New South Wales Consolidated Acts

LONG SERVICE LEAVE (METALLIFEROUS MINING INDUSTRY) ACT 1963 - SECT 3

3 Definitions

(1) In this Act, unless the context or subject-matter otherwise indicates or requires:
"Agreement" means an enterprise agreement within the meaning of the Industrial Relations Act 1996 .
"Award" means an award within the meaning of the Industrial Relations Act 1996 .
"Employer" means any person employing any worker or workers and includes the Crown.
"Inspector" means an inspector appointed under the Industrial Relations Act 1996 .
"Metalliferous mine" means any place, open cut, shaft, tunnel, drive, level or other excavation, drift, gutter, lead, vein, lode or reef wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any mineral substance by any mode or method, and any place adjoining thereto on which any product of the metalliferous mine, as hereinbefore defined, is stacked, stored, crushed or otherwise treated and includes:

(a) any quarry,

(b) any place where two or more men are employed in connection with prospecting operations for the purposes of the discovery or exploration of or for any mineral substance whether by drilling, boring or any other method, and

(c) so much of the surface of any place and the buildings, workshops, changehouses, structures and works thereon surrounding or adjacent to the shaft, outlets or site of a metalliferous mine, as hereinbefore defined, as are occupied, together with the mine, for the purposes of or in connection with the working of the mine, or the removal from the mine of refuse, or the health, safety or welfare of persons employed in, at or about the mine.

"Mineral substance" means any substance specified in the Schedule.
"Ordinary pay", in relation to any worker, means the sum of:

(a) where the worker is, on the prescribed date, remunerated wholly in relation to an ordinary time rate of pay fixed by the terms of the worker’s employment:

(i) the amount of the ordinary remuneration of the worker, as on the prescribed date, or

(ii) the average weekly amount of the ordinary remuneration which was earned by the worker as a worker during that part of the period of 5 years ending on the prescribed date during which the worker was so remunerated,

whichever is the greater,

(b) where the worker is, on the prescribed date, remunerated otherwise than wholly in relation to an ordinary time rate of pay so fixed-the amount of the average weekly wage which was earned by the worker as a worker (being the average of the amounts received by the worker each week under those terms after excluding any amount payable to the worker in respect of shift work, overtime or other penalty rates) during the period actually worked by the worker during:

(i) the period of 12 months, or

(ii) the period of 5 years,

ending on the prescribed date, whichever amount of average weekly wage is the greater,

(c) the average weekly amount of bonuses received by the worker as a worker employed by the person who is the worker’s employer on the prescribed date during:

(i) where paragraph (a) (i) or (b) (i) applies for the purpose of calculating the worker’s ordinary pay, the period of 12 months, or

(ii) where paragraph (a) (ii) or (b) (ii) applies for that purpose, the period of 5 years,

ending on the prescribed date, and

(d) where the worker was, immediately before the prescribed date, provided with board or lodging by the person who is the worker’s employer on the prescribed date-the cash value of that board or lodging.

"Quarry" means any place, open cut or excavation wherein or whereby any operation is carried on above ground for or in connection with the purpose of obtaining any mineral substance and any place adjoining thereto on which any product of the quarry, as hereinbefore defined, is stacked, stored, crushed or otherwise treated.
"Worker" means a person employed in, at or about a metalliferous mine, whether on salary or wages or piecework rates, or as a member of a butty-gang; and the fact that a person is working under a contract for labour only, or substantially for labour only, or as a lessee of any tools or other implements of production, shall not in itself prevent such person being held to be a worker.

(2) For the purposes of:

(a) the definition of "ordinary pay" in subsection (1) and of subsection (2A), "prescribed date", in relation to a worker:

(i) means except as provided in subparagraph (ii), the date immediately preceding the date on which that worker enters, or is deemed to have entered upon long service leave or the date of that worker’s death, as the case may require, or

(ii) where the worker has, in relation to any period of long service leave, entered into an agreement authorised by subsection (2B), means, in relation to that period of long service leave, the date of that agreement,

(b) paragraph (a) of that definition, "ordinary remuneration", in relation to a worker, means the remuneration for that worker’s normal weekly number of hours of work calculated at the time rate of pay fixed by the terms of the worker’s employment for the worker’s work under the terms of the worker’s employment reduced by any amount payable to the worker in respect of shift work, overtime or other penalty rates or, where 2 or more time rates of pay are so fixed, the amount of remuneration for that worker’s normal weekly number of hours of work calculated at the higher or highest of those rates and so reduced,

(c) paragraph (c) of that definition, "bonus", in relation to a worker, means any amount received by that worker under the terms of the worker’s employment under any bonus, incentive or other similar scheme, not being an amount taken into consideration in determining the amount of the average weekly wage of that worker referred to in paragraph (b) of that definition, and

(d) paragraph (d) of that definition, the cash value of any board or lodging provided for a worker shall be deemed to be its cash value as fixed by or under the terms of the worker’s employment or, if it is not so fixed, shall be computed at the rate of $15, or such greater sum as may be prescribed instead, a week for board and $5, or such greater sum as may be prescribed instead, a week for lodging.

(2A) For the purposes of subsection (2) (b), where no normal weekly number of hours of work is fixed for a worker under the terms of the worker’s employment, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the worker during the period of 12 months, or 5 years, as the case may require, ending on the prescribed date.

(2B) Where long service leave has accrued to a worker and the employer of that worker and that worker have agreed that the taking of the long service leave due to the worker or any part thereof shall be postponed that employer and that worker may agree that, for the purposes of the definition of "ordinary pay" in subsection (1), the prescribed date shall, in relation to that long service leave or part, as the case may be, be the date the agreement was entered into.

(2C) Despite anything to the contrary in this section, the ordinary pay of a worker is not to include or be increased by the amounts paid under any bonus, incentive or other similar scheme if the annual amount of the worker’s ordinary pay (excluding any amounts so paid) exceeds the amount prescribed by the regulations for the purposes of this subsection.

(3) Where, by any provision of the Industrial Relations Act 1996 , a person who is engaged on work in, at or about a metalliferous mine is deemed for the purposes of that Act to be an employee and any other person is deemed for such purposes to be the employer of that employee, then for the purposes of this Act the person so deemed to be an employee shall be deemed to be a worker and the person so deemed to be the employer shall be deemed to be the employer of that worker.

(4) Notes included in this Act do not form part of this Act.