New South Wales Consolidated Acts

LONG SERVICE LEAVE (METALLIFEROUS MINING INDUSTRY) ACT 1963 - SECT 5

5 Exemptions

(1) Section 4 shall not apply to any worker who is employed by an employer as a member of a class of workers for whom provisions entitling the worker (whether immediately or upon the fulfilment of certain conditions) to leave in the nature of long service leave are made:

(a) by an award or agreement, whether made before or after the commencement of this Act, and such provisions are more favourable to the worker than those of section 4, or

(b) by or under any Act, other than this Act or the Industrial Relations Act 1996 .

Where the worker ceases to be a member of a class of workers as aforesaid and at the same time ceases to be in the employment of the worker’s employer the worker’s service as a member of such class shall not be service for the purposes of section 4.

(2)

(a) Subject to section 5A, the Industrial Relations Commission may, subject to such conditions as it thinks fit to impose, exempt any employer from the operation of the provisions of this Act relating to long service leave in respect of any workers in any case where it is satisfied that the workers are entitled to benefits under any scheme conducted by or on behalf of the employer, which scheme provides for the granting of long service leave as such to the workers on terms not less favourable than those specified in this Act and that it is in the best interests of the workers that the exemption should be granted.

(b) Any exemption granted to an employer in relation to long service leave pursuant to section 88C (4) of the Industrial Arbitration Act 1940 or section 5 (2) of the Long Service Leave Act 1955 and in force immediately before the commencement of this Act shall, in so far as it relates to workers, be deemed to have been granted pursuant to paragraph (a).

(c)

(i) Any exemption granted pursuant to paragraph (a) shall not apply to an employer in respect of any worker who, within a period of three months after the date from which the exemption takes effect, or from the date of commencement of the worker’s employment, as the case may require, has by notice in writing to the employer elected to be subject to the provisions of this Act relating to long service leave in lieu of those provided for in the scheme conducted by or on behalf of the employer.

(ii) Any exemption deemed by paragraph (b) to have been granted pursuant to paragraph (a) shall not apply to an employer in respect of a worker who has before the commencement of this Act by notice in writing given pursuant to subsection (4A) of section 88C of the Industrial Arbitration Act 1940 , or pursuant to subparagraph (i) of paragraph (c) of subsection (2) of section 5 of the Long Service Leave Act 1955 , elected to be subject to the provisions of an award or industrial agreement relating to long service leave, or to the provisions of the Long Service Leave Act 1955 , in lieu of those provided for in the scheme conducted by or on behalf of the worker’s employer or who after such commencement has by notice in writing to the employer elected to be subject to the provisions of this Act relating to long service leave in lieu of those provided for in the scheme conducted by or on behalf of the employer within the time within which the worker would have been entitled to make an election, as provided in the said subparagraph (i), had the said subparagraph continued to apply to workers after the commencement of this Act.

(iii) Notwithstanding any provision of any scheme referred to in subparagraph (i) or (ii) where a worker has given notice in writing as aforesaid, the worker shall be entitled to such benefits under the scheme, other than long service leave, as the worker would have been entitled to receive had the worker voluntarily left the service of the employer upon the date on which the notice was given: Except as aforesaid upon the notice being given the rights of any worker to any benefits under the scheme and the obligations under the scheme of the employer and any persons charged with the administration of the scheme in respect of that worker and any person claiming under the worker or in respect of the worker’s employment shall cease and determine.

(d)

(i) The Industrial Relations Commission may vary the terms of any exemption granted or deemed by paragraph (b) to have been granted pursuant to paragraph (a) or any condition subject to which the exemption was granted, and may revoke the exemption.

(ii) The Industrial Relations Commission may, of its own motion, and on application by an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 or an employer concerned, shall review the terms of any exemption granted before the commencement of this Act, which is deemed by paragraph (b) to have been granted pursuant to paragraph (a).
Where after such a review the Commission is of the opinion that the benefits under a scheme, the subject of the exemption, are not as favourable as those specified in this Act, or that it is no longer in the best interests of the workers concerned that the exemption should continue to operate, the Commission may vary the terms of such exemption or any condition subject to which the exemption was or was deemed to have been granted, or may revoke the exemption.