cleaning Industry Long Service Leave Fund maintained under the Long Service Corporation Act 2010. inspector means a person authorised under section 86 to be an inspector for the purposes of Part 8. levy means the long service leave levy imposed under Part 5. long service leave formula—see section 57. ordinary remuneration for a person means the amount paid or payable to the person for cleaning work, other than any amounts for the following— (a) overtime, (b) expenses incurred by the person, (c) the use of materials, equipment or a motor vehicle provided by the person. premises includes the whole or any part of a building, structure or place, whether built on or not. reciprocal authority means the entity under a corresponding law that administers the scheme of long service benefits established by that law. reciprocating State or Territory means a State or Territory with which a reciprocal agreement within the meaning of section 112 is in force. recognised service, for a registered worker, means the total number of days for all engagement periods entered in the workers register for the worker. registered employer means an employer who is registered as an employer under Part 2. registered worker means a person who is registered as a worker under Part 2. Note— A worker may be a contractor or an employee. return period means— (a) a 3-month period, ending at the end of 31 March, 30 June, 30 September or 31 December in any year, during which a worker performs cleaning work, or (b) such other period as may be prescribed by the regulations. Secretary means the Secretary of the Department of Finance, Services and Innovation. service, for a registered worker for the contract cleaning industry, means service in the industry. worker—see section 7. workers register means the register referred to in section 13. worker's registration day—see section 14. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "cleaning work" (1) Cleaning work is— (a) work that has, as its only or main component, the bringing of premises into, or maintaining premises in, a clean condition, or (b) work, or an activity, declared to be cleaning work under section 8. (2) Without limiting subsection (1) (a), work referred to in that paragraph includes the collection of trolleys (other than trolley collection of a kind described by the regulations) and hygiene and pollution control. 5 Meaning of "employee" (1) A person is an employee for the contract cleaning industry if the person is— (a) employed by an employer for that industry, or (b) declared to be an employee for that industry under section 8. (2) In this section— employed includes employed as— (a) a full-time employee, or (b) a part-time employee, or (c) a casual employee. 6 Meaning of "employer" (1) An employer for the contract cleaning industry is a person who— (a) employs one or more persons to perform cleaning work in that industry, or (b) is declared to be an employer for that industry under section 8. (2) The following are not employers for the purposes of subsection (1)— (a) the Commonwealth, (b) the State, (c) a local government authority, (d) a company whose only workers are directors, if each of the directors participates in the management of the company or shares its profits, (e) a person to whom subsection (1) (a) applies who is excluded by the regulations from being an employer. 7 Meaning of "worker" (1) A worker for the contract cleaning industry is a person who— (a) is engaged by an employer under a contract of service to perform cleaning work in the industry, or (b) is a contractor who performs cleaning work in the industry. (2) A worker includes a person who is engaged both to perform cleaning work and to supervise other workers in the contract cleaning industry, whether or not the person is known as a supervisor, leading hand or another title. (3) However, worker does not include a person who performs work in the contract cleaning industry— (a) whose only or main duties are managerial or clerical, or (b) under a contract of service with a partnership if the person is a partner and participates in the management of the partnership or shares the profits, or (c) under a contract of service with the Commonwealth, the State or a Territory or a local government authority, or (d) under a contract, whether or not the contract is a contract of service, with a corporation of which the person is a director, or (e) under a contract, whether or not the contract is a contract of service, with a trust of which the person is a trustee. 8 Declaration by Minister—coverage of Act (1) The Minister may, by order published on the NSW legislation website, declare that for this Act— (a) a person is an employer for the contract cleaning industry, or (b) a person is a contractor for that industry, or (c) a person is an employee, or an employee of a stated employer, for that industry, or (d) work, or an activity, is cleaning work. (2) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order under this section in the same way as those sections apply to statutory rules. 9 Constitution of Long Service Leave Committee (1) There is constituted by this Act the Contract Cleaning Industry Long Service Leave Committee. (2) The Committee is to consist of the following members— (a) the Secretary or a nominee of the Secretary, (b) 2 persons appointed by the Minister, on the nomination of Unions NSW, to represent that body, (c) 2 persons appointed by the Minister, on the nomination of United Workers Union (NSW Branch), to represent that body, (d) 2 persons appointed by the Minister, on the nomination of the Building Service Contractors Association, to represent that body, (e) 2 persons appointed by the Minister who, in the opinion of the Minister, have knowledge of, and experience in, the contract cleaning industry. (3) The person referred to in subsection (2) (a) is to be the Chairperson of the Committee. (4) If a nomination referred to in subsection (2)(b), (c) or (d) is not made by a body within such time as the Minister allows, the Minister may appoint a person the Minister considers suitable to represent that body in place of the person required to be so nominated. (5) Schedule 1 contains provisions relating to members of the Committee. Part 2 Registration Division 1 The registers 10 Corporation must keep registers (1) The Corporation must keep the following registers under this Act— (a) an employers register, (b) a workers register. (2) Subject to this Act, the registers are to be kept in the form and manner, and are to contain such particulars, as the Corporation determines. 11 Employers register (1) The Corporation is to enter the following information in the employers register in relation to a person it registers as an employer for the contract cleaning industry— (a) the employer's name, (b) the employer's trading name (if any), (c) the employer's ABN (if any), (d) the address of the employer's principal place of business, (e) if the employer is a corporation— (i) the address of the corporation's registered office, and (ii) the corporation's ACN, (f) the employer's registration day, (g) if the person is no longer an employer—the day the person stopped being an employer. (2) The Corporation may enter in the register any other information it considers necessary for the administration of this Act. 12 Employer's registration day For the purposes of section 11 (1) (f), the day on which a person becomes a registered employer (the employer's registration day) is the day on which the Corporation received the application for registration under section 17. 13 Workers register (1) The Corporation is to enter the following information (or so much of it as it has or is reasonably able to obtain) in the workers register in relation to a person it registers as a worker for the contract cleaning industry— (a) the worker's name (entered, in the case of a foundation worker, as the name of a foundation worker), (b) if the worker is an employee—each employer for whom the employee works, (c) if the worker is a contractor—the person's ABN (if any), (d) the number of days of service with which the worker is credited under this Act, (e) the total ordinary remuneration of the worker for work performed by the worker, (f) the worker's entitlement to long service leave, (g) details of the long service leave granted to, or taken by, the worker, or payment instead of long service leave made to the worker, under this Act or the Long Service Leave Act 1955, (h) the worker's registration day, (i) if the worker no longer performs cleaning work in the contract cleaning industry—the day that he or she stopped performing such work. (2) The Corporation may enter in the register any other information it considers necessary for the administration of this Act. (3) The Corporation may, for the purposes of entering in the workers register the information referred to in subsection (1) (e), rely on the information contained in any return furnished under Part 4 or such other information as the Corporation thinks fit. 14 Worker's registration day (1) For the purposes of section 13 (1) (h), the day on which a person becomes a registered worker (the worker's registration day) is— (a) if the person applies for registration under section 22 and the application is granted—the day on which the Corporation receives the application, or (b) if an employer of the person applies for registration of the person under section 23 and the application is granted—the day on which the Corporation receives the application, or (c) if the Corporation receives other information indicating the person is a worker as mentioned in section 25—the day the Corporation receives the information. (2) However, if the Corporation is satisfied the person was a worker for a period before the worker's registration day, the Corporation may nominate an earlier day as the day on which the person became a registered worker. (3) The Corporation must not nominate a day— (a) that is more than 2 full financial years before the person's registration day, unless the Corporation is satisfied special circumstances exist, and (b) in any event—that is earlier than 1 July 2011. 15 Inspection of registers An employer, a registered worker, or a person acting on behalf of the employer or registered worker, may inspect, and obtain a certified copy of, an entry in the register that relates to the employer or worker. Division 2 Registration of employers 16 Registration The Corporation may register a person as an employer on application by the person under section 17. 17 Application for registration by employers (1) In this section— prescribed period, in relation to an employer for the contract cleaning industry, means the following— (a) for a person who becomes an employer on or after the commencement of this Act—one month after becoming an employer, (b) for a person who is an employer immediately before the commencement of this Act—one month after that commencement. (2) An employer for the contract cleaning industry must apply to the Corporation for registration as an employer not later than the end of— (a) the prescribed period for the employer, or (b) such additional time as the Corporation allows. Maximum penalty—50 penalty units. (3) An application must be in the approved form. (4) The approved form may require an employer— (a) to state the following— (i) any name under which the employer is or has been engaged in the contract cleaning industry, (ii) any business address of the employer, (iii) any place a record mentioned in section 46 (Employers to keep records) may be inspected during normal business hours, and (b) to give other information or produce documents the Corporation considers are relevant to the administration of this Act. Note— The Corporation may require an applicant to provide further information or evidence—see section 98. 18 Dealing with applications for registration as an employer The Corporation must— (a) register a person who makes an application under section 17 as an employer for the contract cleaning industry if satisfied the person is an employer for that industry, or (b) in any other case—refuse to register the person as an employer. Note— See section 32 in relation to notification requirements concerning registration decisions and section 77 with respect to appeals. 19 Certificate of registration for employers (1) The Corporation must give each person registered as an employer for the contract cleaning industry a certificate of registration that includes— (a) the registration information mentioned in section 11 (Employers register), and (b) the employer's registration day for the person. (2) If satisfied that an employer's certificate of registration has been stolen, lost or destroyed, the Corporation must give the employer a replacement certificate of registration. (3) An employer's certificate of registration is evidence of the matters stated in the certificate. 20 Registered employer to notify change of details (1) If the details shown on a registered employer's certificate of registration change, the employer must, not later than 7 days after the change, give the Corporation written notice of the change. Maximum penalty—5 penalty units. (2) The Corporation must give the employer an amended certificate of registration. Division 3 Registration of workers 21 Registration (1) The Corporation may register a person as a worker— (a) on application by the person under section 22, or (b) on application by the person's employer under section 23, or (c) on the Corporation's own initiative under section 25. (2) A person who is registered within 6 months after the commencement of this Act (the foundation period) is to be entered on the register as a foundation worker. (3) In addition, the Corporation may enter a person who is registered (whether on application or on the Corporation's own initiative) more than 6 months after the commencement of this Act on the register as a foundation worker if the Corporation is satisfied that there are exceptional circumstances that warrant entry after the end of the foundation period. 22 Application for registration by workers (1) A person may apply to the Corporation for registration as a worker for the contract cleaning industry. Note— Workers who are registered within 6 months after the commencement of the Act are entered on the register as foundation workers and credited with 365 days of service. (2) An application under this section must be in the approved form. Note— The Corporation may require the applicant to provide further information or evidence—see section 99. 23 Application by employers for registration of employee (1) This section applies if a person who is not a registered worker is employed by an employer in the contract cleaning industry and does not apply for registration under section 22 before the end of 3 months after the day on which the person starts to work for the employer. (2) The employer must apply to the Corporation for registration of the employee as a worker for the contract cleaning industry within 14 days after the end of the 3-month period. Maximum penalty—20 penalty units. (3) The application must be in the approved form. Note— The Corporation may require the applicant to provide further information or evidence—see section 99. 24 Dealing with applications for registration as registered worker If an application is made under section 22 or 23 for registration of a person as a worker for the contract cleaning industry, the Corporation must— (a) if satisfied that the person is a worker for the contract cleaning industry (or is a worker for the contract cleaning industry who is eligible to be entered on the register as a foundation worker)—register the person as a worker for the industry (or as a foundation worker), or (b) in any other case—refuse to register the person as a worker for the industry. Note— See section 32 in relation to notification requirements concerning registration decisions and section 78 in relation to appeals against such decisions. 25 Corporation may register worker without application The Corporation may decide to register a person as a worker in the contract cleaning industry if— (a) the Corporation becomes aware of information (other than because of an application under this Part) indicating that the person is, or was, a worker for the industry, and (b) the Corporation is satisfied that the person should be registered as a worker for the industry. Note— The Corporation must give notice of the registration to the worker—see section 32. 26 Annual statements for workers (1) The Corporation must, as soon as practicable after 31 July in each year, place a statement on its website setting out the following information in relation to each registered worker— (a) the number of days of service, from the worker's registration day to the end of the previous financial year, with which the worker has been credited in the workers register, (b) the number of days of service that the worker has been credited with for the previous financial year, (c) the total ordinary remuneration paid to the worker during the previous financial year by a registered employer, (d) if the worker is a contractor—the total amount paid by the contractor under section 51 (Levy payments by registered contractors) for the previous financial year. (2) The Corporation must ensure that the annual statement relating to a registered worker referred to in subsection (1) may be readily accessed by the worker. (3) The Corporation must give a registered worker a written copy of the annual statement relating to the worker if requested to do so by the worker. 27 Registered worker to notify inaccuracies If the details shown on an annual statement relating to a registered worker under section 26 are inaccurate, the worker must, not later than 6 months after the statement is placed on the Corporation's website, give the Corporation written notice of the correct details. Division 4 Cancellation and suspension of registration 28 Cancellation of worker's registration (1) The Corporation may at any time cancel the registration of a worker if it is satisfied that the person concerned is not a worker and that the person's application to become a registered worker should have been refused. (2) The Corporation must cancel the registration of a registered worker if the person concerned has not been credited under this Act or a corresponding law with at least one day's service for 4 consecutive years. (3) For the purposes of subsection (2), any day prescribed by the regulations as a non-service day is to be treated as a day's service. (4) The Corporation must also cancel the registration of a worker— (a) on the making of any payment in accordance with section 63 (Entitlement to pro rata payment instead of leave in limited circumstances) in respect of the worker, or (b) at the request of the worker. (5) The cancellation of the registration of a registered worker under subsection (1) takes effect— (a) on the expiration of the period of 42 days after the Corporation notifies the registered worker of the cancellation, or (b) if an appeal under section 80 is lodged against the cancellation within that period—on the date the appeal is withdrawn or the cancellation is confirmed. (6) If the registration of a person as a worker is cancelled under subsection (1) or (2)— (a) the person stops being a registered worker on the day the registration is cancelled, and (b) the person is not entitled to apply for, or to be paid an amount for long service leave for, any days of service entered in the register before the day the person stopped being a registered worker. (7) However, subsection (6) (b) does not apply if the person would, but for the person's ceasing to be registered, have been entitled to payment for a period under section 63 (Entitlement to pro rata payment instead of leave in limited circumstances). (8) Regulations may be made for or with respect to the refund of levies on cancellation of the registration of a worker. Note— See section 32 in relation to notification requirements concerning registration decisions and section 80 with respect to appeals against cancellation of a worker's registration. 29 Suspension of worker's registration (1) The Corporation may suspend the registration of a worker who has been credited with at least 1825 days of service in the register of workers if 1460 non-service days have elapsed since the last date in respect of which the worker was credited with service under this Act or under a corresponding law. (2) For the purposes of subsection (1), a non-service day is a day prescribed by the regulations as a non-service day for the purposes of this section. (3) The Corporation may restore a suspended registration at any time. (4) While the registration of a worker is suspended— (a) the worker is not to be credited in the workers register with any service under this Act (being service during the period of suspension), and (b) the Corporation is not required to give any annual statement under section 26 to the worker, and (c) subject to sections 62 (Prohibition on payments in lieu of leave) and 63— (i) the worker is entitled to apply for and be paid any long service payment in respect of any days' service then credited to the worker in the workers register, and (ii) if the worker has died (whether before or after the worker's registration was suspended)—the personal representative of the worker is entitled to apply for and be paid any long service payment in respect of any days' service then credited to the worker in the workers register. (5) An application under subsection (4) (c) (ii) may not be made more than 2 years after the date of suspension or the date of the worker's death (whichever is the later). (6) If a suspended registration is restored under subsection (3), any days' service under this Act that are credited to the worker as at the date of the suspension are to be restored. 30 Reinstatement of cancelled registration (1) The registration of a person as a worker that has been cancelled in accordance with section 28 may (if the person is eligible) be reinstated at any time within 6 years after the date of cancellation if the Corporation is satisfied that special circumstances exist warranting reinstatement of the person's registration. (2) The Corporation may reinstate the registration of a person as a worker that has been cancelled under section 28 (2) if the Corporation is satisfied that the person has been credited with a period of service under a corresponding law within the period of 4 years ending on the day on which the person's registration was cancelled. (3) If a person's registration as a worker is reinstated under this section, this Act applies in relation to the person as if the person's registration as a worker had not been cancelled. (4) This section does not affect any other right that a person whose registration has been cancelled may have to again become a registered worker. 31 Cancellation of employer's registration (1) The Corporation may at any time cancel the registration of an employer if it is satisfied that the person concerned is not an employer and that the person's application to become a registered employer should have been refused. (2) If a registered employer stops engaging workers to perform cleaning work in the contract cleaning industry, the registered employer may apply to the Corporation for cancellation of registration. (3) The application is to be in the approved form. (4) The Corporation must cancel the registration if it is satisfied that the person concerned has stopped engaging workers to perform cleaning work in the contract cleaning industry. (5) The person stops being a registered employer on the day the registration is cancelled but must pay any levy payable under section 50 that was due to the Corporation before that day. Note— See section 32 in relation to notification requirements concerning registration decisions and section 79 with respect to appeals. Division 5 Notices 32 Notice of registration decisions (1) The Corporation must, not later than 14 days after making a decision under this Part, give written notice of its decision to— (a) the applicant, or (b) if it has decided to register a person under this Part on its own initiative—the person registered, or (c) if it has cancelled the registration of a person—the person. (2) If the decision is to register a person as a worker, the notice must state the worker's registration day. (3) If the Corporation's decision is to refuse to register or to cancel the registration of the person, the notice must include— (a) an explanation for the decision, and (b) a statement of the effect of section 77, 78, 79 or 80 (as the case requires). Part 3 Service credits 33 Meaning of "engagement period" (1) An engagement period, for a worker who is an employee, is a period that— (a) starts on the day the person is engaged by an employer as a worker, and (b) stops on the day the person stops being engaged by an employer as a worker. (2) For the purposes of subsection (1), it is not relevant whether the employer who engages the person as a worker is the employer who stops engaging the person as a worker. (3) An engagement period, for a worker who is a contractor, is a period that— (a) starts on the day the person performs cleaning work as a contractor in the contract cleaning industry, and (b) stops on the day the person stops performing cleaning work as a contractor in the contract cleaning industry. (4) An engagement period, for a worker, is also taken to include any day that the person who is or was a worker did not perform cleaning work— (a) because of incapacity for an injury for which the worker is entitled to compensation under the Workers Compensation Act 1987, or (b) if the worker is an employee—because the worker had been dismissed by the person's employer to ensure that the person did not take long service leave during the worker's employment. 34 Service credit A registered worker is to be credited in the workers register with one day's service for each day (including a day when the worker does not perform cleaning work) in each engagement period. Note— See section 37 in relation to service credits for days when no cleaning work is performed. 35 Limitations on crediting service (1) Except as provided by section 36, a worker must not be credited in the workers register with a day's service unless the day is on or after the worker's registration day. (2) A worker must not be credited in the workers register with more than 365 days of service in a financial year, even if a particular financial year has 366 days. (3) The days of service a worker must be credited for in the workers register must be adjusted to ensure that the total number is not more than 365 days if— (a) for a financial year—a registered worker would otherwise be entitled to be credited with a number of days of service in the workers register and a further number of days of service in a like register or record kept under a corresponding law, and (b) the total number of days is more than 365 days. (4) The adjustment made under subsection (3) must be made when an application is made under this Act or a corresponding law for payment of long service leave for service that includes either or both of the number of days of service mentioned in subsection (3) (a), or at any other time the Corporation may decide. 36 Foundation worker service credit A registered worker whose name is entered on the workers register as a foundation worker is to be credited, on the day that the worker's name is entered in the register, with 365 days of recognised service for the purposes of this Act. Note— Days credited as recognised service are not counted as service for the purposes of the Long Service Leave Act 1955. 37 Service credit for breaks in engagement periods (1) The Corporation may, on application by a registered worker, credit the worker with one 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 of a kind described by the regulations, the worker was not eligible to be credited with service under section 34. (2) The application is to be in the approved form. 38 Service credit—insolvent employer (1) The Corporation may credit an employee who is registered as a worker with one day's service in the workers register for each day during which the person's employer is insolvent under administration, or a Chapter 5 body corporate, within the meaning of the Corporations Act 2001 of the Commonwealth, on application by the worker or the administrator. (2) The application is to be in the approved form. Part 4 Returns and records Division 1 Returns 39 Returns by employers (1) Within 14 days after the end of a return period, a person who is or was an employer for the contract cleaning industry during the return period must give to the Corporation a return in the approved form for the period. Maximum penalty—40 penalty units. (2) For each worker who is an employee of the person during the return period, the return must include the following— (a) the total amount of ordinary remuneration paid by the employer to the worker during the period for cleaning work performed by the worker, (b) if the worker's engagement with the person began during the period—the day on which the engagement period for the worker began, (c) if the worker's engagement with the person ended during the period—the day on which the engagement period for the worker ended, (d) any other information required by the regulations. Maximum penalty—40 penalty units. (3) If asked by the Corporation, the person must verify the information contained in the return in the way asked by the Corporation including, if asked, by statutory declaration. Maximum penalty—40 penalty units. (4) An employer must give notice to the Corporation about a change to information mentioned in subsection (2) within 14 days after the change. Maximum penalty—40 penalty units. (5) This section does not require a person to record any information in respect of a worker who is an employee of the person who— (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) performed work for the person for less than 5 days during the current return period. 40 Exemption from lodging return (1) An employer may apply to the Corporation for an exemption from the requirement to lodge a return under section 39 in relation to a person who is, or was, engaged by the employer as a worker. (2) The application must be in the approved form. (3) The Corporation may grant the exemption if the Corporation is satisfied that— (a) the employer no longer engages the person to perform cleaning work, or (b) the employer complies with, or makes contributions to, a similar scheme in another State or a Territory about long service leave payments for persons performing cleaning work to that established by this Act in relation to the person. (4) The Corporation may, by notice in writing to the employer, revoke an exemption granted under subsection (3) if the Corporation is satisfied the exemption should no longer be given. (5) If the Corporation refuses to grant an application for, or revokes, an exemption, the Corporation must give the employer written notice of its decision. (6) The notice must include— (a) an explanation for the decision, and (b) a statement of the effect of section 81. 41 Returns by contractors who are registered workers (1) A contractor who is, or was, a registered worker during a return period must give the Corporation a return in the approved form containing the required information not later than 14 days after the end of the return period. Maximum penalty—20 penalty units. (2) In this section— required information, for a contractor for a return period, means— (a) the number of days, or part days, during the return period on which the contractor performed work, and (b) the contractor's total ordinary remuneration for the work during the return period, and (c) any other information prescribed by the regulations. Division 2 Review of ordinary remuneration 42 Review of ordinary remuneration by Corporation (1) This section applies if the Corporation considers that the total ordinary remuneration for a worker stated in a return given to the Corporation under section 39 or 41 for a return period may be insufficient or excessive because of the nature of the work performed by the worker in the return period. (2) The Corporation must give the following people a notice advising them that they may make a submission in relation to the ordinary remuneration— (a) for a return under section 39—the employer who gave the return and the employee, (b) for a return under section 41—the contractor. (3) A submission must be made to the Corporation in writing within one month after the notice is given. (4) After considering a submission (if any) made in accordance with this section, the Corporation may— (a) decide that the total ordinary remuneration stated 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. 43 Notice of Corporation's decision on review of remuneration (1) The Corporation must, not later than 14 days after it makes a decision under section 42, give written notice of the decision to— (a) for a decision relating to a return under section 39—the employer who gave the return and the employee, or (b) for a decision relating to a return under section 41—the contractor. (2) If the decision is to fix another amount under section 42 (4) (b), the notice must include— (a) the total ordinary remuneration fixed by the Corporation for the return period, and (b) a statement of the effect of sections 44 and 45. 44 Effect of variation of ordinary remuneration (1) The following provisions apply if the Corporation fixes an amount under section 42 (4) (b) as the total ordinary remuneration of a worker for a return period (the varied amount) other than the amount stated for that worker for that period by the worker's employer in a return under section 39 (the returned amount)— (a) if the varied amount is more than the returned amount, the employer must pay the Corporation the additional amount payable under section 48 (Determination of levy—employers) for the worker for that return period, (b) if the varied amount is less than the returned amount, the Corporation must— (i) if asked by the employer to refund the overpayment of the levy payable under section 50—refund the overpayment, or (ii) in any other case—credit the overpayment against future amounts payable under that section by the employer. (2) The following provisions apply if the Corporation fixes an amount under section 42 (4) (b) as the total ordinary remuneration of a contractor who is a registered worker for a return period (the varied amount) other than the amount stated for that period by the contractor in a return under section 41 (the returned amount)— (a) if the varied amount is more than the returned amount, the contractor must pay the Corporation the additional amount payable under section 49 (Determination of levy—contractors) for the contractor for that return period, (b) if the varied amount is less than the returned amount, the Corporation must— (i) if asked by the contractor to refund the overpayment of the levy payable under section 51—refund the overpayment, or (ii) in any other case—credit the overpayment against future amounts payable under that section by the contractor. 45 Variation of ordinary remuneration An employer or contractor who is required by section 44 to pay an additional amount must pay the amount not later than— (a) one month after the day on which the person receives notice under section 43 of the Corporation's decision, or (b) the end of any additional time the Corporation allows. Maximum penalty—20 penalty units. Division 3 Records 46 Employers to keep records (1) An employer for the contract cleaning industry must keep— (a) a written record showing the relevant particulars for each employee who performs cleaning work for the employer, and (b) a copy of the employment contract for each employee. Maximum penalty—20 penalty units. (2) An employer must keep the written record for 7 years after the day the employee stops being employed by the employer. Maximum penalty—20 penalty units. (3) In this section— relevant particulars means the following— (a) the employee's name and date of birth, (b) if the employee is a registered worker—the registration number of the worker, (c) the nature of the work carried out by the employee, (d) the employees's ordinary remuneration for each return period, (e) the number of days worked by the employee in each return period, (f) the date when the employee began service with the employer, (g) long service leave granted to the employee, (h) if the employee stops service with the employer—the date the employee stops service, (i) payment made instead of long service leave under section 63 (Entitlement to pro rata payment instead of leave in limited circumstances) to an employee who stops service. 47 Registered contractors to keep records (1) A contractor who is registered as a worker for the contract cleaning industry must keep a written record of the following— (a) the contractor's name and date of birth, (b) the nature of the work performed by the contractor, (c) when and for whom work is performed, (d) the contractor's ordinary remuneration for each return period, (e) 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. 47A Power to require production of employee records (1) An inspector may give a written notice to an employer or other person who the inspector reasonably believes has possession, custody or control of the employer's records requiring the employer or person to produce the employer's records specified in the notice at the time and place specified in the notice. (2) An inspector may— (a) inspect a record produced in response to a notice under this section, and (b) take copies of or extracts from, or make notes from, a record. (3) An employer does not contravene a provision of this Act if the employer is unable to comply with the provision because an inspector retained possession of a record or document under this section. 47B Power to take possession of records to be used as evidence (1) An inspector to whom a record is produced under this Part may take possession of the record if the inspector considers it necessary to do so 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 retained 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 be provided, within a reasonable time after the record is taken, with a copy of the record certified by an inspector as a true copy. (4) A copy of a record provided under this section is, as evidence, of equal validity to the record of which it is certified to be a copy. Part 5 Long service leave levy 48 Determination of levy—employers (1) The amount of levy payable by each employer for the contract cleaning industry on the ordinary remuneration for each worker engaged by the employer to perform cleaning work is the percentage of the employee's ordinary remuneration determined by the Minister from time to time by order published on the NSW legislation website. (2) The Corporation must, from time to time, recommend in writing to the Minister the levy that should be payable by employers. (3) Before making an order, the Minister must have regard to any recommendation made under subsection (2), but need not follow it. (4) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order under this section in the same way as those sections apply to statutory rules. 49 Determination of levy—contractors (1) The amount of levy payable by each contractor who is registered as a worker for the contract cleaning industry is the percentage of the contractor's ordinary remuneration determined by the Minister from time to time by order published on the NSW legislation website. (2) The Corporation must, from time to time, recommend in writing to the Minister the levy that should be payable by contractors who are registered workers for the contract cleaning industry. (3) Before making an order, the Minister must have regard to any recommendation made under subsection (2), but need not follow it. (4) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order under this section in the same way as those sections apply to statutory rules. 50 Levy payments by employers A person who is, or was, an employer for the contract cleaning industry during a return period must, when the person gives the Corporation a return under section 39, pay to the Corporation the levy payable under section 48 for the return period. Maximum penalty—20 penalty units. 51 Levy payments by registered contractors A person who is, or was, a contractor registered as a worker for the contract cleaning industry during a return period must, when the person gives the Corporation a return under section 41, pay to the Corporation the levy payable under section 49 for the return period. 52 Interest on, and extension of time for payment, of levy (1) A levy amount that is not paid at or before the time it is due bears compound interest at the prescribed rate. (2) Interest forms part of, and may be recovered as, unpaid levy. (3) The Corporation may, if it considers that special circumstances warrant it doing so in any particular case, direct— (a) that the time for payment of all or part of a levy amount be changed to a later time specified in the direction, or (b) that the amount of any interest payable under subsection (1) be waived or reduced by an amount specified in the direction. (4) Subsection (3) has effect despite sections 50 and 51. (5) In this section prescribed rate means— (a) except as provided by paragraph (b)—2% per calendar month, or part of a calendar month, or (b) such other rate as is prescribed by the regulations. Note— See section 82 with respect to appeals. 53 Assessment of unpaid levy (1) If it appears to the Corporation that a levy amount 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 for the decision, and (b) a statement of the effect of section 83. 54 Authorised agents for collection of levies (1) The Corporation may enter into agreements with agents appointed by it for the collection of long service levies. (2) Any such agreement may provide for the payment out of the Fund of remuneration for the authorised agent. Part 6 Long service leave 55 Long service leave A registered worker for the contract cleaning industry is entitled to leave in accordance with this Part. 56 Years of recognised service A registered worker for the contract cleaning industry is taken to have completed a year of recognised service for each 365 days of recognised service. 57 Long service leave formula—contract cleaning industry The following is the long service leave formula for the contract cleaning industry used under this Part for working out entitlements to long service leave— 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 held by the registered worker. 58 Amount of leave—contract cleaning industry (1) A registered worker for the contract cleaning industry who has 3650 days or more of recognised service completed after the commencement of this Act is entitled to 8.67 weeks of long service leave under this Act. Note— Payment for leave under this Act is made by the Corporation—see section 60. (2) A registered worker for the contract cleaning industry who completes a further 1825 days of additional service after the worker last became entitled to long service leave under this Act— (a) is entitled under this Act to 4.33 weeks of long service leave for the additional days of service if they are credited in the workers register, and (b) to a further 4.33 weeks of long service leave under this Act for each subsequent further 1825 days of additional service that the worker completes and that is so credited. (3) A worker for the contract cleaning industry— (a) who before the commencement of this Act had accrued an entitlement, or after the commencement becomes entitled, to long service leave under the Long Service Leave Act 1955 (the 1955 Act) but who has not accrued any entitlement to long service leave with any employer under this Act, and (b) who after the commencement of this Act, becomes a registered worker and completes a further 1825 days of additional service in the industry after last becoming entitled to long service leave under the 1955 Act, is entitled under this Act to 4.33 weeks of long service leave for the additional days of service if the worker is credited with the additional days of service in the workers register and to a further 4.33 weeks of long service leave for each subsequent further 1825 days of additional service that the worker completes and that is so credited. 59 Grant of leave by employers—contract cleaning industry (1) The employer of a registered worker for the contract cleaning industry is guilty of an offence if— (a) the worker becomes entitled to long service leave under this Act, and (b) the employer does not grant the worker the long service leave before the end of the prescribed period. Maximum penalty—50 penalty units. (2) Long service leave must not be granted for a period of less than 2 weeks. (3) In this section— prescribed period, for long service leave to which a registered worker engaged by an employer for the contract cleaning industry is entitled, means— (a) 6 months after the day on which the worker becomes entitled to the leave under this Act, or (b) if the Corporation has allowed (on application by the employer or the 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 period agreed. (4) If an employer and a worker agree on a prescribed period as referred to in paragraph (c) of the definition of prescribed period in subsection (3), the employer must give written notice to the Corporation of the agreed period within 7 days after the agreement is reached. 60 Payments for leave (1) A registered worker who has accrued long service leave under this Act may apply to the Corporation for payment for the leave. (2) The application must be in the approved form. (3) The Corporation may require an applicant to provide such documentary or other evidence (including a statutory declaration) as the Corporation may require to deal with the application. (4) If the Corporation is satisfied that the applicant is entitled to long service leave under this Act, the Corporation must approve the application and pay to the applicant the amount payable under section 66 or 67 (as the case requires) as soon as practicable after the application is made. 61 Long service leave not payable if payment previously made (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 of the Commonwealth) providing for payment of workers performing cleaning work in the contract cleaning industry. 62 Prohibition on payments in lieu of leave Except as provided by section 64, a registered worker must not be paid any amount instead of long service leave. 63 Entitlement to pro rata payment instead of leave in limited circumstances (1) This section applies to a registered worker for the contract cleaning industry who has 5 years of recognised service if— (a) the worker has permanently left the industry, and (b) 10 weeks, or a shorter period prescribed by the regulations, have passed since the day on which the worker permanently left the industry, and (c) the worker has not been credited with service in the workers register for any of the days in the 10-week period or the shorter period prescribed under subsection (1)(b). (2) If the Corporation is satisfied that this section applies to the worker, the worker is entitled to payment instead of long service leave for the number of weeks of long service leave worked out in accordance with the long service leave formula. 64 Pro rata payments instead of leave (1) If a registered worker is entitled to payment instead of long service leave under section 63, the worker may apply to the Corporation for the payment. (2) If a registered worker has died and, immediately before the death, the registered worker had 5 years of recognised service, the registered worker's personal representative may apply to the Corporation for payment of the entitlement. (3) An application under this section must be in the approved form. (4) 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. 65 How are leave entitlements to be worked out? (1) For the purposes of sections 60 (Payments for leave) and 64 (Pro rata payments instead of leave), 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 worked out in section 66, and (b) for any part of the entitlement to long service leave accrued as a contractor—the amount worked out in accordance with section 67. (2) For the purposes of subsection (1)— (a) long service leave must be taken in the reverse order in which it is accrued, and (b) if pro rata payment instead of leave is being made—the payment is made in relation to the leave in the order in which it is accrued. 66 Leave payments to employee for service as a registered worker (1) For the purposes of section 60, the amount payable to an employee for long service leave for service accrued as a registered worker is the amount worked out using the following formula— (2) In this section— D means the number of days of service credited to the registered worker in the workers register to which the amount payable relates. designated day means— (a) if the registered worker is taking long service leave—the day the leave begins, and (b) if the registered worker is being paid pro rata instead of taking long service leave—the day the application for payment is approved. 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) if relevant—the most recent 40 quarters of service as a registered worker before the designated day. Example—"R" Henry has worked in the contract cleaning industry for 7 years. The periods in paragraphs (a), (b) and (c) apply to Henry because he has completed more than 20 return periods (ie 1825 days or 5 years), but less than 40 return periods (ie 3650 days or 10 years), of relevant service. Henry's average weekly income for the 2 return periods before the designated day is $283. His weekly averages for the 4 and 20 return periods before the designated day are $427 and $375, respectively. Accordingly "R" is $427 because it is the highest of the weekly averages. 67 Leave payments to a contractor for service as a registered worker (1) For the purposes of section 60, 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) amounts paid by the contractor to the Corporation under section 51 (Levy payments by registered contractors), (b) interest at the determined rate worked out from the date of receipt of each amount paid under that section until the designated day for the leave. (2) The Corporation must determine an interim rate of interest from time to time before the determination of the rate under subsection (1) (b). (3) The determined rate of interest must— (a) be worked out after the end of each financial year for the previous financial year, (b) take into account the expenses incurred in administering the Corporation, (c) be at least 75% of the rate of interest, expressed as a percentage, earned by the Corporation and worked out in accordance with the regulations. (4) In this section— designated day means— (a) if the worker is taking long service leave—the day the leave begins, and (b) if the registered worker is being paid pro rata instead of taking long service leave—the day the Corporation approves the application for payment. 68 Deemed minimum and maximum rates of pay (1) Despite section 66, the regulations may make provision for the determination of minimum and maximum amounts for R for the purposes of the formula in that section. (2) The Minister is to consult with the Committee before recommending the making of a regulation under this section. (3) The Committee is to advise and make recommendations to the Minister on the operation of, and any amendment to or repeal of, any regulation made under this section. (4) If an amount of a long service payment to a worker under section 66 or 67 is, because of the operation of a regulation made under this section, less than the amount it would have been in the absence of the regulation, the Corporation is to notify the worker in writing of that fact and give an explanation of the operation of the regulation. Note— See section 84 with respect to appeals. 69 Public holidays not to count as leave A period of long service leave taken by a registered worker is increased by one day for each public holiday that falls during the period of leave. 70 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 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 worker's personal representative has received from or on behalf of the employer for the worker's long service leave entitlement under this Act. 71 Payment may be deferred (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. 72 Corporation's liability confined to long service leave Despite the Corporation having paid, or 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 73 Appeals—general provisions (1) An appeal under this Act is to be made— (a) except as provided by paragraph (b)—within 21 days after the appellant is notified of the decision appealed against, or (b) within such other time as may be prescribed by the regulations in respect of the appeal. (2) The manner of making and the procedure for hearing and determining an appeal under this Act is, subject to the regulations, to be as determined by the Committee. (3) The Committee may at any time refer the matter the subject of an appeal under this Act to the Corporation for reconsideration. (4) The determination of the Committee in respect of an appeal under this Act 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 any court a plea of issue estoppel is not available in respect of an issue decided by the Committee. 74 Hearing and determination of appeals by 2 or more members (1) If the Committee in any particular case or class of cases so determines, an appeal under this Act may be heard or may be heard and determined by 2 or more members of the Committee appointed by the Committee for the purpose. (2) If an appeal is heard but not determined by 2 or more