Queensland: Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld)

Building and Construction Industry (Portable Long Service Leave) Act 1991 An Act to provide for an equitable and efficient system of portability of long service leave in the building and construction industry, and for other purposes Part 1 Preliminary 1 Short title This Act may be cited as the Building and Construction Industry (Portable Long Service Leave) Act 1991. 2 [Repealed] 3 Definitions The dictionary in the schedule defines particular words used in this Act. 3AA Meaning of building and construction industry (1) The building and construction industry is the industry of constructing, deconstructing, reconstructing, renovating, altering, demolishing, relocating, maintaining or repairing any of the following— (a) buildings; (b) spa pools and swimming pools; (c) roads, railways, airfields or other works for the passage of anything; (d) breakwaters, docks, jetties, piers or wharves; (e) works for solid waste disposal; (f) works for subdividing or developing land; (g) works for the improvement or alteration of a harbour, river or watercourse for navigation purposes; (h) works for the storage or supply of water or for flood mitigation; (i) works for the irrigation of land; (j) works for the conveyance, treatment or disposal of sewage or of the effluent from any premises; (k) works for extracting, refining, processing or treating materials or for producing or extracting products and by-products from materials; (l) works for conveying products, by-products or materials; (m) works for the drainage of land; (n) works for the storage of liquids, other than water, or gases; (o) works for the generation, supply or transmission of electric power; (p) works for telecommunication or for the transmission of radio or television; (q) bridges, viaducts, aqueducts or tunnels; (r) chimney stacks, cooling towers, drilling rigs, gas holders or silos; (s) pipe lines; (t) navigational lights, beacons or markers; (u) pile driving works; (v) sporting or recreational facilities; (w) earthworks, other than for farming; (x) fences, other than fences on farms; (y) structures, fixtures or other works not included in paragraphs (a) to (x), but not including earthworks for farming or fences on farms. (2) The building and construction industry also includes landclearing and site preparation, other than for farming. (3) The building and construction industry also includes the industry of, whether on or off site— (a) constructing a thing, other than ordinary stock for sale, in accordance with working drawings; or (b) deconstructing, reconstructing, renovating, altering, demolishing, relocating, maintaining or repairing a thing, other than ordinary stock for sale, constructed in accordance with working drawings. (4) The building and construction industry does not include the industry of performing maintenance or repairs of a minor nature to anything mentioned in subsection (1) or (3) for a person not substantially engaged in activity mentioned in subsection (1), (2) or (3). 3A Who is an eligible worker (1) An eligible worker is an individual who— (a) under a contract of service is engaged to perform work in the building and construction industry for the majority of the person's ordinary hours of work; or (b) under a contract, whether or not the contract is a contract of service, or at piecework rates, is engaged to perform work in the building and construction industry, for labour only or substantially for labour only, for the majority of the person's ordinary hours of work; or (c) under a contract, whether or not the contract is a contract of service, performs work in the building and construction industry for the majority of the person's ordinary hours of work, unless— (i) the individual— (A) is paid to achieve a stated result or outcome; and (B) has to supply all, or substantially all, of the plant and equipment or tools of trade needed to perform the work; and (C) is, or would be, liable for the cost of fixing a fault with the work performed; or (ii) a personal services business determination is in effect for the individual performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60. (2) Also, eligible worker includes— (a) an individual who is engaged to perform both work and supervision of other workers in the building and construction industry, whether or not the individual is known as a supervisor, leading hand or another title; and (b) an individual who is appointed as a safety officer by the person conducting a business to advise the person in relation to work health and safety duties under the Work Health and Safety Act 2011, in relation to building and construction work, whether or not the individual performs or usually performs building and construction work. (3) This section is subject to section 3B. 3B When an individual is not an eligible worker (1) An individual is not an eligible worker if— (a) the individual performs work in the building and construction industry— (i) in a managerial, clerical, professional or ancillary capacity; or (ii) under a contract of service with a partnership if the individual is a partner and participates in the management of the partnership or shares in its profits; or (iii) under a contract of service with a government entity or a local government; or (b) the individual is engaged under a contract of service with a non-Queensland government entity; or (c) a regulation declares the individual is not an eligible worker because the work the individual performs is subject to stated coverage under a stated industrial instrument within the meaning of the Industrial Relations Act 2016; or (d) the individual performs qualifying service within the meaning of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cwlth), section 39A(2). (2) Also, an individual who would otherwise be an eligible worker under section 3A(1) or (2) is not an eligible worker if the individual is engaged to perform building and construction industry work by— (a) a government entity; or (b) a local government; or (c) Mount Isa Mines Limited ACN 009 661 447; or (d) a person who is not substantially engaged in the building and construction industry. (3) Subsection (2)(d) does not apply if the individual is a party to a contract with a labour hire agency that arranges for the individual to perform building and construction work for someone else under an arrangement between the agency and the other person. (4) In this section— arrangement includes agreement, promise, scheme, transaction, understanding and undertaking, whether express or implied. 4 Meaning of substantially engaged in the building and construction industry A person is substantially engaged in the building and construction industry if the person— (a) is ordinarily engaged in work in the building and construction industry as part of the person's usual business activities; or (b) is ordinarily ready to perform, for reward, work in the building and construction industry. 5 Act binds all persons This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. Part 2 Building and Construction Industry (Portable Long Service Leave) Authority Division 1 Establishment of authority 6 Establishment of authority The Building and Construction Industry (Portable Long Service Leave) Authority is established. 7 Legal status of authority (1) The authority— (a) is a body corporate; and (b) has a seal; and (c) may sue and be sued in its corporate name. (2) The authority does not represent the State. 8 Authority may operate under trading name The authority may operate under a trading name prescribed under a regulation. Division 2 Functions and powers of authority 9 Authority's functions (1) The authority's primary functions are— (a) to provide an equitable and efficient system of portable long service leave for eligible workers in the building and construction industry; and (b) to collect building and construction industry training levy payable under this Act for payment to a building and construction industry training fund under this Act; and (c) to act as an agent in collecting fees and charges payable under other Acts. (2) The other functions of the authority are— (a) to provide educational and awareness programs to the building and construction industry to encourage worker membership and industry compliance with this Act; and (b) to give advice and make recommendations to the Minister on issues affecting the provision of long service leave in the industry and the operation of this Act; and (c) to perform other functions given to the authority under this or another Act; and (d) to perform functions incidental to its other functions; and (e) other functions prescribed under a regulation. 10 Authority's powers (1) The authority has all the powers of an individual and may, for example— (a) enter into contracts; and (b) acquire, hold, deal with and dispose of property; and (c) appoint agents and attorneys; and (d) charge for, and fix conditions for the supply of, the goods, services and information it supplies; and (e) engage consultants; and (f) do anything else necessary or convenient to be done in performing its functions. Example for subsection (1)— collecting, under a contract or agreement, amounts that are not funds of the authority (2) Without limiting subsection (1), the authority has the powers given to it under this or another Act. (4) The authority may exercise its powers inside and outside Queensland. (5) Without limiting subsection (4), the authority may exercise its powers outside Australia. Part 3 Other provisions about the authority 11 The board The authority has a board of directors. 12 Role of board The board's role includes— (a) responsibility for the authority's commercial policy and management; and (b) ensuring, as far as possible, the authority achieves, and acts in accordance with, its corporate goals and carries out its corporate objectives outlined in its corporate plan; and (c) providing advice and recommendations to the Minister on issues affecting the provision of long service leave in the industry and the operation of this Act; and (d) ensuring the authority otherwise performs its functions in an appropriate, effective and efficient way. 13 Composition of board The board consists of the following 8 directors— (a) the chairperson; (b) the deputy chairperson who must have knowledge of, and experience in, financial affairs; (c) 3 directors representing employers in the building and construction industry; (d) 3 directors representing workers who perform building and construction work. 14 Appointment of directors The directors are to be appointed by the Governor in Council. 15 Disqualification from board (1) A person who— (b) is an undischarged bankrupt or takes advantage of the laws relating to bankruptcy; or (c) subject to subsection (2), has been convicted in the State of an indictable offence or outside the State in respect of an act or omission such that had it happened in the State it would have constituted an indictable offence; is disqualified from being, or continuing as, a director of the board. (2) Subsection (1)(c) does not apply to a person if the Minister certifies in writing that, in the Minister's opinion, the circumstances of the act or omission mentioned in that subsection do not warrant the director's being disqualified from being, or continuing as, a director of the board. 16 Term of office (1) A director of the board holds office for a term of 3 years and, subject to this Act, is eligible for reappointment. (2) The Governor in Council may, at any time, remove from office a director of the board by gazette notice. 17 Vacating office The office of a director of the board becomes vacant if the director— (a) dies; or (b) resigns by signed notice given to the Minister; or (c) is absent, without prior leave of the board and without reasonable excuse, from 3 consecutive meetings of the board of which notice has been given to the director; or (d) becomes disqualified as prescribed by section 15 from continuing as a director; or (e) is removed from office under section 16(2). 18 Casual vacancy (1) When a vacancy happens in the office of a director of the board before the end of the term of appointment, the Governor in Council may appoint another person to the office for the balance of the term. (2) A person appointed in place of a director mentioned in section 13(b), (c) or (d) must have the knowledge and experience required by section 13(b) or be representative as required by section 13(c) or (d), as the case may be. (3) If the director in whose office a vacancy happens was also chairperson or deputy chairperson of the board, the successor appointed under subsection (1) is also chairperson or deputy chairperson of the board, as the case may be. 19 Board meetings (1) Subject to subsection (2), the board is to meet as often as is necessary for the discharge of its functions and the exercise of its powers under this Act. (2) The board is to meet at least once in every 3 months. (3) The chairperson may convene a meeting of the board at any time. (4) The chairperson must convene a meeting if jointly requested by a director of the board appointed under section 13(c) and a director of the board appointed under section 13(d). 20 Procedure at meetings etc. (1) The chairperson of the board is to preside at all meetings at which the chairperson is present and, in the chairperson's absence, the deputy chairperson of the board is to preside. (2) When the deputy chairperson presides at a meeting, the deputy chairperson has all the functions and powers of the chairperson. (3) A quorum of the board consists of 5 directors, of whom— (a) 1 is to be the chairperson or deputy chairperson of the board; and (b) 1 is to be a director appointed under section 13(c); and (c) 1 is to be a director appointed under section 13(d). (4) Business is not to be conducted at a meeting of the board unless a quorum is present. (5) Business at a meeting is decided by majority vote of the directors present and voting on the business in question. (6) Business of the board decided by written reference to the directors of the board is to be decided by majority vote of the directors voting on the business in question in response to the reference. (7) A director of the board who refrains from voting is taken to have cast a vote in the negative unless the director refrains because of a conflict of interest declared by the director. (8) The person who presides at a meeting, or, if business of the board is decided by a written reference, the chairperson, has a deliberative vote and a casting vote. (9) Subject to this Act, the board may conduct its business generally, and proceedings at its meetings, in such way as it determines from time to time. (10) The board in respect of any matter being considered by it must have regard to anything placed before it, and any comments, by the general manager. 21 Minutes (1) The chairperson of the board must cause a record to be kept of every decision of the board, whether made at a meeting or by written reference to the directors. (2) The record of each decision of the board must be presented to the board's next meeting for confirmation. (3) If the record is confirmed, it must be signed by the person presiding at the meeting and forms part of the minutes of the meeting. 22 Custody and affixing of seal (1) The authority's seal is to be kept in the general manager's custody. (2) The seal can be lawfully affixed to a document by the general manager only in pursuance of a resolution of the board. (3) The general manager must affix the seal in the presence of the chairperson or, in the absence of the chairperson, the deputy chairperson. (4) Judicial notice is to be taken of the imprint of the authority's seal affixed to any document and, until the contrary is proved, it is to be presumed that the seal has been duly affixed to the document. 23 Execution of contracts and agreements Contracts or agreements may be made, varied or discharged on behalf of the authority in the following way— (a) a contract or agreement that, if made between individuals would be required by law to be in writing under seal, may be made, varied or discharged in the name and on behalf of the authority, in writing under the seal of the authority; (b) a contract or agreement that, if made between individuals would be required by law to be in writing signed by the parties and not required to be under seal, may be made, varied or discharged in the name and on behalf of the authority, in writing signed by any person acting under the express or implied authority of the authority; (c) a contract or agreement that, if made between individuals would by law be valid although made verbally only and not reduced to writing, may be made, varied or discharged verbally in the name and on behalf of the authority, by any person acting under the express or implied authority of the authority. 24 Remuneration of directors (1) A director of the board is to be paid such fees, remuneration and allowances in respect of the discharge of duties as a director as are determined by the Governor in Council. (2) A provision in an Act requiring the holder of a specified office to devote the whole of the holder's time to the duties of office, or prohibiting engagement in employment outside the duties of office, does not operate to disqualify the holder from— (a) holding that office and also the office of director of the board; or (b) accepting and retaining any fees, remuneration or allowances payable under this section. Part 4 Administration 25 Administration subject to Minister Subject to the Minister, the authority is to administer this Act. 26 General manager and staff employed under Public Sector Act 2022 The general manager and staff of the authority are to be employed under the Public Sector Act 2022. 27 Duties of general manager The authority's general manager is, under its board, to manage the authority. 28 Things done by general manager Anything done in the name of, or for, the authority by the general manager is taken to have been done by the authority. 29 General manager's power of delegation The general manager may delegate all or any of the general manager's powers to a member of the authority's staff. 30 Judicial notice of signatures Judicial notice is to be taken of the signature of the chairperson, deputy chairperson or general manager on a document and, until the contrary is proved, the signature is presumed to have been duly made. 31 Use of services of public service employees (1) With the approval of the Minister, and of the Minister responsible for the department concerned, the authority may utilise the services of any public service employee on such terms as are arranged. (2) The amount of salaries, wages or allowances paid from the departmental accounts of the department under the Financial Accountability Act 2009, section 69, to a public service employee who is engaged in the business of the authority under subsection (1) must be recouped to the departmental accounts to the extent that reflects the proportion of the working time of the public service employee spent in the business of the authority. Part 5 Financial provisions 32 Funds of authority (1) The funds of the authority consist of— (a) long service leave levy paid to the authority; and (b) amounts borrowed by the authority; and (c) the proceeds from investments by the authority; and (d) any other amounts received by the authority. (2) Funds of the authority are to be applied to making— (a) long service leave payments; and (b) payments in respect of expenses incurred in the administration of this Act; and (c) payments in respect of borrowings by the authority; and (d) investments by the authority; and (e) any other payments authorised by the following Acts— (i) this Act; (ii) the Contract Cleaning Industry (Portable Long Service Leave) Act 2005; (iii) the Community Services Industry (Portable Long Service Leave) Act 2020. (3) Building and construction industry training levy paid to the authority is not part of the authority's funds. (4) Work health and safety levy paid to the authority must be paid by the authority to the relevant department for the consolidated fund. (5) In this section— relevant department means the department in which the Work Health and Safety Act 2011 is administered. 33 Dealing with building and construction industry training levy As soon as practicable after receiving an amount of building and construction industry training levy, the authority must pay the amount to a building and construction industry training fund prescribed under a regulation to be held in trust for the training of persons in the building and construction industry. 34 Proposed budget and progress budget reports (1) The authority must provide the Minister with details of its proposed budget for each financial year at least 30 days before the start of the financial year. (2) The proposed budget has no effect unless it is approved by the Minister. (3) The authority must provide to the Minister progress reports on the operation of the budget. (4) Progress reports are to be provided at such times, and in the way, that the Minister requires. 35 Actuarial investigation of funds (1) The authority must investigate the sufficiency of the authority's funds and the adequacy of the rate of long service leave levy to be made— (a) as at 1 July 1995; and (b) afterwards, at intervals of not more than 2 years. (2) An investigation must be made by an actuary. (3) An actuary who makes an investigation— (a) must finish the investigation, and report the outcome of the investigation to the authority, as soon as practicable after the date at which the investigation is made; and (b) must express in the report an opinion about whether any reduction or increase should be made in the rate of long service leave levy. (4) As soon as practicable after it receives the report, the authority must give the report to the Minister together with its recommendations on— (a) the opinion expressed by the actuary under subsection (3)(b); and (b) whether the funds available are adequate to carry out the authority's functions. (5) This section does not limit the authority's ability to make other inquiries about the sufficiency of the authority's funds and the adequacy of the rate of long service leave levy. 36 Application of Finance Acts (1) The authority is a statutory body within the meaning of the Financial Accountability Act 2009. (2) The authority is a statutory body for the Statutory Bodies Financial Arrangements Act 1982. (3) The Statutory Bodies Financial Arrangements Act 1982, part 2B sets out the way in which the authority's powers under this Act are affected by the Statutory Bodies Financial Arrangements Act 1982, including, for example, section 10(4) and (5) of this Act. Part 6 Registration and service credits Division 1 Register of workers 37 Authority to keep register of workers (1) The authority must keep a register of persons who are workers in the building and construction industry. (2) The register must contain— (a) the names of all persons whose applications have been approved under section 39, and the names of each other person— (i) in relation to whom the authority has received a certificate of service from an employer under section 47, or other information; and (ii) who the authority is satisfied is an eligible worker; and (b) the date on which each such person became a registered worker; and (c) in respect of each such person, the number of days' service in the building and construction industry with which the person is credited under division 3; and (d) such other information as the authority considers necessary for the purpose of administering this Act. (3) The authority may, for the purposes of entering in the register of workers the particulars referred to in subsection (2)(c), rely on the information contained in a certificate of service furnished under section 47 or on such other information as the authority thinks fit. 38 Application for registration (1) A person may, at any time, apply in writing to become a registered worker. (2) The application must be in the approved form. (3) The authority, by written notice, may ask the applicant to give further information or documents relevant to the application. (4) The authority may also ask the applicant to verify information or documents by statutory declaration. (5) The authority may refuse the application if the applicant fails to comply with the request without reasonable excuse. 39 Approval or refusal of application for registration (1) The authority must consider each application made under section 38 and must— (a) if satisfied that the applicant is a worker in the building and construction industry—approve the application; or (b) if not so satisfied—refuse the application. (2) If the authority refuses the application, it must give the applicant reasons for the refusal. (3) Subsection (1) does not require the authority to consider an application that it refuses under section 38(5). 40 When person becomes a registered worker (1) For section 37(2)(b), the date a person becomes a registered worker is— (a) if the person becomes a registered worker on an application under section 38—the date the application is lodged with the authority; or (b) otherwise—the date the certificate of service or other information about the person is received by the authority. (2) However, if the authority is satisfied that a person has been an eligible worker for a period before the date that would otherwise apply under subsection (1) for becoming a registered worker, the authority may fix an earlier date as the date the person became a registered worker. (3) In fixing a date under subsection (2), the authority must not fix a date earlier than the start of the financial year that is the second last full financial year before the date that would otherwise apply under subsection (1) for becoming a registered worker unless it is satisfied that special circumstances exist. Examples for applying subsection (3)— A person applies to become a registered worker on 1 February 2001. The authority may fix a date that is no earlier than 1 July 1998. The authority receives a certificate of service from an employer in relation to a worker on 1 July 2001. The authority may fix a date that is no earlier than 1 July 1999. (4) Despite subsections (2) and (3), the authority must not fix a date earlier than— (a) if the person is a person mentioned in section 3A(1)(a)—1 July 1992; or (b) if the person is a person mentioned in section 3A(1)(b) or (2)—1 January 1999. 41 Cancellation of registration (1) The authority may cancel the registration of a registered worker if it is satisfied that the registered worker has not been credited with any service in the register of workers kept under this Act, or in a like register or record kept under a corresponding law, for at least 4 consecutive years. (2) The authority may cancel the registration of a person as a registered worker if it is satisfied that the person is not a worker or that the person's application to become a registered worker should have been refused. (3) If the authority cancels the registration of a person as a registered worker, it must remove the name of the person from the register of workers— (a) as soon as practicable after 120 days from when the authority notifies the person of the cancellation; or (b) if an application for a reconsideration or an appeal under part 9 is lodged against the cancellation within that period—on the day the application or appeal is withdrawn or the cancellation is finally confirmed. (3A) Despite subsections (1), (2) and (3), subsection (3B) applies if payment for long service leave is made to a person because the person makes an application under section 56 for an entitlement to long service leave under section 57(1B) or (3). (3B) The authority must immediately— (a) cancel the registration of the person as a registered worker; and (b) notify the person of the cancellation; and (c) remove the person's name from the register of workers. (4) When the name of a person is removed from the register of workers— (a) the person ceases to be a registered worker; and (b) the person or the personal representative of the person is not entitled to apply for or be paid long service leave in respect of any days' service credited to the person in the register of workers at the time of the removal. (5) Nothing in this section prevents a person whose name has been removed from the register of workers under this section from subsequently becoming a registered worker. Division 2 Register of employers 42 Authority to keep register of employers The authority must keep a register of employers that are employers in the building and construction industry. 43 Application for registration (1) An employer in the building and construction industry (whether or not the employer carries on any other business) that engages workers must register as an employer under this division. Maximum penalty—40 penalty units. (2) An employer that is required to register as an employer under this division must apply in writing to the authority for registration in the approved form. (3) The approved form may require an employer— (a) to state— (i) each name under which the employer is, or has been, engaged in the building and construction industry; and (ii) each business address of the employer; and (iii) each place in Queensland where books and records mentioned in section 92 may be inspected during normal business hours; and (b) to provide other information or produce documents that, in the authority's opinion, are relevant to the administration or enforcement of this Act. (4) The authority may require an applicant to supply further stated information or documents to satisfy the authority the applicant is an employer in the building and construction industry who engages workers. (5) The authority may require the applicant to verify information or documents by statutory declaration. (6) The applicant must comply with a requirement under subsection (3), (4) or (5), unless the applicant has a reasonable excuse. Maximum penalty for subsection (6)—40 penalty units. 44 Approval or refusal of application for registration (1) The authority must consider each application made under section 43 and must— (a) if satisfied that the applicant is an employer in the building and construction industry who engages workers—approve the application; or (b) if not satisfied—refuse the application. (2) If the authority refuses the application, it must give the applicant reasons for the refusal. 45 Employer to notify authority of any change in circumstance An employer must give written notice to the authority of any change to information given to the authority under section 43(3) or (4) within 14 days of the change happening. Maximum penalty—40 penalty units. 46 Cancellation of registration as a registered employer (1) If a registered employer stops engaging eligible workers to perform work in the building and construction industry, the registered employer may, by notice, apply to the authority for cancellation of the registration. (2) If the authority refuses to cancel the registered employer's registration, the authority must give the registered employer written notice of the refusal and the reason for the refusal. 46A Authority may require information or documents from person believed to be employer (1) This section applies if the authority believes, on reasonable grounds, that a person is or has been an employer in the building and construction industry, but is not or has not been registered as an employer under this division. (2) The authority may, by written notice given to the person, require the person to give the authority the information or documents asked for in the notice that are necessary to enable the authority to decide whether or not the person is or has been an employer in the building and construction industry. (3) The notice may state a time, that must be reasonable in the circumstances, within which the information or documents must be given. (4) The person must comply with the notice, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (5) If a court finds that a person has contravened subsection (4), the court may, in addition to any order the court may make imposing a penalty, make any other order the court considers appropriate. (6) The person must comply with the order, unless the person has a reasonable excuse. Maximum penalty—40 penalty units. Division 3 Service credits 47 Certificate of service to be supplied by employers (1) An employer in the building and construction industry that engages a worker must— (a) give to the authority, in accordance with a regulation, a certificate of service for the worker; and (b) within such reasonable time, and in such reasonable way, as is specified in a notice served on the employer by the authority, give to the authority a certificate of service for the worker for the period specified in the notice. Maximum penalty—40 penalty units. (2) The employer must also make the information contained in the certificate of service available to the worker to whom the information relates. Maximum penalty—40 penalty units. (3) The authority may extend (for no longer than 2 months) the time specified in a notice served under subsection (1). (4) In this section— certificate of service, for a worker, means a certificate in the approved form that complies with section 48. 48 Form and contents of certificate (1) A certificate of service under section 47 must— (a) state whether the worker was engaged by the employer for the whole of the period to which the certificate relates or, if engaged for only a part of the period, the period during which the worker was engaged; and (b) state whether the worker was engaged in the performance of building and construction work on a full-time basis or, if not, state such particulars as are requested in the form in respect of the time spent by the worker in the performance of building and construction work; and (c) contain such particulars of building and construction work performed by the worker outside Queensland as are requested in the form; and (d) contain such other particulars as are requested in the form; and (e) be completed in accordance with the directions contained in the form. (2) The certificate of service must be verified in any way (including by statutory declaration) that the authority requires. 49 Exemptions (1) An employer may apply to the authority for an exemption from the requirement to give a certificate of service under section 47 for a worker or class of workers. (2) The authority may grant the exemption if the employer satisfies the authority— (a) the employer no longer engages the worker or class of workers; or (b) the employer complies with, or makes contributions to, a similar scheme in another State about the payment of long service leave payments for the worker or class of workers. (3) The authority may, by written notice to the employer, cancel an exemption granted under subsection (2) if it is satisfied the exemption should no longer be given. (4) If the authority revokes the exemption, it must give the employer reasons for the revocation. 50 Number of days' service (1) Subject to sections 51, 52 and 54, if the authority is satisfied that a registered worker was engaged in the performance of building and construction work, the registered worker must be credited in the register of workers with the following number of days' service— (a) if the engagement was on a full-time basis only during a financial year—the number of days' service; (b) if the engagement was on a basis that is not a full-time basis during the whole, or a part, of a financial year—such number of days service with which the worker would have been credited, in the authority's opinion, had the engagement been on a full-time basis only. (2) Subsection (1) does not apply if the work is performed under a contract for services other than a contract for labour only. 51 Year's service For the purposes of this Act, a worker is taken to have a year's service for every 220 days' service that is credited to the worker in the register of workers kept under this Act or in a like register or record kept under a corresponding law. 51A Service credits for injured workers (1) This section applies if— (a) a registered worker sustains an injury, within the meaning of the Workers' Compensation and Rehabilitation Act 2003, section 32, while performing work for an employer; and (b) the worker can not perform building and construction work because of the injury. (2) The worker must be credited in the register of workers with service as if the person had been engaged in the performance of building and construction work from the day of injury until the earlier of the following— (a) the end of 6 months after the day of injury; (b) the worker engages in any employment on a full-time basis. 52 Limitations on service credits (1) Subject to section 54, a person must not be credited in the register of workers with any day's service in the building and construction industry unless that day was on or after the date on which the person became a registered worker. (2) A registered worker must not be credited in the register of workers with more than 220 days' service in the building and construction industry for a financial year. (3) If— (a) in respect of a financial year a registered worker would, but for this subsection, be entitled to be credited in the register of workers with a period of service and to be credited in a like register or record kept under a corresponding law with another period of service; and (b) the periods of service together amount to more than 220 days; the period of service with which the worker is to be credited in the register of workers kept under this Act must be adjusted so as to provide that the total period with which the worker is credited in the registers does not exceed 220 days. (4) The adjustment referred to in subsection (3) must be made— (a) when an application is made under this Act or a corresponding law for payment of long service leave to be made in respect of a period of service that includes either or both of the periods of service referred to in that subsection; or (b) at such other time as the authority may decide. (5) If payment for long service leave is made to a person because the person makes an application under section 56(1) or a corresponding law that corresponds to section 56(1), the person must not be credited in the register of workers with any day's service for building and construction work performed by the person during the period of long service leave. 53 Notice to registered workers of service credits The authority must, as soon as practicable after 31 July in each year, serve on each person who on 30 June in that year was a registered worker a notice— (a) specifying the number of days' service in the building and construction industry, as shown in the register of workers, with which that registered worker has, in accordance with this division, been credited in respect of the year ended on that 30 June; and (b) specifying the total number of days' service in the building and construction industry with which that registered worker has, in accordance with this division, been credited. 54 Retrospective service credits (1) A registered worker, or person who applies to become a registered worker, may apply to the authority to be credited with retrospective service credits for the time he or she was engaged in performing building and construction work— (a) in Queensland; and (b) during any part of the 5 years immediately before the commencement of this part. (2) A registered worker must not be credited— (a) with more than 220 days for any of the years referred to in subsection (1)(b); or (b) for more than 5 years; or (c) with service credits for a period for which the worker has an entitlement under subsection (3). (3) If a worker who is entitled to become a registered worker, as at the commencement of this part, has an entitlement to long service leave under the Industrial Relations Act 1990 from an employer that is the employer of the worker as at the commencement, the liability for the entitlement remains with the employer. (4) If— (a) the authority is satisfied with the information given in an application under subsection (1); and (b) the applicant is, or becomes, a registered worker; the authority must credit the applicant, in the register of workers, with retrospective service credits to which the authority considers the applicant to be entitled to be credited. 55 Application for retrospective service credits (1) An application under section 54(1) must be made— (a) within— (i) 1 year from the commencement of this part; or (ii) such longer period as the authority allows under subsection (3); and (b) in the approved form. (2) If an applicant requests the authority to allow a longer period under subsection (1)(a)(ii), the authority may allow a longer period. (3) The authority— (a) must not allow a period longer than 2 years after the commencement of this part; and (b) may allow a period longer than 1 year from the commencement of this part only if it considers that there are special circumstances in a particular case for so doing. (4) If the authority is not satisfied with any information given in an application, the authority may refuse the application. Part 7 Long service leave 56 Application for entitlement to long service leave or payment instead of long service leave (1) A registered worker who has service credits in the register of workers may apply to the authority in the approved form for— (a) long service leave; or (b) payment for the long service leave to which the registered worker is entitled under section 57. (2) If the building and construction industry award or agreement applying to the worker provides for the payment of all or part of an entitlement to long service leave instead of taking the leave or part of the leave, the worker and the authority may agree, by signed agreement, that the worker be paid for all or part of the entitlement in accordance with the award or agreement. (3) If no building and construction industry award or agreement provides for the worker to be paid all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made only if— (a) the worker has accrued 10 years service in the register of workers; and (b) the industrial relations commission has ordered the payment under the Industrial Relations Act 2016, section 110. (4) The personal representative of a person who died having service credits in the register of workers may apply to the authority in the approved form for payment for the credits to which the person was entitled under section 57(1) immediately before his or her death. 57 Entitlement to long service leave (1) The entitlement to long service leave is— (a) if the registered worker has accrued 10 years service in the register of workers—8.67 weeks; and (b) after 10 years service, leave accruing for each additional day's service recorded in the register at the rate that 8.67 weeks bears to 10 years. (1A) Subsection (1B) applies if— (a) a registered worker has accrued at least 5 years but less than 10 years service; and (b) the worker has been credited with retrospective service credits under section 54; and (c) the worker— (i) intends to permanently stop work in the building and construction industry; or (ii) dies. (1B) The entitlement to long service leave is a period that bears to 8.67 weeks the proportion that the worker's service credits bear to 10 years service. (2) Subsection (3) applies if a worker— (a) either— (i) has accrued at least 1540 days service; or (ii) has— (A) accrued at least 1155 days service; and (B) been a registered worker for at least 7 years in the register of workers kept under this Act, or in a similar register or record kept under a corresponding law; and (b) has not been credited with retrospective service credits under section 54; and (c) either— (i) intends to permanently stop work in the building and construction industry; or (ii) dies. (3) The entitlement to long service leave is a period that bears to 8.67 weeks the proportion that the worker's accrued service bears to 10 years service. (4) Long service leave is exclusive of any public holiday that happens during a period of long service leave that is taken. 58 [Repealed] 59 Amount of long service leave payment (1) In this section— LSLP (long service leave payment) means the amount of long service leave payment. P (pay), in relation to an application by a registered worker under section 56, means the lesser of the following amounts— (a) the amount of ordinary pay for a normal working week that is, in the authority's opinion, payable to the registered worker; (b) the amount fixed under section 59A(1). relevant award or agreement means the relevant building and construction industry award or agreement. S (service) means the number of days' service with which the registered worker for whom the application is made is credited in the register of workers— (a) on the day when the entitlement to long service leave payment first arose; or (b) if the worker or personal representative asks—on the day the application is filed with the authority. (2) As soon as practicable after an application is made under section 56, the authority must pay to the applicant long service leave payment worked out under the following formula— (3) Subsection (2) is subject to the following sections— • section 57 (Entitlement to long service leave) • section 60 (Long service leave payment not payable in certain cases). (4) The authority must pay a registered worker for any public holiday that happens during long service leave taken by the worker. (5) Unless it is likely to be the last payment for a long service leave entitlement paid to the applicant by the authority, the authority must not pay the applicant for a period of long service leave that is less than 5 days. (6) Long service leave is to be paid for as ordinary time. (7) For the purpose of making long service leave payment, ordinary time is taken to be worked continuously by the registered worker concerned during the period of the worker's long service leave. (8) If, immediately before starting long service leave, a registered worker is being paid for ordinary time worked at a rate higher than the rate payable under the relevant award or agreement for ordinary time, the worker's long service leave is to be paid for at the rate at which the worker is being paid as ordinary time. (9) For the purpose of making long service leave payment at the higher rate, ordinary time at that rate is, subject to subsection (10), taken to be worked continuously by the worker during the period of long service leave. (10) If, during the worker's long service leave, the rate payable for ordinary time under the relevant award or agreement is— (a) increased to a rate higher than the rate at which the worker is entitled to be paid—the worker is to be paid at the increased rate for the part of the period of leave during which the increased rate is the rate for ordinary time payable under the relevant award or agreement; or (b) decreased—the worker may be paid at the rate at which the worker is entitled to be paid before the decrease less the whole or any portion of the amount of the decrease, for any part of the period of leave during which that decreased rate is the rate for ordinary time payable under the relevant award or agreement. (11) If the authority is satisfied that— (a) a registered worker who intends starting a period of long service leave is usually paid a rate greater than the rate for ordinary time payable under the relevant award or agreement; and (b) the registered employer of the worker before the worker starts the leave decreases or increases the rate at which the worker is usually paid; the authority, in forming the opinion mentioned in the component P in subsection (2) must have regard to the circumstances in which the decrease or increase was made. 59A Maximum amount of ordinary pay for normal working week (1) For section 59(2), if P is an amount greater than $1400, P is fixed at— (a) for the period from commencement of this section until 30 June 2009—$1400; or (b) for any later financial year—the amount notified by the Minister by gazette notice. (2) As soon as practicable after 1 January in each year, the authority must review the cap and recommend the change to the cap that the authority considers appropriate. (3) In making its recommendation under subsection (2), the authority must take into account the following— (a) WPI; (b) rates of pay under building and construction industry awards and agreements that, in the authority's opinion, are representative of awards and agreements in the building and construction industry; (c) the sufficiency of the funds of the authority, having regard to the current levy rate. (4) Before 1 July in each year, the Minister must consider the authority's recommendation and fix the cap for the following financial year. (5) The Minister must notify the cap before 1 July in the gazette. (6) In this section— cap means the amount for P fixed under subsection (1). WPI means the Queensland wage price index for the building and construction industry available quarterly from the Australian Bureau of Statistics or, if the index ceases to be published, another similar index prescribed under a regulation. 60 Long service leave payment not payable in certain cases A registered worker is not entitled to be paid long service leave payment for any day's service credited to the registered worker in the register of workers if long service leave payment or a payment under section 62 has been made for the day. 61 Election to take benefits under this Act or Industrial Relations Act (1) A registered worker is not entitled to be paid long service leave for a period of service as a worker in the building and construction industry if the worker has taken or received— (a) a benefit for the period under part 12, division 3 of the Industrial Relations Act 1990 or a law of another State or a Territory that corresponds to that division; or (b) a benefit for the period under the Industrial Relations Act 1999, chapter 2, part 3, or chapter 2A, part 2, division 6, or a law of another State that corresponds to those provisions; or (c) a benefit for the period under the Industrial Relations Act 2016, chapter 2, part 3, division 9, or a law of another State that corresponds to those provisions; or (d) benefits in the nature of long service leave (however arising). (2) Subsection (1) applies whether the period was before or after, or partly before and partly after, the commencement of this part. (3) A registered worker who— (a) in respect of a period of service as a worker in the building and construction industry (whether that period was before or after, or partly before and partly after, the commencement of this part) becomes entitled to a benefit mentioned in subsection (1); and (b) for any part of the period, has applied for and taken (whether before or after, or partly before and partly after, that commencement) any long service leave in advance; is not entitled to be paid long service leave for service the worker had in the industry during a period by reference to which the leave was calculated. (4) A registered worker or the personal representative of a registered worker who is paid— (a) a long service leave payment under this Act; or (b) a long service leave benefit under a corresponding law; for a period by reference to which the leave or benefit was calculated, is not entitled to a benefit under the Industrial Relations Act 2016, chapter 2, part 3, division 9, or a benefit in the nature of long service leave under a scheme to which an exemption granted to an employer under section 113 of that Act relates. (5) Subject to this Act, a person is entitled to the benefit provided by this Act despite any other Act. 62 Payments to employers (1) Subject to subsection (4), if— (a) a person is provided with any benefits mentioned in section 61 for a period of service in the building and construction industry; and (b) the person— (i) was, when those benefits were provided, a registered worker; or (ii) is the personal representative of a person who, when the person died, was a registered worker; the authority must, on application by the employer who provided the benefits, pay to the employer an amount calculated in accordance with the following formula— (2) In subsection (1)— EP (employer payment) means the amount to be paid to the employer. P (pay), in relation to an application by an employer under subsection (1) in relation to benefits provided to a registered worker, means the lesser of the following amounts— (a) the amount of ordinary pay for a normal working week that is, in the authority's opinion, payable to the registered worker; (b) the amount fixed under section 62AA(1). S (service) means the number of days' service with which the worker was credited in the register of workers immediately before the benefits accrued for the period during which the worker was engaged in the performance of building and construction work by the employer, other than as a person mentioned in section 3A(1)(b). (3) An application under subsection (1) must be made in writing— (a) within 3 months after the benefits were provided; or (b) within such longer period (not more than 2 years after the benefits were provided) as the authority allows. (4) An employer is not entitled to be paid under this section— (a) a greater amount in respect of a person than the value of the benefits, mentioned in section 61(1), provided by the employer in respect of the person, calculated by reference to the same period as the payment under this section is calculated; and (b) an amount in respect of any day's service with which a worker has been credited in the register of workers if long service leave payment or a payment under this section has been made in respect of the day. (5) Despite section 41(1), an employer is entitled to be paid, for a registered worker whose name has been removed from the register of workers under section 41(1), any amount that the employer would have been entitled to be paid under this section if the name of that registered worker had not been removed from the register of workers. (6) An employer is entitled to be paid for any public holiday that happens during long service leave taken by a worker. (7) If— (a) a person is entitled to any benefits mentioned in section 61 for a period of service in the building and construction industry; and (b) the person— (i) was, when those benefits arose, a registered worker; or (ii) is the personal representative of a person who, when the person died, was a registered worker; and (c) the employer who is liable to provide those benefits satisfies the authority that the employer is unable to pay the full amount of the benefits; and (d) the authority agrees; the employer may pay to the authority an amount that represents the amount of the benefits less any amount that the employer would have been entitled to be paid under this section if the employer had paid the full amount of the benefits to the worker. (8) If a payment is made to the authority under subsection (7), the authority must pay to the registered worker the value of the benefits to which the worker is entitled. (9) Payment by an employer under subsection (7) is taken to be a compliance by the employer with the LSL payment provisions in respect of the value of the benefits the employer, in accordance with that section, is required to pay the worker. (10) In this section— LSL payment provisions means the Industrial Relations Act 2016, chapter 2, part 3, division 9, subdivision 5 or section 105, as the case requires. 62AA Maximum amount of ordinary pay for normal working week (1) For section 62(1), if P is an amount greater than $1400, P is fixed at— (a) for the period from commencement of this section until 30 June 2009—$1400; or (b) for any later financial year—the amount notified by the Minister by gazette notice. (2) As soon as practicable after 1 January in each year, the authority must review the cap and recommend the change to the cap that the authority considers appropriate. (3) In making its recommendation under subsection (2), the authority must take into account the following— (a) WPI; (b) rates of pay under building and construction industry awards and agreements that, in the authority's opinion, are representative of awards and agreements in the building and construction industry; (c) the sufficiency of the funds of the authority, having regard to the current levy rate. (4) Before 1 July in each year, the Minister must consider the authority's recommendation and fix the cap for the following financial year. (5) The Minister must notify the cap before 1 July in the gazette. (6) In this section— cap means the amount for P fixed under subsection (1). WPI means the Queensland wage price index for the building and construction industry available quarterly from the Australian Bureau of Statistics or, if the index ceases to be published, another similar index prescribed under a regulation. 62A Payment to worker or personal representative instead of employer in particular circumstances (1) This section applies if— (a) the employer of a registered worker is or becomes an insolvent under administration or an externally-administered body corporate; and (b) a worker of the employer is eligible for long service leave or payment for the long service leave. (2) The authority may pay to the worker or the worker's personal representative the difference between— (a) the amount that represents the value of the worker's long service leave under this Act; and (b) any amount that the worker or personal representative has received from or on behalf of the employer for the worker's long service leave under this Act. (3) This section applies despite anything in section 61. (4) In this section— externally-administered body corporate see the Corporations Act, section 9. 63 Entitlement to long service leave payment for service in reciprocating State or Territory (1) A person who is a registered worker may apply to the authority in the approved form for the payment by the authority of long service leave payment calculated in accordance with the corresponding law of a reciprocating State or Territory if— (a) the person— (i) has completed a period of service in that State or Territory or partly in that State or Territory and partly in Queensland; and (ii) because of having completed the service, is entitled under the corresponding law to a long service leave benefit payable in or reducible to cash; and (b) the person would, if all of the service had been performed in Queensland, have been entitled to apply for long service payment under section 57. (2) If a deceased registered worker was, immediately before the worker's death, entitled to apply for long service leave payment under subsection (1), the personal representative of the worker may apply to the authority in the approved form for the payment to be made. (3) As soon as practicable after receiving an application under subsection (1) or (2), the authority must— (a) if satisfied that the applicant is entitled under the corresponding law to the payment of a long service benefit; and (b) if authorised by the corresponding authority to make the payment; pay to the applicant the amount of that benefit calculated in accordance with that law. (4) An application