South Australia: Portable Long Service Leave Act 2024 (SA)

South Australia Portable Long Service Leave Act 2024 An Act to establish a scheme for the portability of long service leave in the community services sector, to provide for the ability to extend the scheme to employees in other sectors, to make consequential amendments to the Construction Industry Long Service Leave Act 1987 and for other purposes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Determination of ordinary weekly pay in certain circumstances 5 Application of Act 6 Extension of Act to government employees 7 Delayed participation in scheme 8 Act applies according to particular sector Part 2—Industry boards Division 1—Corporate provisions and governance 9 Key features of industry boards 10 Constitution of industry boards 11 Terms and conditions of membership 12 Remuneration 13 Proceedings at meetings 14 Conflict of interest 15 Validity of acts and decisions Division 2—Functions 16 Functions Division 3—Staff and facilities 17 Chief executive officer 18 Staff 19 Facilities Division 4—Related matters 20 Delegation 21 Accounts and audit 22 Annual report 23 Common seal Part 3—Registration Division 1—Registration of employers 24 Industry board to register employers 25 Application for registration as registered employer 26 Information to be entered in register 27 Employer to give notice of change to information 28 Industry board may require information or documents from employer 29 Cancellation of registration Division 2—Registration of workers 30 Industry board to register workers 31 Information to be entered in register 32 Worker may give notice of change to information Division 3—Related provisions 33 Related provisions Part 4—Long service leave entitlements 34 Effective service entitlement 35 Crediting effective service under this Act and the Long Service Leave Act 1987 36 Crediting effective service between different designated sectors 37 Long service leave entitlement 38 Leave allowed before entitlement accrues 39 Cessation of employment 40 Entitlement if payment already made Part 5—Funds Division 1—Industry funds 41 Industry board to establish industry fund 42 Exemption from taxes and charges 43 Investment of industry fund 44 Loans for training purposes 45 Borrowing by industry board 46 Investigation of industry fund Division 2—Common funds 47 Treasurer may authorise investment common funds Part 6—Levies 48 Imposition of levy 49 Returns by employers 50 Recovery on default 51 Penalty for late payment 52 Recovery of levies 53 Refund of overpayments Part 7—Review 54 Review by SAET 55 Effect of pending review by SAET Part 8—Civil penalties 56 Civil penalties Part 9—Miscellaneous 57 Self‑employed contractors and working directors 58 Salary sacrifice arrangements 59 Reciprocal arrangements with other States and Territories 60 Exemptions for certain interstate employers 61 General exemptions 62 Power to require information 63 Authorised officers 64 Powers of inspection 65 Records 66 Recovery of amounts and crediting entitlements 67 False or misleading information 68 Confidentiality and provision of information 69 Service of documents 70 No contracting out 71 Adverse action against designated worker 72 Offences 73 Evidentiary provision 74 Regulations 75 Review of Act Schedule 1—Establishment of industry boards 1 Community Services Sector Long Service Leave Board Schedule 2—Community services 1 Preliminary 2 Services 3 Coverage Schedule 3—Related amendments and transitional provisions Part 1—Amendment of Construction Industry Long Service Leave Act 1987 1 Amendment of section 4—Interpretation 2 Insertion of heading 3 Substitution of section 13 Division 2—Staff and facilities 13 Chief executive officer 13A Staff 13B Facilities Part 2—Transitional provisions 4 Interpretation 5 Extension of term for registration as employer 6 Current workers 7 Employers 8 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Portable Long Service Leave Act 2024. 2—Commencement This Act comes into operation on a day to be fixed by proclamation. 3—Interpretation (1) In this Act— allowable absence, in relation to a designated worker, means an absence of the worker from work, being an absence of a kind prescribed by the regulations to be an allowable absence; approved form means a form approved by the CEO; authorised officer means a person appointed as an authorised officer under section 63; CEO means the chief executive officer of each industry board under section 17(1); civil penalty— see section 56; community services are services— (a) that qualify under Schedule 2; or (b) that are prescribed by the regulations; community services sector means the area of work within the community that involves the provision of community services; Construction Industry Board means the Construction Industry Long Service Leave Board established under the Construction Industry Long Service Leave Act 1987; contract of service includes a contract of training; corresponding law means a law of another State, or of a Territory or the Commonwealth, prescribed by the regulations to be a corresponding law; designated sector means a sector in relation to which an industry board is established; designated worker means a person to whose employment this Act applies (see section 5) and includes a former designated worker; director of a body corporate includes— (a) a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (b) any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act; effective service means a period of service as a designated worker credited under this Act; employer means a person by whom a designated worker is employed; industry board means a board established under Schedule 1; industry fund—see section 41; levy includes an amount assessed by an industry board under section 50; Maximum civil penalty— see section 56; ordinary weekly pay—see subsection (4); preservation period means— (a) in reference to a person who has an effective service entitlement of less than 60 months—24 months; or (b) in reference to a person who has an effective service entitlement of 60 months or more—36 months; public sector agency means— (a) an administrative unit under the Public Sector Act 2009 (including the Chief Executive of such an administrative unit); or (b) an agency or instrumentality of the Crown; quarter means a period of 3 months commencing on any of the following: (a) 1 January; (b) 1 April; (c) 1 July; (d) 1 October; registered employer means a person registered as an employer under Part 3 Division 1; relevant date means the date as at which a person's ordinary weekly pay is to be determined; relevant designated sector—see section 8(1)(a); relevant industry board means— (a) in relation to a designated worker—the industry board for the designated sector that applies to the worker in the particular circumstances; or (b) in relation to an employer in a designated sector—the industry board for the designated sector; return period means each quarter that constitutes a return period under section 49. (2) For the purposes of this Act— (a) a reference to the industry board for a designated sector is a reference to the industry board constituted in relation to the sector; and (b) a reference to the designated sector of an industry board is a reference to the designated sector in relation to which the board is constituted. (3) For the purposes of this Act, a person will be taken to have worked for a day if the person spends at least the prescribed number of consecutive hours engaged in employment to which this Act applies during any 24 hour period. (4) Subject to this Act, a person's ordinary weekly pay will be an amount determined by averaging the person's weekly earnings as a designated worker over the period of 3 years immediately preceding the relevant date, subject to the following qualifications: (a) a week in which the person did not work as a designated worker must be disregarded; (b) if the person has not worked as a designated worker at all during the period of 12 months immediately preceding the relevant date, the person's ordinary weekly pay will be taken to be an amount determined by averaging the person's weekly earnings as a designated worker over the period of 3 years immediately preceding the end of the last return period in which the person worked in the relevant designated sector; (c) the regulations may— (i) specify payments made to or for the benefit of a designated worker that must be included for the purposes of any determination or calculation under this subsection; and (ii) specify payments made to or for the benefit of a designated worker that must be excluded for the purposes of any determination or calculation under this subsection; (d) if, but for this paragraph, a person's ordinary weekly pay would be less than an amount prescribed by the regulations, the person's ordinary weekly pay will be fixed at that amount. (5) Unless otherwise specified, ordinary weekly pay will be determined as at the end of the last completed return period under this Act. 4—Determination of ordinary weekly pay in certain circumstances (1) If at any time it appears to the industry board for a designated sector that a designated worker's ordinary weekly pay calculated in accordance with this Act is— (a) excessive; or (b) insufficient, by reason of— (c) the nature of the work performed by the designated worker at any time material to the calculation; or (d) the remuneration that was payable to the designated worker in respect of any work performed by the designated worker at any time material to the calculation, the board may, by written notice to the designated worker and the designated worker's employer (if any), inform the designated worker (or their personal representative) and the employer that the board proposes to determine the designated worker's ordinary weekly pay under this Act to be a different amount. (2) A notice under subsection (1) must specify a time within which the designated worker (or their representative) and the employer may make written submissions to the industry board that the designated worker's ordinary weekly pay should be an amount different to the amount proposed by the board. (3) In making a determination under this section an industry board must take into account any written submission received within the time specified under subsection (2) and may otherwise inform itself in such manner as it thinks fit, but except as provided by this section an industry board is not required to give to any person notice of or an opportunity to answer or to be heard in relation to any matter taken into account by the board in making the determination. (4) An industry board must cause notice of its determination under this section to be served on the designated worker (or their personal representative) and on the designated worker's employer (if any). (5) The notice must include a statement of the grounds on which the determination has been made. (6) If an industry board makes a determination of a designated worker's ordinary weekly pay under this section, that determination will prevail over any amount that would otherwise constitute the designated worker's ordinary weekly pay under this Act. 5—Application of Act (1) This Act applies to a person's employment if the person— (a) is engaged under a contract of service in the community services sector to— (i) perform community services; or (ii) support the provision of community services; or (b) is engaged under a contract of service in a designated sector to— (i) perform services prescribed as being part of the sector; or (ii) support the provision of services prescribed as being part of the sector. (2) The following provisions apply in connection with subsection (1)(a)(ii): (a) the person must work in supporting the provision of community services for a proportion of at least one‑half of the time when they work for the employer during any return period for the Act to apply to their employment in respect of that return period; (b) an employer may decide to register a person as a designated worker, and pay a levy in respect of that person, despite the fact that paragraph (a) does not apply and then, once the person is so registered, subsection (1)(a)(ii) will apply to that employment while the person is engaged under a contract of employment described in that paragraph. (3) Part 3, Part 4 and Part 6 do not apply to a person's employment (and consequently the person is not a designated worker for the purposes of those Parts) if the person's employer is a body corporate and the person is a director of the body corporate. (4) Subsection (3) does not limit the operation of section 57. (5) This Act does not apply in relation to employment by— (a) a public sector agency; or (b) a council; or (c) a prescribed employer or an employer of a prescribed class. (6) Subsection (5)(a) does not apply in relation to employment within the ambit of a notice under section 6. (7) If a person's employer is not a registered employer due to a determination of an industry board under section 7, this Act does not apply in relation to the employment of the person in a designated sector until the employer becomes a registered employer. 6—Extension of Act to government employees (1) The Minister may, by notice in the Gazette, apply this Act to employment in a specified public sector agency that constitutes the performance of work in a particular designated sector. (2) The Minister may— (a) limit the application of the Act under subsection (1) to— (i) specified classes of workers; or (ii) specified classes of work; and (b) vary or revoke a notice under subsection (1) by further notice in the Gazette. 7—Delayed participation in scheme (1) An industry board may determine that an employer, or an employer of a specified class, is not required to be registered under this Act in relation to its designated sector until— (a) a date specified by the board; or (b) the occurrence of an event specified by the board; or (c) the employer falls within a category of employer specified by the board. (2) A determination under subsection (1) may be made— (a) on application by an employer; or (b) on the own initiative of the industry board. (3) An industry board may, pending making a decision on an application under subsection (2), exempt an employer from the requirement to be registered under this Act. (4) A determination under this section— (a) may be made subject to conditions specified by the industry board; and (b) may include ancillary provisions that may be expedient or considered by the industry board to be appropriate in the circumstances; and (c) has effect according to its terms. (5) An industry board may vary a date specified under subsection (1)(a) by a subsequent determination. (6) Until the employer is registered, this Act will not apply to a person's employment with that employer. 8—Act applies according to particular sector (1) This Act— (a) applies to a designated worker in respect of service in a particular designated sector at a particular time or in a particular circumstance or case (the relevant designated sector); and (b) insofar as a designated worker may work in more than 1 designated sector, applies to the employment of the designated worker in 1 designated sector in a separate and distinct manner to the employment of the designated worker in another designated sector. (2) Accordingly— (a) a reference to effective service, as it relates to a designated worker, is a reference to the worker's work in the relevant designated sector; and (b) a reference to being engaged in employment is a reference to employment in the relevant designated sector; and (c) a reference to working as a designated worker is a reference to working in the relevant designated sector; and (d) a reference to not being a designated worker during a particular period is a reference to not being a designated worker in the relevant designated sector; and (e) a designated worker does not have continuity of employment if the worker moves from 1 designated sector to another (unless the designated worker continues to work for the same employer); and (f) a designated worker's entitlement to long service leave, or a payment on account of long service leave, is determined according to the worker's effective service entitlement in the relevant designated sector. (3) This section applies subject to any contrary intention made by this Act. Editorial note— Sections 4 to 8 had not come into operation at the date of the publication of this version. Part 2—Industry boards Division 1—Corporate provisions and governance 9—Key features of industry boards (1) An industry board— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) has all the powers of an individual that are capable of being exercised by a body corporate; and (d) has the functions assigned to the board under this Act. (2) An industry board is subject to direction by the Minister. (3) A direction given by the Minister under subsection (2) must be in writing. (4) An industry board must cause a direction given by the Minister to be published in its next annual report. 10—Constitution of industry boards (1) An industry board consists of 7 members, appointed by the Minister, of whom— (a) 1 will be a person appointed as the presiding member of the board; and (b) 3 will be persons appointed after the Minister has taken into account the recommendations of 1 or more employer organisations, to represent the interests of employers in the designated sector in relation to which the board is constituted; and (c) 3 will be persons appointed after the Minister has taken into account the recommendations of 1 or more employee organisations, to represent the interests of employees in the designated sector in relation to which the board is constituted. (2) The Minister may appoint a suitable person to be a deputy of a member of an industry board and the person may act as a member of the board— (a) in the absence from the duties of office of the member for whom the person has been appointed as deputy; or (b) if the office of the member for whom the person has been appointed as deputy becomes vacant—until the vacancy is filled by the Minister. (3) A deputy member is to be appointed after taking into account recommendations from employer or employee organisations in the same way as a member of an industry board is appointed. (4) If— (a) the presiding member is absent from the duties of office or the office of the presiding member is vacant; and (b) there is no deputy to act as the presiding member under subsection (2), the remaining members of the industry board may appoint one of their number to act as the presiding member as required (and may revoke any such appointment at any time). 11—Terms and conditions of membership (1) A member of an industry board will be appointed on conditions determined by the Minister and for a term, not exceeding 5 years, specified in the instrument of appointment and, on the expiration of a term of appointment, is eligible for reappointment. (2) The Minister may remove a member of an industry board from office— (a) for breach of, or noncompliance with, a condition of appointment; or (b) for misconduct; or (c) for failure or incapacity to carry out official duties satisfactorily; or (d) if the member was recommended for appointment on account of being an officer or employee of an employer organisation or an employee organisation and the member has ceased to be such an officer or employee. (3) The office of a member of an industry board becomes vacant if the member— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) is convicted of an indictable offence or is sentenced to imprisonment for an offence; or (e) becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or (f) is removed from office under subsection (2). (4) A member of an industry board whose term of office expires may continue to act as a member until a fresh appointment is made. 12—Remuneration (1) A member of an industry board is entitled to remuneration, allowances and expenses determined or approved by the Governor. (2) Remuneration, allowances and expenses payable under subsection (1) will be paid out of the industry fund established by the industry board under Part 5 Division 1. 13—Proceedings at meetings (1) Subject to this Act, a quorum of an industry board consists of 4 members. (2) A meeting of an industry board will be chaired by the presiding member or, in the presiding member's absence, by a member appointed under section 10(4) or, if no such appointment has been made or that member is absent, by a member chosen from amongst their own number by the members present. (3) An industry board must have accurate minutes kept of its meetings. (4) A decision carried by a majority of the votes cast by members of the board at a meeting is a decision of the board. (5) Each member present at a meeting has 1 vote on any question arising for decision and the member presiding at the meeting may exercise a casting vote if the votes are equal. (6) A conference by telephone or other electronic means between the members of an industry board will, for the purposes of this section, be taken to be a meeting of the board at which the participating members are present if— (a) notice of the conference is given to all members in the manner determined by the board for the purpose; and (b) each participating member is capable of communicating with every other participating member during the conference. (7) A proposed resolution of an industry board becomes a valid decision of the board despite the fact that it is not voted on at a meeting of the board if— (a) notice of the proposed resolution is given to all members of the board in accordance with procedures determined by the board; and (b) a majority of the members express concurrence in the proposed resolution by letter, fax, email or other written communication setting out the terms of the resolution. (8) Subject to this Act, an industry board may determine its own procedures. 14—Conflict of interest A member of an industry board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with those engaged in or associated with the designated sector in relation to which the board is constituted generally, or a substantial section of those engaged in or associated with the designated sector. 15—Validity of acts and decisions An act or decision of an industry board is not invalid by reason only of a vacancy in its membership or on the ground of a defect in the appointment of a member. Division 2—Functions 16—Functions An industry board has the following functions: (a) to take responsibility for the administration of the portable long service leave scheme as it applies in relation to the members of the designated sector in relation to which it is constituted; (b) to provide educational and awareness programs to members of the designated sector in relation to which it is constituted to encourage compliance with this Act and to ensure that designated workers receive their entitlements under this Act; (c) to give advice and make recommendations to the Minister about— (i) issues affecting the provision of long service leave in the designated sector in relation to which it is constituted; and (ii) the operation of this Act as it applies to the designated sector in relation to which it is constituted; (d) to carry out any other functions assigned to the board under this Act or by the Minister. Division 3—Staff and facilities 17—Chief executive officer (1) The chief executive officer of the Construction Industry Board is the chief executive officer of each industry board. (2) Subject to any decision, determination or policy of the industry board, the CEO is responsible to an industry board for— (a) managing the board's business efficiently and effectively; and (b) supervising the staff engaged in the work of the board. 18—Staff (1) The staffing arrangements for an industry board will be determined by the board. (2) A staffing arrangement under subsection (1) may provide for 1 or more of the following: (a) the industry board engaging staff as employees or as contractors of the board; (b) with the agreement of the Construction Industry Board—the industry board making use of the staff of that board; (c) with the agreement of a public sector agency—the industry board making use of the staff of the public sector agency. 19—Facilities An industry board may, by arrangement with— (a) the Construction Industry Board; or (b) a public sector agency, make use of the services or facilities of that board or public sector agency. Division 4—Related matters 20—Delegation (1) An industry board may delegate any of its functions— (a) to a member of the board; or (b) to the chief executive officer of the board; or (c) to a committee of the board; or (d) to a specified body or person (including a person for the time being holding or acting in a specified office or position). (2) A delegation under this section— (a) may be absolute or conditional; and (b) does not derogate from the power of the board to act in any matter; and (c) is revocable at will by the board. (3) A function delegated under this section may, if the industry board so determines or authorises, be further delegated. (4) An industry board must cause a record of delegations to be kept in a manner determined by the board. 21—Accounts and audit (1) An industry board must cause proper accounts to be kept of its financial affairs and must cause financial statements to be prepared in respect of each financial year. (2) An industry board must cause its accounts to be audited at least once each year by a registered company auditor or the Auditor‑General. (3) The Auditor‑General may at any time audit the accounts of an industry board. 22—Annual report (1) An industry board must, on or before 30 September in each year, provide to the Minister a report on its activities for the financial year ending on the preceding 30 June. (2) The report must included the audited financial statements of the industry board in relation to the relevant financial year. (3) The Minister must cause a copy of a report provided to the Minister under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report. 23—Common seal The following provisions apply in relation to the common seal of an industry board: (a) the seal will be in a form determined by the board; (b) the seal can only be affixed to a document pursuant to a resolution of the board to that effect; (c) the affixture of the seal to a document must be witnessed in accordance with a determination or policy of the board; (d) if an apparently genuine document purports to bear the common seal of the board and appears to be duly witnessed, it will be presumed, in any legal proceedings, in the absence of proof to the contrary, that the common seal was duly affixed to the document. Part 3—Registration Editorial note— Part 3 had not come into operation at the date of the publication of this version. Division 1—Registration of employers 24—Industry board to register employers An industry board must keep a register of employers in its designated sector. 25—Application for registration as registered employer (1) An employer who employs 1 or more designated workers must apply for registration on the register of employers for the relevant designated sector. (2) The application must be made to the industry board for the designated sector. (3) The application must— (a) be made in the approved form; and (b) include, or be accompanied by, any information required by the approved form; and (c) be made within the prescribed period after the employer becomes an employer in the industry board's designated sector. (4) An industry board may, by written notice, request an applicant to do the following things within a reasonable time stated in the notice: (a) provide further information or documents relevant to the application; (b) verify information or documents forming part of the application including by statutory declaration. (5) An applicant must comply with a request made under subsection (4) within the stated time, unless the applicant has a reasonable excuse. (6) An employer must not contravene a requirement under this section. Maximum civil penalty: $10 000. 26—Information to be entered in register (1) An industry board must enter the day on which an employer becomes registered as an employer by the board in relation to its designated sector in its register of employers. (2) An industry board may also enter any other information in the register the board considers necessary or convenient for the administration of this Act. 27—Employer to give notice of change to information (1) A registered employer must give notice to an industry board about any change to the information given to the industry board by the employer for the purposes of, or in connection with, its registration within 28 days after the change happens. (2) A notice under subsection (1) must be in the approved form. (3) A registered employer must not contravene a requirement under this section. Maximum civil penalty: $10 000. 28—Industry board may require information or documents from employer (1) This section applies if an industry board believes that a person is or was an employer in its designated sector, but the person is not registered on its register of employers. (2) The industry board may, by written notice given to the person, require the person to give the industry board the information or documents stated in the notice that are necessary to enable the industry board to decide whether the person is or was an employer in its designated sector. (3) The person must not fail to comply with the notice within the stated time. Maximum civil penalty: $10 000. (4) If the industry board decides that the person is an employer in its designated sector, the industry board must— (a) register the person on its register of employers; and (b) give the person notice of the registration. (5) This section does not limit the power of an industry board to require the provision or production of information under another section. 29—Cancellation of registration (1) A registered employer may, by notice in the approved form, apply to an industry board for the cancellation of the employer's registration if the registered employer stops employing workers in the board's designated sector. (2) The industry board must consider the application and decide to— (a) grant the application and cancel the employer's registration; or (b) refuse to grant the application. (3) If the industry board decides to grant the application, the board must— (a) give the employer written notice of its decision; and (b) enter in the board's register of employers that the employer is not a registered employer in its designated sector. (4) If the industry board refuses to grant the application, the board must give the employer written notice of its decision in accordance with the regulations. (5) Nothing in this section requires an industry board to remove information from a register that the board considers should be retained for the purposes of the administration of this Act. Division 2—Registration of workers 30—Industry board to register workers (1) An industry board must keep a register of designated workers in its designated sector. (2) The industry board will register a designated worker on the register on account of— (a) information provided to the board by an employer under this Act; or (b) an application made to the board by the worker. (3) An application under subsection (2)(b) must— (a) be made in the approved form; and (b) include, or be accompanied by, any information required by the approved form. (4) An industry board may, by written notice, request an applicant to provide further information or documents relevant to the application. 31—Information to be entered in register (1) An industry board must enter the day on which a person becomes a designated worker in relation to its designated sector in its register of designated workers. (2) An industry board may also enter any other information in the register the board considers necessary or convenient for the administration of this Act. 32—Worker may give notice of change to information (1) A registered designated worker may give notice to an industry board about any change to the information on the board's register of designated workers that relates to the designated worker. (2) A notice under subsection (1) must be in the approved form. Division 3—Related provisions 33—Related provisions (1) Without limiting any other provision, an industry board may amend a register at any time in order to ensure that the register is kept up to date. (2) A register will be kept by an industry board in such form as the board thinks fit (including in electronic form). (3) A register of employers must be kept available for inspection, without fee, in accordance with the regulations and a copy of an entry on a register of employers may be obtained on payment of the prescribed fee. (4) A designated worker, or a person acting on behalf of a designated worker, may inspect an entry on a register of designated workers that relates to the designated worker, without fee, and may obtain a copy of such an entry on the register on payment of the prescribed fee. Part 4—Long service leave entitlements Editorial note— Part 4 had not come into operation at the date of the publication of this version. 34—Effective service entitlement (1) Subject to this Act, a designated worker's entitlement to long service leave, or payment on account of or in lieu of long service leave, is determined according to the worker's aggregate effective service entitlement. (2) A person will be credited with 3 months of effective service as a designated worker if they have— (a) worked as a designated worker in the relevant designated sector for 1 or more days in a return period; or (b) 1 or more days of allowable absence from work in the relevant designated sector in a return period. (3) The total of months credited under subsection (2) to a person in relation to any return period applying under that subsection is the person's aggregate effective service entitlement. (4) Subject to this Act, a person does not need to be credited with effective service in consecutive return periods to retain their effective service entitlement. (5) If— (a) a designated worker who has an effective service entitlement of less than 120 months is dismissed from employment as a designated worker; and (b) the relevant industry board is satisfied, after affording the former designated worker and their former employer an opportunity to be heard, that the designated worker was properly dismissed on the ground of serious and wilful misconduct, any effective service entitlement of the worker accrued in that employment is cancelled. (6) If— (a) a designated worker has an effective service entitlement of less than 84 months; and (b) the designated worker has not previously had an effective service entitlement of 120 months or more; and (c) the designated worker ceases to be employed as such for a continuous period that is equal to, or longer than, the preservation period for some reason other than physical or mental disability and no right to preservation of the effective service entitlement arises under this Act, the effective service entitlement will be cancelled (but the subsection does not apply where the designated worker continues to be employed by the person in whose employment the entitlement accrued (either wholly or in part) or where the designated worker continues to be employed by an employer within the relevant designated sector). (7) If a person takes long service leave, or receives a payment on account of or in lieu of long service leave, the person's effective service entitlement is reduced accordingly. (8) If an industry board is satisfied that a person has been incorrectly registered as a designated worker under this Act, the board may, in accordance with a policy adopted by the board— (a) cancel an effective service entitlement assigned to the person; and (b) take such action as the board considers appropriate. 35—Crediting effective service under this Act and the Long Service Leave Act 1987 (1) This section applies if a worker changes the capacity in which they work for an employer— (a) from work in a designated sector to work that is not in a designated sector; or (b) from work that is not in a designated sector to work in a designated sector. (2) If a person employed as a designated worker commences work in a different capacity in the service of the same employer, the following provisions apply: (a) the person's continuity of service is preserved, but only in respect of the aggregate of the periods of work undertaken in each capacity in the service of that employer (and not in respect of any periods of work undertaken with any other employer); (b) the period of effective service credited under this Act in respect of work undertaken by the person as a designated worker in the service of that employer (but no other employer) will be credited to the person under the Long Service Leave Act 1987 (on the basis that 1 month of effective service under this Act is equivalent to 1 month of service under that Act) (and an effective service so credited will then be cancelled under this Act). (3) If a person employed in a capacity other than as a designated worker commences work as a designated worker in the service of the same employer, the following provisions apply: (a) the person's continuity of service is preserved, but only in respect of the aggregate of the periods of work undertaken in each capacity in the service of that employer (and not in respect of any periods of work undertaken with any other employer); (b) the period of service in respect of work undertaken by the person other than as a designated worker in the service of that employer (but no other employer) calculated in accordance with the Long Service Leave Act 1987 up to the point of change in the nature of employment will be credited as effective service for the purposes of this Act (on the basis that 1 month of service under the other Act is equivalent to 1 month of effective service under this Act). (4) If— (a) a person's service under the Long Service Leave Act 1987 includes a period of effective service credited under subsection (2); and (b) the person becomes entitled to long service leave, or to a payment in lieu of long service leave, under that Act, the relevant industry board must pay to the person's employer (being the employer referred to in subsection (2)) an amount calculated as follows: where— A is the amount payable OWP is the person's ordinary weekly pay applicable under the Long Service Leave Act 1987 M is the total number of months of effective service entitlement of the person as a designated worker under this Act minus the portion of effective service entitlement representing work undertaken by the person as a designated worker in the service of any employer in the relevant designated sector other than the employer referred to in subsection (2). (5) If— (a) a person's effective service entitlement under this Act includes a period of service credited under subsection (3); and (b) the person becomes entitled to long service leave, or to a payment on account of long service leave, under this Act, the relevant industry board may recover from the person's employer (being the employer referred to in subsection (3)) an amount calculated as follows: where— A is the amount payable OWP is the person's ordinary weekly pay applicable under this Act D is the person's period of continuous service accrued under the Long Service Leave Act 1987 at the time that the person commenced work as a designated worker in the relevant designated sector (expressed in days). (6) This section operates subject to any provision made in the regulations to take into account service for which a person has already taken long service leave or received a payment on account of long service leave. 36—Crediting effective service between different designated sectors (1) This section applies if a worker changes the capacity in which they work for an employer from 1 designated sector (the first sector) to another designated sector (the second sector). (2) If a person employed as a designated worker commences work in a different designated sector (the second sector) in the service of the same employer, the following provisions apply: (a) the person's continuity of service is preserved; (b) the period of effective service credited in respect of work undertaken by the person as a designated worker in the first sector will be credited to the person in respect of the long service leave scheme under this Act for the second sector; (c) the industry board for the first sector will make a payment to the industry board for the second sector in accordance with a scheme established by the Minister for the purposes of this section. (3) If the person subsequently commences work as a designated worker in another designated sector in the service of the same employer (including by working again in the first sector), this section will apply in the same way as it applied to the first change of employment from 1 designated sector to another (and may be applied from time to time to subsequent changes in employment in different designated sectors in the service of the same employer). 37—Long service leave entitlement (1) Subject to this Act, a designated worker who has an effective service entitlement of 120 months or more is entitled to— (a) 13 weeks long service leave in respect of the first 120 months; and (b) 1.3 weeks of long service leave in respect of each subsequent 12 months of effective service entitlement. (2) The employer in the relevant designated sector by whom a designated worker is employed when the long service leave entitlement arises must grant long service leave to the person if the person applies to the employer to take leave. (3) After a person's long service leave entitlement arises, a subsequent employer in the relevant designated sector by whom the person is employed must grant long service leave to the person if the person applies to the subsequent employer to take the leave. (4) However— (a) a person is not entitled to take long service long service leave under this section in respect of work with a particular employer in the relevant designated sector within the first 3 months after commencing work with that employer; and (b) an application for long service leave must be made at least 2 months before the person seeks to commence the leave; and (c) the commencement of long service leave must take into account the reasonable needs of the employer; and (d) the employer and the person may agree that the worker take leave in separate periods subject to the qualification that each such period must be at least 1 week in duration; and (e) the employer and the person may agree that the person will receive a payment in lieu of long service leave, or a part of long service leave (with the calculation of the payment corresponding to the payment that would be made if the person took the leave). (5) Subsection (4)(a) and (b) operate subject to any agreement between the employer and the person entitled to the leave about when the person will take long service leave. (6) An agreement under subsection (4)(e) must be in writing signed by the employer and the person. (7) If— (a) a person takes long service leave; or (b) a person's employment with the employer referred to in subsection (2) comes to an end before the person takes accrued long service leave and the person, in the approved form, makes an election under this provision, the industry board for the relevant designated sector must pay to the person an amount calculated multiplying the person's ordinary weekly pay by the period of leave referred to in paragraph (a) or (b) (as the case may be). (8) If an agreement is entered into under subsection (4)(e), the industry board for the relevant designated sector must pay the amount payable under the agreement. (9) An entitlement under this section applies subject to an enterprise agreement that provides for— (a) long service leave to be taken; or (b) a payment in lieu of long service leave, in respect of a shorter period of effective service entitlement, employment or service. (10) If an employer in a designated sector enters into an enterprise agreement that is within the ambit of subsection (9), the employer must provide a copy of the enterprise agreement to the relevant industry board within 21 days after the end of the return period in which the enterprise agreement was entered into. (11) If a person dies, any entitlement of the person under this section vests in the person's personal representative. 38—Leave allowed before entitlement accrues (1) An employer and a designated worker may agree on the worker taking long service leave in anticipation of the entitlement accruing to the worker under this Act if an enterprise agreement expressly provides for such an agreement. (2) The agreement is to be based on 1.3 weeks of leave in respect of each 12 months of effective service entitlement. (3) An agreement to take long service leave under this section must be in writing and signed by the employer and the person. (4) If an agreement is entered into under this section, the industry board for the relevant designated sector must pay to the person the amount that would be payable if the leave was being taken under section 37, including, if relevant, an enterprise agreement referred to in section 37(9). (5) If— (a) a person takes long service leave under this section and receives a payment from an industry board; and (b) before the entitlement to that leave accrues, the person ceases to work as a designated worker in the relevant designated sector for a continuous period of 12 months or more, the industry board for the relevant designated sector may recover from the person an amount determined under the regulations (subject to any exception or qualification prescribed by the regulations). 39—Cessation of employment (1) If, on application to the industry board for the relevant designated sector in the approved form, the industry board is satisfied that— (a) — (i) a designated worker has attained an effective service entitlement of 84 months or more (but less than 120 months); or (ii) a designated worker has attained an effective service entitlement of less than 84 months and has previously had an effective service entitlement of 120 months or more; or (iii) a designated worker has attained an effective service entitlement of 120 months or more but has not taken all of the long service leave to which the worker is entitled; and (b) the designated worker has— (i) died; or (ii) ceased to work as a designated worker in the relevant designated sector because of a physical or mental disability that will prevent the person from working as a designated worker in the sector for a continuous period of 12 months or more; or (iii) ceased to work as a designated worker in the relevant designated sector and will not be working as a designated worker in the sector for a continuous period of 12 months or more (from the time when the person ceased to work as a designated worker in the sector), the industry board must pay the person (or the person's personal representative) an amount calculated as follows: where— A is the amount payable OWP is the person's ordinary weekly pay applicable under this Act as at— (a) if the worker has died—the day of death; (b) in any other case—the day on which the person ceased work as a designated worker M is the effective service entitlement (expressed in months). (2) If an industry board rejects an application under subsection (1), the board must give the applicant written notice of its decision in accordance with the regulations. 40—Entitlement if payment already made A designated worker is not entitled to take leave or be paid for an entitlement under this Act if a payment has already been made in respect of a period of service that corresponds to the effective service entitlement under this Act. Part 5—Funds Division 1—Industry funds 41—Industry board to establish industry fund (1) An industry board must establish a fund (an industry fund) for the purposes of this Act. (2) The name of the industry fund must comply with any requirement prescribed by the regulations. (3) The industry fund will be administered by the industry board. (4) The industry fund will consist of— (a) levies received by the industry board from employers in its designated sector; and (b) income and accretions produced by the investment of money from the fund; and (c) money advanced to the industry board for the purposes of the fund; and (d) penalties and fines recovered by the industry board under this Act; and (e) any money required to be paid into an industry fund by the regulations; and (f) any other money payable to the industry fund under this Act. (5) There will be payable from the industry fund— (a) any long service leave benefits that the industry board is liable to pay under this Act; and (b) costs incurred by the industry board in performing its functions under this Act; and (c) any payment to another industry board required or contemplated by this Act; and (d) any payment required or authorised by the regulations; and (e) any other money required or authorised to be paid from the industry fund under this Act. 42—Exemption from taxes and charges An industry fund, and all transactions relating to an industry fund, are exempt from all taxes and other charges imposed under a law of the State. 43—Investment of industry fund (1) An industry board may invest money that is not immediately required for the purposes of its industry fund. (2) An industry board must, when investing money in an industry fund, take into account policies and guidelines (if any) determined by the Treasurer after consultation with the Minister. 44—Loans for training purposes (1) An industry board may, with the approval of the Minister and the Treasurer, lend money from its industry fund to an industrial association or organisation for the purpose of establishing or operating a group training scheme for its designated sector. (2) A loan under subsection (1) will be subject to such terms and conditions as the Minister and the Treasurer think appropriate. 45—Borrowing by industry board (1) An industry board may, for the purposes of an industry fund, borrow money from the Treasurer or, with the approval of the Treasurer, from any other person. (2) A liability incurred with the approval of the Treasurer under subsection (1) is guaranteed by the Treasurer. (3) A liability incurred by the Treasurer under a guarantee arising by virtue of subsection (2) will be satisfied out of the Consolidated Account of the State (which is appropriated to the necessary extent). 46—Investigation of industry fund (1) An industry board must ensure that an investigation into the state and sufficiency of its industry fund is carried out on a yearly basis. (2) An investigation will be carried out by an actuary appointed for the purpose by the industry board. (3) The actuary carrying out an investigation will report to the industry board on the result of the investigation and must state whether any reduction or increase is necessary in the rates of contribution to the industry fund. (4) An industry board must, on receipt of a report under subsection (3)— (a) provide a copy of the report to the Minister; and (b) include with the report an indication as to whether the industry board intends to vary, or leave unaltered, the rates of contribution to the industry fund required under section 48. (5) The Minister must cause a copy of a report provided to the Minister under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report. Division 2—Common funds 47—Treasurer may authorise investment common funds (1) The Treasurer may, after consultation with the Minister, authorise the establishment of 1 or more investment common funds for the collective investment of 2 or more industry funds (in whole or in part). (2) The collective investment of funds under this section does not affect any purposes for which a particular industry fund must be applied. (3) A common fund under this section will operate subject to any policies and guidelines (if any) determined by the Treasurer after consultation with the Minister. (4) Without limiting subsection (3), a policy or guideline may provide for 1 or more of the following: (a) the periodic distribution of income from a common investment fund to the relevant industry funds; (b) the application of income from a common investment fund to the capital of the common investment fund; (c) the payment of costs and the application of expenses related to the management, operation and investment of a common investment fund. Part 6—Levies 48—Imposition of levy (1) An employer in a designated sector is liable to pay a levy to the relevant industry board under this section. (2) Subject to this section, the levy payable by an employer is the declared percentage of the total remuneration paid to each of the employer's designated workers in the designated sector during the period to which the levy relates. (3) The percentage fixed by an industry board under this section— (a) may only be varied by the board— (i) in accordance with an indication to the Minister under section 46(4)(b); and (ii) after 14 days has elapsed since the provision of the indication; and (b) must be less than or equal to 3%. (4) No levy is payable by an employer in respect of— (a) a designated worker who is employed by the employer for less than 3 days in a month; or (b) subject to an exception prescribed by the regulations—an apprentice. (5) The regulations may— (a) prescribe payments made to or for the benefit of a designated worker that will be taken as constituting remuneration for the purposes of this section; and (b) prescribe payments made to or for the benefit of a designated worker that will not be taken as constituting remuneration for the purposes of this section. (6) For the purposes of this section, if an employer pays a designated worker at a rate that exceeds the rate that applies to the designated worker under this Act for the purpose of determining the worker's ordinary weekly pay, the amount of the excess may be disregarded for the purpose of calculating the remuneration paid by the employer. (7) In this section— declared percentage means a percentage fixed by the relevant industry board and declared by notice in the Gazette. 49—Returns by employers (1) Every employer in a designated sector must, within 21 days after the end of each return period, furnish the relevant industry board with a return in the approved form containing such information as may be prescribed or required by the approved form. (2) The return must be accompanied by the levy payable by the employer in respect of the return period. (3) An industry board may require an employer to provide— (a) a certificate signed by the employer, or a person acting on the employer's behalf, verifying the information contained in a return; or (b) some other verification of the information of a kind stipulated by the board. (4) An industry board may— (a) determine that a requirement of this section will not apply to a particular employer or employers of a particular class; and (b) impose, by notice to the particular employer or by notice in the Gazette, such other requirements on the employer or employers as may be appropriate in the circumstances. (5) An employer must not contravene a requirement imposed under this section. Maximum civil penalty: $10 000. (6) An employer who is registered with an industry board but who does not employ any designated workers in a particular return period will nevertheless be taken to be an employer in the particular designated sector for the purposes of this section. 50—Recovery on default (1) If an employer— (a) fails or neglects to furnish a return when required by or under this Act; or (b) furnishes a return that the relevant industry board has reasonable grounds to believe to be defective in any respect, the board may make an assessment of the levy payable for the return period on the basis of estimates made by the board. (2) If an employer fails to pay a levy required by or under this Act, the relevant industry board may make an assessment of the levy payable by the employer. (3) An industry board must, as soon as is reasonably practicable after making an assessment under this section, give written notice of the assessment to the employer to whom the assessment relates. (4) An employer to whom a notice of an assessment is given under this section must pay the amount of the assessment within 21 days, or such longer period as the notice may allow. Maximum civil penalty: $10 000. 51—Penalty for late payment (1) If an employer fails to furnish a return or to pay a levy as and when required by or under this Act— (a) the amount of any levy in arrears will be increased by penalty interest at the prescribed rate; and (b) the relevant industry board may impose on the employer a fine of an amount (not exceeding the prescribed amount) fixed by the board. (2) An industry board may for any proper reason remit penalty interest or a fine imposed under subsection (1) wholly or in part. 52—Recovery of levies A levy payable under this Act (and any penalty interest or fine imposed by an industry board) is a debt due to the relevant industry board and may be recovered by the board in a court of competent jurisdiction. 53—Refund of overpayments (1) If a levy is overpaid, the industry board that received the payment must refund the amount of the overpayment within the period prescribed by the regulations. (2) If a levy has been paid incorrectly and the relevant industry board subsequently discovers, as a result of an error associated with the payment of the levy, it has made a payment in respect of a long service leave entitlement, or purported long service leave entitlement, for which it was not liable, the board may deduct from an amount that would otherwise be refunded under subsection (1) an amount equal to the payment made by the board as a result of the error. Part 7—Review Editorial note— Part 7 had not come into operation at the date of the publication of this version. 54—Review by SAET A person who is dissatisfied with a decision of an industry board under this Act may, within 30 days after the day on which the decision was made (or within such longer period as SAET may allow), apply to SAET under Part 3 Division 1 of the South Australian Employment Tribunal Act 2014 for a review of the decision. 55—Effect of pending review by SAET (1) An obligation to pay a levy or a right to recover a levy is not suspended by the commencement of proceedings for a review by SAET. (2) If the assessment of a levy is altered on a review, a due adjustment must be made and, if the assessment is increased, a further amount is payable in accordance with the increase and, if the assessment is decreased, the industry board that received the levy must refund any amount overpaid. Part 8—Civil penalties Editorial note— Part 8 had not come into operation at the date of the publication of this version. 56—Civil penalties (1) If the words "Maximum criminal penalty" and "Maximum civil penalty" both appear at the end of a provision of this Act, this indicates that the industry board for the relevant designated sector may, as an alternative to criminal proceedings, bring proceedings in SAET (constituted as the South Australian Employment Court) for the imposition of a civil penalty in respect of a contravention of the provision. (2) If the words "Maximum civil penalty" appear at the end of a provision of this Act without the words "Maximum criminal penalty", this indicates that the industry board for the relevant designated sector may bring proceedings in SAET (constituted as the South Australian Employment Court) for the imposition of a civil penalty in respect of a contravention of the provision (and in such a case a contravention does not constitute a criminal offence). (3) The proceedings in SAET for the imposition of a civil penalty in respect of a contravention may be brought against any person who is involved in the contravention (and a person who is found to have been involved in a contravention of a provision is taken to have contravened the provision). (4) A person is involved in a contravention of a provision if (and only if) the person— (a) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has aided, abetted, counselled or procured the contravention; or (d) has conspired with others to effect the contravention. (5) If in proceedings for the imposition of a civil penalty SAET is satisfied, on the balance of probabilities, that the person against whom the proceedings are brought has contravened the provision to which the proceedings relate, SAET may order the person to pay an amount as a civil penalty not exceeding the amount specified by this Act as the maximum civil penalty in relation to that contravention. (6) If conduct of a person constitutes a contravention of 2 or more provisions of this Act, a civil penalty may be imposed in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 amount as a civil penalty in respect of the same conduct). (7) If proceedings are brought against a person for the imposition of a civil penalty under this section, criminal proceedings may not be brought against the person in respect of the same contravention (or alleged contravention). (8) Proceedings for the imposition of a civil penalty under this section may only be brought by an industry board. (9) The amount of any civil penalty is payable to the industry board that brought the proceedings. (10) Proceedings for the imposition of a civil penalty under this section may be commenced at any time within 6 years after the day on which the relevant contravention occurred. (11) SAET must apply the rules of evidence and procedure when hearing proceedings under this section. (12) SAET may, in any proceedings under this section, only order a party to pay costs to another party if SAET believes that the party ordered to pay the costs has acted unreasonably and, in so doing, caused the other party to incur costs or additional costs. Part 9—Miscellaneous Editorial note— Part 9 had not come into operation at the date of the publication of this version. 57—Self‑employed contractors and working directors (1) This section applies to— (a) a self‑employed contractor in a designated sector; and (b) a person who is employed under a contract of service in a designated sector by a body corporate of which the person is a director. (2) A person to whom this section applies may, on application in the approved form, be registered by the industry board constituted in relation to the relevant designated sector under this section. (3) A registered person is eligible to participate in an investment scheme established by the relevant industry board for the purposes of this section. (4) If, in the case of a self‑employed contractor— (a) the contractor had previously been a designated worker in the relevant designated sector; and (b) the contractor was not entitled to long service leave or a payment for pro rata long service leave when they ceased