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1
Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Contract Cleaning Industry (Portable
Long Service Leave) Bill 2005
Explanatory Notes
Objectives of Legislation
The objective of the Bill is to provide a portable long service leave scheme
for eligible workers in the contract cleaning industry in Queensland. The
scheme will operate in a similar manner to the existing portable long
service leave scheme for the building and construction industry, which has
been operating in Queensland since 1992, and is administered by QLeave.
Reasons for the Legislation
The Queensland Government position on portable long service leave
schemes (PLSLS) as stated to the Queensland Industrial Relations
Commission (QIRC) Review of Long Service Leave (Case No.B1404 of
1999) is that prior to government enacting legislation to support a PLSLS
the industry parties must reach agreement on issues such as labour cost,
employment impact and arrangements for funding the scheme. Industry
parties are also to be encouraged to consider implementing schemes
through an award, agreement or in legislation.
Since 2002 the unions and employer organizations in the contract cleaning
industry have jointly lobbied government for the establishment of a
PLSLS.
Union stakeholders strongly support a PLSLS claiming that within the
contract cleaning industry it is common for workers to frequently move
from one employer to another to find continuous work or to be transferred
when a contract changes hands. Consequently, many workers do not stay
long enough with one employer to qualify for long service leave although
they frequently remain in the industry for longer than the qualifying period
for long service leave entitlement (10 years).
Employer support for a PLSLS in this industry is based on the impact of
recent federal and state industrial tribunal decisions which indicate that
where a contract changes hands and existing workers are retained in
employment by the new employer (i.e. a transfer), then those workers will
have portability of long service leave entitlements. This results in the last
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
employer bearing the total liability for all long service leave accrued both
before and after the transfer.
Costs for Government Implementation
The PLSLS will be funded by employer contributions calculated as a
percentage of worker's wages. Independent actuarial assessment has
calculated the necessary employer contributions at 2.0% of worker's
wages. This level of contribution will allow the scheme to be
administratively self supporting as well as meet its commitments to pay
long service leave to industry workers.
Fundamental Legislative Principles
Clauses 58 (Authority may require information or documents from
employer) and 125 (Authorised officer may require record kept under s66)
allow provisions for gathering of information. In complying with this
provision the information may tend to incriminate a person. Clause 58
includes a defence for self-incrimination; clause 125 does not. The
requirement to keep records and provide information is central to the
operations of this Bill. The provisions allow an efficient process for the
Authority to seek information from an employer that they have or are
required to keep and allow the employer reasonable time to comply. In the
absence of this provision, the Authority would need to use warrants to
access this information in a more formal and intrusive manner. The absence
of a protection from self-incrimination in clause 125 is considered
appropriate in the circumstances.
Clause 65 (Civil penalty for failure to give return or pay levy) makes a
person liable for a civil penalty (currently 1 penalty unit [$75] per month)
for failing to give a return or pay a levy. This penalty is in addition to any
offence penalty ordered by an Industrial Magistrate and interest for late
payments. While as a general rule the imposition of a penalty is a matter for
the courts after an offence has been proved beyond a reasonable doubt, it is
considered appropriate that a civil penalty provision be included in the Bill
in the interests of achieving greater compliance in a cost effective manner.
Pursuing employers for a small amount of unpaid levy through a
prosecution action is not cost effective. The existence of the civil penalty
provision is a cost effective method of encouraging compliance by
signaling the intentions of the administering agency. The imposition of the
civil penalty avoids the cost of court actions and will assist in paying for
the cost of pursuing offenders. A civil penalty provision is a feature of the
legislation governing the portable long service leave scheme for the
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
contract cleaning industry in the A.C.T. and has reportedly assisted in
industry compliance in that jurisdiction.
Clauses 133 (Executive officers must ensure corporation complies with
Act) and 134 (Liability of directors for amounts) permit the prosecution of
executive officers of a corporation where the corporation has committed an
offence and for the liability for offence penalties to attach to a company
director.
There are precedents for the use of some or all of these types of provisions
in other legislation (e.g. the Industrial Relations Act 1999). Their inclusion
in the Bill is considered necessary for the effective enforcement of
penalties and to prevent unscrupulous business operators from hiding
behind the status of a corporation and therefore avoiding any personal
responsibility and making collection of the levy and worker information
impossible.
Clause 137 (Offence of improper disclosure of information) subclause (e)
provides for the Minister to authorise disclosure of information obtained in
the administration of this Act. Such a provision will allow QLeave to share
information e.g. industry participant and payroll data with other
government agencies such as Workcover to facilitate compliance and other
objectives of the Bill. The clause gives an express power to the Minister to
authorise a person to make such a disclosure.
Consultation
The initial impetus for the establishment of a PLSLS for the contract
cleaning industry in legislation and administration of that scheme by
government came from the bi-partisan support of unions and employer
organisations in the industry. Detailed consultation with those stakeholders
during its development has established clear support for the Bill.
A Regulatory Impact Statement was prepared and released for public
comment in relation to the proposed Regulation. Only one formal
submission was received. This submission was from the Building Service
Contractors' Association of Australia, supporting the introduction of the
Scheme and recognising the need for the Scheme to be implemented in
Queensland.
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 provides a short title of the Act as the Contract Cleaning Industry
(Portable Long Service Leave) Act 2005.
Commencement
Clause 2 provides that the provisions of the Act will commence on 1 July
2005
Act binds all persons
Clause 3 provides for the Act to bind all persons including the State, the
Commonwealth and the other States to the extent of the power of
Parliament.
Main purpose of this Act
Clause 4 details the main purposes of the Act as providing for a portable
long service leave scheme for the contract cleaning industry and
requirement for registration of both employers and workers.
Part 2 Interpretation
Definitions
Clause 5 provides for particular terms in the Act to be defined in a
dictionary in Schedule 2.
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Contract Cleaning Industry (Portable Long Service
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Meaning of cleaning work
Clause 6 provides the meaning of "cleaning work" by confirming the
nature of included work. This includes work performed in Queensland that
has as its chief or only function, the bringing of premises into or keeping of
premises in a clean state.
Meaning of contract cleaning industry
Clause 7 provides the meaning of the "contract cleaning industry" defining
it as the industry in which individuals are engaged to perform cleaning
work for other people. This is not designed to include people engaged
directly to perform cleaning work (e.g. a house owner engaging a person to
clean the owner's house).
Who is an employer
Clause 8 provides a definition of an "employer" as a person engaging 1 or
more workers to perform work in the contract cleaning industry.
Nominated entities are excluded for the purposes of the meaning of
employer including the Commonwealth, State or Local Government or a
company whose only workers are directors if the directors participate in the
management of the company or share in its profits.
Who is a worker
Clause 9 provides the definition of a "worker" as an individual engaged
under a contract of service by an employer to perform cleaning work or
who provides labour only or works for another person (unless the person
performing the work is paid to achieve an outcome, is required to supply
plant and equipment or tools of trade and is liable for any defect
rectification). "Worker" definition also includes a person who performs
cleaning work and supervision of other workers regardless of the position
title.
Specific exclusions from the "worker" definition are persons working in a
managerial or clerical capacity, persons who are a member of a partnership
where they share in the profits and/or participate in management and
persons employed under a contract of service with the Commonwealth,
State or Local Government.
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Meaning of information notice
Clause 10 defines an information notice as a notice to a person regarding a
decision by the authority and provides for the person to apply for a
reconsideration of any decision and relevant time limits.
Grounds that are reasonable in the circumstances
Clause 11 requires that any grounds for a reconsideration of a decision
made by the authority, by a person and under this Act, must be reasonable
in the circumstances.
Notes in text
Clause 12 describes a note in the text of this Act as being a part of the Act.
Part 3 Contract Cleaning Industry (Portable
Long Service Leave) Authority
Division 1 Establishment of authority
Authority established
Clause 13 provides for the establishment of the Contract Cleaning Industry
(Portable Long Service Leave) Authority
Division 2 Functions and powers of authority
Authority's functions
Clause 14 sets out the primary function of the Authority as providing an
equitable and efficient system of portable long service leave to workers in
the contract cleaning industry. In addition, other functions include
providing educational and awareness programs to the industry, giving
advice and making recommendations to the Minister and performing other
functions conferred under this or another Act.
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Contract Cleaning Industry (Portable Long Service
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Authority's powers
Clause 15 establishes the powers of the Authority as the powers of an
individual and lists some examples. These powers may be exercised inside
and outside of Queensland.
Division 3 Establishment of board for authority
Board established
Clause 16 prescribes the Authority as having a board of directors whose
role includes responsibility for the Authority's management and
commercial policy, ensuring the Authority achieves corporate goals and
objectives and performs its functions in an appropriate, effective and
efficient way.
Composition of board
Clause 17 prescribes the composition of the board and how they are to be
appointed. The board will have not more than 8 directors consisting of the
chairperson, deputy chairperson, 2-3 directors as representatives of
employers and 2-3 directors as representatives of workers. The number of
representatives from each group must be the same. The deputy chairperson
must have specified knowledge or experience.
Appointment of directors
Clause 18 specifies the process of appointment of the board of directors is
by the Governor in Council by industrial gazette notice for a term of not
more than 3 years.
Disqualification from board
Clause 19 sets out criteria for disqualification from the board of persons
declared insolvent or having a conviction for an indictable offence.
Vacation of office
Clause 20 sets out the conditions under which a director vacates the office
of director.
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Casual vacancy
Clause 21 prescribes the manner of filling a casual vacancy on the board by
the Governor in Council.
Remuneration and other entitlements of directors
Clause 22 provides for the remuneration and other entitlements of board of
directors to be set by the Governor in Council.
Division 4 Business of the board
Conduct of business
Clause 23 prescribes the conducting of business by the board in a manner
that is considered appropriate by the board.
Frequency of meetings
Clause 24 requires the chairperson to call meetings of the board as required
however at least once in every 3 months. The chairperson must call a board
meeting if one worker and one employer director so request.
Presiding at meetings
Clause 25 provides for the chairperson to preside at all meetings. In the
absence of the chairperson, the deputy chairperson will preside at meetings
with all the powers of the chairperson.
Quorum
Clause 26 specifies the need to have a quorum of 3 directors, inclusive of
the chairperson or deputy chairperson, one director representing workers
and one director representing employers before the conduct of a meeting of
the board.
Conduct of meetings
Clause 27 provides for the conduct of the board meetings with reference to
voting, including abstaining and casting votes, and participation using
contemporaneous and continuous communication.
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Contract Cleaning Industry (Portable Long Service
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Decisions made by written reference
Clause 28 specifies the written reference process for decisions made by
directors at other than a meeting of the board .
Minutes
Clause 29 prescribes the keeping of records of all board decisions with
those records being presented to the next Board meeting for confirmation
and subsequent sign-off by the director presiding at that subsequent
meeting.
Disclosure of interests by directors of the board
Clause 30 sets out provisions for disclosure by directors of any interest
(financial or otherwise) in a decision to be considered by the board and
their disqualification from taking part in any discussion or decision about
the issue.
Division 5 Administration
Administration subject to Minister
Clause 31 specifies the administration of the Act by the Authority, subject
to the Minister
General manager
Clause 32 appoints the General Manager of the Building and Construction
Authority as General Manager
Management of authority by general manager
Clause 33 stipulates the General Manager to manage the Authority subject
to the board and permits any thing done by the General Manager for or on
behalf of the Authority to be taken as done by the Authority.
Staff of the authority
Clause 34 specifies that the Building and Construction Authority's staff are
to provide administrative support to the Contract Cleaning Industry
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
(Portable Long Service Leave) Authority and anything necessary for the
performance of the functions of the authority.
Authority's seal
Clause 35 specifies the safe-keeping and use of the Authority's seal.
Judicial notice of signatures
Clause 36 requires judicial notice to be taken of the signature of a person
who holds or who held a relevant office within the Authority.
Document presumed to be properly made
Clause 37 specifies the proper making of any Authority documentation if
signed by the Chairperson, Deputy Chairperson or the General Manager.
Contracts or agreements
Clause 38 details the manner in which the Authority's power to make
contracts or agreements is to be exercised.
Agreement about administration of this Act
Clause 39 provides for an agreement between the Authority and the
Building and Construction Authority regarding the payment of
administration costs such as staff, electricity and rent and the subsequent
recovery of these costs.
Division 6 Financial Provisions
Funds of authority
Clause 40 specifies the categories and permissible application of funds of
the Authority.
Proposed budget and progress budget reports
Clause 41 establishes the requirement for Ministerial approval of the
annual budget and provision of progress reports on the operations of the
budget.
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Actuarial investigation of funds
Clause 42 specifies the requirements for actuarial investigations at least
every 2 years and for the board to report to the Minister on these findings
and make recommendations in regard to actuarial position and adequacy of
funds.
Application of Finance Acts
Clause 43 establishes the Authority to operate as a statutory body under the
Financial Administration and Audit Act 1977 and the Statutory Bodies
Financial Arrangements Act 1982.
Part 4 Registration
Division 1 Registration of workers
Authority to keep register of workers
Clause 44 requires that the Authority must keep a register of registered
workers in the contract cleaning industry in Queensland
Particulars to be entered in register of workers
Clause 45 details the particulars to be entered into the Authority's register
for each registered worker.
Application for registration as a registered worker
Clause 46 provides for an application to become a registered worker to be
made in an approved form.
Grant or refusal to grant application for registration as a
registered worker
Clause 47 requires the Authority to consider applications for worker
registration and make a decision for approval or refusal of applications. In
cases of refusal the applicant must be given an information notice
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Worker may become a registered worker other than by
application
Clause 48 provides for a person to become a registered worker other than
by application through information received by the Authority showing
them to be a worker.
When does a person become a registered worker
Clause 49 specifies the manner in which a registration date is determined in
different circumstances. In any event the earliest registration date is 1 July
2005.
Cancellation of registration as a registered worker
Clause 50 details the circumstances for cancelling the registration of a
registered worker and the required processes for notification of
cancellation and removal from the register.
Division 2 Registration of employers
Authority to keep register of employers
Clause 51 requires that the Authority must keep a register of registered
employers in the contract cleaning industry
Particulars to be entered into register of employers
Clause 52 details the particulars to be entered into the Authority's register
for each registered employer.
Application for registration as a registered employer
Clause 53 requires an employer to apply for registration in an approved
form within 7 days after becoming an employer. A penalty is prescribed for
failure to apply for registration and for failure to complying with a request
for information.
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Contract Cleaning Industry (Portable Long Service
Leave) Bill 2005
Court order about application for registration as a registered
employer
Clause 54 specifies that in addition to imposing a penalty for non-
compliance the court may order the employer to apply to the Authority for
registration within a stated time and provides for a penalty for failure to
comply.
Grant or refusal to grant application for registration as a
registered employer
Clause 55 requires the Authority to consider an application for registration,
grant or refuse such an application and if refused ensure that the employer
is given an information notice.
Employers to give notice of a change to information given
Clause 56 requires the employer to give notice to the Authority within 14
days of any change to information in the register (other than the person's
date of registration as an employer). A penalty is prescribed for failure to
comply.
Cancellation of registration as a registered employer
Clause 57 provides for the application for cancellation of registration of
employers who no longer engage workers to perform cleaning work.
Division 3 Power to ensure employers are registered
Authority may require information or documents from employer
Clause 58 provides for the Authority to pursue a person believed to be an
unregistered employer through a written notice seeking information or
documentation within a stated time. A penalty is prescribed for failure to
comply.
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Contract Cleaning Industry (Portable Long Service
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Part 5 Service credits, returns and notices
What is an engagement period for a worker
Clause 59 specifies an engagement period as commencing when a worker
is engaged by an employer to undertake cleaning work and ending on the
day the person ceases to be engaged by an employer. It is not relevant
whether it is the employer that engages the person is the employer who
stops engaging the person. This provision underlies the concept of
continuity of engagement in the industry and not directly to one employer.
The engagement period is taken to include a day the worker did not
perform cleaning work because the worker was dismissed for the period to
ensure the worker did not take long service leave during the employer's
employment or the worker sustained an injury preventing the worker from
performing contract cleaning work.
Crediting service
Clause 60 stipulates that if cleaning work is performed in a return period,
then the worker is credited with 1 day's service for each day in the return
period, irrespective of whether the worker performed cleaning work on a
particular day. The worker must not be credited for any day that is not part
of an engagement period.
In the case of injury, a worker will receive credited service from the day of
injury to a period of 6 months, after the day of injury ends or if the worker
engages in employment, whichever first occurs.
Limitations on crediting service
Clause 61 sets some limitations on crediting service including a maximum
total of 365 days per year.
Returns
Clause 62 requires the employer to submit a return for the period, in the
approved form, within 14 days after the end of the nominated return period.
Examples of the information required on the return are provided.
Verification of the information provided may be requested by the
Authority. A penalty is prescribed for failure to comply with specified
obligations.
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Contract Cleaning Industry (Portable Long Service
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Payments of levy
Clause 63 requires an employer to pay to the Authority the levy payment
for each worker as determined in accordance with this act. A penalty is
prescribed for failure to comply with specified obligations.
Exemption from lodging return
Clause 64 provides for an employer to apply for exemption from lodging
returns in the approved form. The authority may grant the exemption if
satisfied that the employer no longer engages worker/workers to perform
cleaning work or the employer complies with or makes contributions to a
similar scheme in another State. The exemption may be revoked if it is no
longer applicable and the authority must provide an information notice
about the decision.
Civil penalty for failure to give return or pay levy
Clause 65 requires payment of a civil penalty for failing to lodge a return or
make a levy payment within the required time. Provision is also made for
the Authority to remit these amounts given the circumstances. The courts
may in addition to finding a person guilty of an offence in relation to
lodging a return or paying the levy make an order to have them lodge the
return and pay the levy. This penalty is equivalent to the amount of one
penalty unit, (currently $75) and is similar to that in the A.C.T. legislation
and the S.A. building industry long service leave legislation. In both cases
it has had a very positive influence on compliance as well as going some
way to offset the costs of the additional resources needed to pursue non-
payment. An additional safeguard has been included by limiting it to 40
units.
Employer to keep record for each worker
Clause 66 specifies the particular records that an employer must keep for
each worker. These records are to be kept for at least 6 years after the last
entry is made and may be required for inspection by an authorized officer.
A penalty is prescribed for failure to comply with specified obligations.
The records that the employer is required to keep reflect those required
under industrial relations legislation and should not impose any additional
material requirements
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Contract Cleaning Industry (Portable Long Service
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Notice to registered workers about service credits
Clause 67 requires the Authority to give an annual notice to all registered
workers detailing certain information recorded in the register of workers.
This includes the number of days' service credited for the financial year,
the overall total service credited since registration and the total ordinary
wage amount paid in the financial year.
Decisions about ordinary wages by the authority
Clause 68 provides for the Authority to make a decision regarding total
ordinary wage amounts stated by the employer in a return. If the Authority
decides that the total ordinary wages stated is not reasonable it may specify
another amount as the ordinary wages of the worker and provide an
information notice about the decisions as well as notifying the employer of
any sums due.
Retrospective service credits
Clause 69 permits registered workers to be granted retrospective service
credits of up to 5 years for service with one or more employers in the
cleaning industry during the 5 years prior to the commencement of the
scheme. A maximum of 365 days will be credited for any year in the 5 year
period.
The long service leave liability will remain with the employer of a worker
who has an entitlement to long service leave under the Industrial Relations
Act 1999 at the commencement of this Act. In these cases no retrospective
credit will be made.
Time frames for application for retrospective service credits
Clause 70 specifies timeframes for an application for retrospective service
credits as 2 years after the commencement of this Act or a longer period if
the Authority considers special circumstances exist. An application must
be made in the approved form and be accompanied by proof that the
applicant worked in the industry and proof of the ordinary wages for the
period covered by the application.
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Contract Cleaning Industry (Portable Long Service
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Part 6 Long Service Leave
Application for long service leave entitlement
Clause 71 permits a registered worker or the personal representative of a
deceased registered worker to make application for a long service leave
entitlement.
Entitlement to long service leave
Clause 72 specifies the entitlement to long service leave of 8.67 weeks after
the registered worker has accrued 3650 days or more service (10 years x
365 days). A proportionate payment of long service leave is due if the
worker has accrued at least 2555 days service where the worker
permanently ceases work in the industry or dies. The entitlement does not
diminish any other entitlement to long service leave, but enhances the
benefits available to workers by recognizing service to the industry rather
than to a single employer.
Amount of long service leave payment
Clause 73 details that the amount of long service leave payment to a worker
is calculated by a formula of the sum of earnings of a worker as a
proportion of their moderated wages over time, paid at the current rate of
pay for a nominated classification level at the time the application is made.
The classification level to be used in the calculation will be prescribed
under a regulation. Leave is not to be paid for periods of less than 5 days.
Long service leave not payable in certain cases
Clause 74 prohibits a worker from claiming payment for a long service
leave entitlement for a day's service if a long service leave payment has
already been paid for the day under this or another Act, award or relevant
industrial agreement.
Payments to employers
Clause 75 specifies that an employer who pays a registered worker all or
part of their long service leave entitlement may apply for reimbursement.
The amount to be paid to an employer is calculated by a formula of the sum
of earnings of a worker as a proportion of their moderated wages over time,
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Contract Cleaning Industry (Portable Long Service
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paid at the current rate of pay for a nominated classification level at the
time the payment was made by the employer.
The clause also specifies a 3 month period to apply after the employer
makes the payment however this may be extended up to 2 years. The
clause also stipulates that the employer must not be paid more than the
amount they paid to the worker.
Under existing industrial relation legislation in the event that a contract
changes hands and existing workers are retained in employment by the new
employer, there is portability of long service leave entitlements. This leads
to the last employer bearing that full liability of long service leave for all
leave accrued both before and after the transfer. This provision will allow
employers in these circumstances to receive maximum benefit possible
under the act.
If employer unable to pay benefit
Clause 76 provides for employers who are unable to pay a long service
leave benefit to pay to the Authority the amount of the benefit less an
amount that the employer would have been entitled to be paid if the full
amount had been paid to the worker. On payment by the employer to the
Authority, the Authority must pay to the registered worker the value of the
worker's entitlement.
Authority may pay if employer insolvent
Clause 77 specifies that where an employer becomes insolvent a long
service leave payment be made directly by the Authority to the worker or
personal representative and is the difference between the employer
payment to the worker and the amount representing the value of the
worker's long service leave.
If credit for service accrued elsewhere
Clause 78 permits the Authority to approve an entitlement based on service
with this scheme and another scheme with which reciprocal arrangement
has been made (e.g. a scheme in another state). If the Authority makes a
payment in terms of this clause it must as soon as practicable take steps to
secure reimbursement by the corresponding Authority.
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Contract Cleaning Industry (Portable Long Service
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If a corresponding authority pays
Clause 79 provides for the accruing of credits within Queensland however
another Authority pays the entitlement and ensures that the Queensland
Authority makes reimbursement of the payment in accordance with an
agreement as part of arrangements with other states (see clause 144).
Authority's liability confined to long service leave
Clause 80 clarifies that the Authority is not taken to be an employer of a
worker who takes or may take a benefit under the Act. The Authority's
liability is confined to long service leave.
Payment may be deferred
Clause 81 provides for the entitlement payment by the Authority to be
deferred upon request by a person making application when agreed
between the person and the authority.
Part 7 Long service leave levy
Imposition of levy
Clause 82 imposes a levy on ordinary wages paid to workers in the contract
cleaning industry.
Amount of levy
Clause 83 provides that the amount of the levy for a worker is a percentage
prescribed by a regulation, of the ordinary wages paid to the worker
Authority may give notice if levy is not paid
Clause 84 provides for the Authority to seek information or documents
relating to wages if the Authority believes that all or part of the levy has not
been paid. A penalty is prescribed for failure to comply with specified
obligations. An individual need not comply if by doing so it might tend to
incriminate the individual.
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Contract Cleaning Industry (Portable Long Service
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Additional levy payments
Clause 85 permits the assessment, written notice of additional payment and
payment of an additional amount of levy where the levy payable is more
than the levy paid for a worker. It is an offence not to pay the additional
amount of levy within 14 days of notice for additional payment. A penalty
for failure to comply, is prescribed.
Appointment of agents for collection of levy amounts
Clause 86 permits the Authority to enter into an agreement with an agent
for the collection of the amounts of long service levy. This provision is
identical to that in the building industry where for ease of payment by levy
payers, it may be paid at any Australia Post Office.
Interest on, and extension of time for payment of, levy
Clause 87 prescribes that any levy that has not been paid by the due date
will bear an amount of compound interest as prescribed by regulation.
Where the Authority considers that there are special circumstances it may
defer payment of the levy or waive or reduce the amount of interest
payable.
Recovery of levy amount
Clause 88 provides for the Authority to recover an unpaid levy as a debt
and may be sued for and recovered in a court.
Penalties no relief from levy
Clause 89 provides that the payment of a penalty does not relieve the
person from the liability to pay the levy.
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Contract Cleaning Industry (Portable Long Service
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PART 8 Appeals
Division 1 Purpose of this part
Purpose of part 8
Clause 90 provides for a reconsideration and appeals from either a decision
made, an entry made to either the register of workers or register of
employers or a direction or notice given, by the authority.
Division 2 Internal reconsideration of original decision
Reconsideration of original decision of authority
Clause 91 provides for a person aggrieved by an original decision of the
Authority to make a written application to the authority for a
reconsideration of the matter. The clause sets out a process and time limits
for dealing with the application for reconsideration.
Division 3 Appeals to industrial magistrate
Appeal
Clause 92 provides for application, timeframes and processes for a person
not satisfied with an original decision to appeal to an industrial magistrate.
Starting appeal
Clause 93 details processes for commencing an appeal to an industrial
magistrate.
Directions
Clause 94 provides for the industrial magistrate to issue directions about
the conduct of the appeal.
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Contract Cleaning Industry (Portable Long Service
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Where appeal heard
Clause 95 provides for the appeal to be heard at the place the notice of
appeal is filed unless otherwise directed by an industrial magistrate.
Attendance notice
Clause 96 provides for an industrial magistrate to require a person to attend
a hearing of the appeal to give evidence or produce documents by sending
the person a written attendance notice. A penalty is prescribed for failure to
comply with specified obligations.
Division 4 Appeal to industrial commission
Clause 97 provides for an appeal to the industrial commission against a
decision of the authority regarding retrospective credits.
Nature of appeal
Clause 98 provides for the nature of an appeal to be by way of rehearing on
the record but also allows for the hearing of fresh or additional evidence at
the discretion of the commission.
Decision on appeal
Clause 99 requires the industrial commission to deal with an appeal
promptly and any decision is final and conclusive.
Division 5 Appeal to Industrial Court
Appeal from industrial magistrate to Industrial Court
Clause 100 provides that the authority or a person may appeal to the
industrial court if dissatisfied with a decision of the industrial magistrate or
industrial commission.
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Part 9 Authorised officers and their powers
Division 1 Authorised Officers
Appointment and qualifications
Clause 101 provides that the General Manager may appoint public service
employees or any other person prescribed under a regulation as an
authorised officer but only if satisfied that the person is qualified because
of expertise or experience.
Appointment conditions and limit on powers
Clause 102 provides that authorised officer powers may be limited by
conditions stated in an instrument of appointment, a regulation or a notice
signed by the general manager.
Issue of identity card
Clause 103 provides that an authorised officer must be issued with an
identity card by the general manager containing specified information
including an expiry date. A single identity card may be issued to an
authorised officer exercising powers under more than one Act.
Production or display of identity card
Clause 104 provides that in exercising a power in relation to a person an
authorised officer must produce their identity card for inspection before
exercising the power or have the card clearly visible to the person. If this is
not practicable the card must be produced at the first reasonable
opportunity.
When authorised officer ceases to hold office
Clause 105 specifies when an authorised officer ceases to hold office
including in accordance with any condition placed on holding the office of
authorised officer.
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Return of identity card
Clause 106 provides that a person who ceases to be an authorised officer
must return their identity card within 21 days of the cessation. A penalty is
prescribed in respect of non-compliance with the provision.
Division 2 Procedure for entry
Power to enter places
Clause 107 provides power to authorised officers to enter places with the
occupier's consent, a public place, where entry is authorised by a warrant
or to an employers place of business. An authorised officer's power to enter
places with the purpose of asking consent is also set out in this clause.
Entry with consent
Clause 108 provides for an authorised officer to enter a place with the
consent of the occupier once the purpose of entry is explained and the
occupier advised that the occupier is not required to give consent. If
consent is given the authorised officer may ask the occupier to sign an
acknowledgement of consent.
Application for warrant
Clause 109 provides for an authorized officer to apply in writing to an
industrial magistrate for a warrant for a place.
Issue of warrant
Clause 110 provides for the issuing of a monitoring warrant by an
industrial magistrate for entry to a place once reasonable grounds are
established. The industrial magistrate is to issue the warrant if satisfied
evidence of an offence is at the place or will be within the next 7 days.
Details the warrant must state are outlined including the hours of entry and
the date the warrant expires.
Application by electronic communication and duplicate warrant
Clause 111 provides for an application for a warrant to be made by
electronic communication and for the issuing of a duplicate warrant for
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administrative purposes. This may only be made in urgent or special
circumstances.
Defect in relation to a warrant
Clause 112 provides that a warrant cannot be invalidated by a defect in the
warrant unless the defect affects the substance of the warrant in a material
particular.
Warrants procedure before entry
Clause 113 provides for the processes an authorised officer named in a
warrant must take before entering the place under the warrant.
Division 3 Powers of authorised officers after entry
General powers of authorised officer after entering places
Clause 114 provides the general powers of an authorised officer who enters
a place.
Power to require reasonable help or information
Clause 115 requires an occupier or a person at the place to give reasonable
help to an authorised officer to exercise powers in an investigation
situation. It is an offence not to provide reasonable assistance to the
authorised officer.
Division 4 Power of authorised officers to seize
evidence
Seizing evidence at place
Clause 116 provides for the circumstances under which an authorised
officer may seize any thing at a place to provide evidence relevant to an
investigation being conducted.
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Securing seized things
Clause 117 provides for the securing of items seized by an authorised
officer
Tampering with seized things
Clause 118 provides that a person must not tamper with a thing seized by
an authorised officer or with something restricting access to it. A penalty is
prescribed for failure to comply with specified obligations.
Powers to support seizure
Clause 119 provides powers of an authorised officer to support seizure by
requiring a person in control of the thing to take it to a stated place in a
stated time. A penalty is prescribed for failure to comply with written
requirements made by authorised officer.
Receipt for seized things
Clause 120 requires the authorised officer to give a receipt for a seized
thing to the person from whom it was seized or for a receipt to be left in a
conspicuous position. The receipt must generally describe the thing and its
condition. The requirement to give a receipt is waived where it is
impracticable or unreasonable to do so because of a thing's nature,
condition or value.
Forfeiture of seized things
Clause 121 provides for the forfeiture to the State of a seized thing if the
owner cannot reasonably be found or the thing cannot reasonably be
returned after making reasonable efforts.
Dealing with forfeited things
Clause 122 provides for dealing with forfeited things that become the
State's property.
Return of seized things
Clause 123 requires that a seized thing that has not been forfeited must be
returned to its owner at the end of 6 months or if a proceeding for an
offence involving it is commenced within 6 months, at the end of
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proceedings and appeal from the proceedings. The thing unless it is
forfeited must be returned to its owner immediately its continued retention
as evidence ceases to be necessary.
Access to seized things
Clause 124 provides that unless it is impracticable or unreasonable to do so
and unless the thing is forfeited, the owner of a thing must be allowed to
inspect it and if it is a document, copy it.
Division 5 Other enforcement matters
Authorised officer may require record kept under s 66
Clause 125 provides for an authorised officer to require by notice
production of records from an employer that are required to be kept under
clause 66. A penalty is prescribed for failure to comply with specified
obligations. The employer must comply unless they have a reasonable
excuse. It is not a reasonable excuse that giving the records might tend to
incriminate the employer.
False or misleading information
Clause 126 makes it an offence for a person to make a false or misleading
statement. A penalty is prescribed for failure to comply with specified
obligations.
False or misleading document
Clause 127 provides for dealing with a person who gives an authorised
officer a document containing false or misleading information. A penalty is
prescribed for failure to comply with specified obligations.
Obstructing authorised officers
Clause 128 requires a person not to obstruct an authorised officer in the
exercise of a power, without reasonable excuse. A penalty is prescribed for
failure to comply with specified obligations.
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Impersonation of authorised officer
Clause 129 provides for dealing with a person who impersonates an
authorised officer. A penalty is prescribed for failure to comply with
specified obligations.
Notice of damage
Clause 130 makes provision for an authorised officer who damages
property or a person under the direction of an authorised officer damages
property to give written notice of the damage to the owner of the property.
Compensation
Clause 131 permits a person to claim compensation from the authority if
the person incurs loss or expense due to the exercise of power.
Executive officers must ensure corporation complies with Act
Clause 132 stipulates the responsibility of executive officers of a company
to ensure the company's compliance with this Act. Each of the company's
executive officers will have committed an offence for any compliance
failure. The offence is that of failing to ensure the corporation complies
with its obligations under the act. Defences of acting diligently or not
being in a condition to influence the conduct of the corporation are
available to the officers. A penalty is prescribed for failure to comply with
specified obligations.
Liability of directors for amounts
Clause 133 provides for any company liability to pay a penalty to be
attached to each individual who was a director of the company when an
offence was committed and when the penalty was imposed. This only
applies when the penalty has not been paid within the prescribed time. It
will assist compliance by acting as a deterrent and prevent business
operators from circumventing their obligations under the act.
Holders of office to act honestly and with propriety
Clause 134 provides for the holders of office to act honestly and with
propriety when exercising powers and includes board directors or persons
otherwise performing work for the Authority. A penalty is prescribed for
failure to comply with specified obligations.
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Offence of improper disclosure of information
Clause 135 ensures that any person found directly or indirectly recording or
disclosing information obtained in administering this Act, unless otherwise
authorized or with the consent of the affected person, is committing an
offence. A penalty is prescribed for failure to comply with specified
obligations.
Subsection (e) provides for the Minister to authorise disclosure of
information obtained in the administration of this Act. Such a provision
will allow QLeave to share information e.g. industry participant and
payroll data with other government agencies such as Workcover to
facilitate compliance and other objectives of the Bill. The Minister has
been provided with the express power to authorise a person to make such a
disclosure.
Protection of person from dismissal
Clause 136 makes it an offence for an employer to dismiss a person merely
because the person gave information under this Act to an officer of the
Authority. A penalty is prescribed for failure to comply with specified
obligations.
Part 10 Proceedings for offences
Proceedings for offences
Clause 137 stipulates the nature of proceedings for offences against this
Act before an industrial magistrate and the timeframes for starting
proceedings.
Powers of industrial magistrate
Clause 138 provides for the powers of an industrial magistrate as conferred
under the Industrial Relations Act 1999.
Evidentiary certificates about returns
Clause 139 provides that an evidentiary certificate about returns signed by
the General Manager is to be accepted as evidence of specified matters
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stated in the certificate. This provision simplifies the process for proving
matters maintained in formal records and is similar to provisions in many
other pieces of legislation.
The content of the certificate may still be subject to challenge under the
Evidence Act 1997 and in that situation the necessary formal steps would
be undertaken. Additionally, this process has time and cost saving
advantages for the authority, the other party and the court.
Evidentiary certificates about levy payments
Clause 140 provides that a certificate signed by the General Manager about
levy payments is evidence of the matter stated in the certificate. This
provision simplifies the process for proving matters maintained in formal
records and is similar to provisions in many other pieces of legislation.
The content of the certificate may still be subject to challenge under the
Evidence Act 1997 and in that situation the necessary formal steps would
be undertaken. Additionally, this process has time and cost saving
advantages for the authority, the other party and the court.
Other evidentiary certificates
Clause 141 provides for other evidentiary certificates signed by the General
Manager are to be accepted as evidence of specified matters stated in the
certificate. This provision simplifies the process for proving matters
maintained in formal records and is similar to provisions in many other
pieces of legislation.
The content of the certificate may still be subject to challenge under the
Evidence Act 1997 and in that situation the necessary formal steps would
be undertaken. Additionally, this process has time and cost saving
advantages for the authority, the other party and the court.
Other evidentiary provisions
Clause 142 allows for other evidentiary provisions to be used in a
proceeding under this act regarding an appointment of and validity of
signature of a person appointed under this Act and statements made in a
complaint starting a proceeding.
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Penalties to be paid to authority
Clause 143 provides for penalties to be paid to the Authority as a result of a
proceeding for an offence against this Act.
Part 11 Miscellaneous
Arrangements with other States
Clause 144 provides for Minister to enter into an agreement to administer
the law of another State about making long service leave payments to
persons engaged in the contract cleaning industry in the other State. The
matters that may be included in the agreement are detailed.
Declaration about arrangements with other States
Clause 145 provides for a regulation to declare that a State for which an
agreement is in force, to be a reciprocating State or Territory and declare a
law of that State to be a corresponding law for this Act.
General manager's power of delegation
Clause 146 permits the General Manager the power of delegation to an
appropriately qualified member of the Building and Construction
Authority's staff.
Protecting officials from liability
Clause 147 provides for the protection of officials from liability in cases
where an act is done, or omission made, honestly and without negligence
under this Act. The Contract Cleaning Industry (Portable Long Service
Leave) Authority rather than an official will be held liable for any civil
action that may ensue through the aforementioned.
This protection for officers is seen as essential for the proper administration
of the Act as they will be able to undertake their duties secure in the
knowledge that they will be able to do so fearlessly providing it is done in a
proper way. However, this protection will not apply where the official acts
in any way outside the bounds of the Act or other requirements such as a
code of conduct.
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Authority may indemnify person administering Act
Clause 148 provides for the authority to indemnify a person for the
reasonable costs associated with defending a criminal proceeding if the
person is found not guilty of the offence.
Approved forms
Clause 149 provides for the General Manager person to approve forms for
use under this Act.
Regulation-making power
Clause 150 provides for the Governor in Council to make regulations under
this Act and limits the maximum penalty which may be imposed for a
breach of a regulation.
Part 12 Transitional Provision
Relationship with other Acts, awards etc
Clause 151 ensures that a right or entitlement that a registered worker has
or may have under this Act does not limit the worker's entitlements under
another Act, award or relevant industrial instrument.
Funds borrowed from Building and Construction Authority
Clause 152 provides for the Building and Construction Authority to
provide initial funds where the Authority does not have sufficient funds to
pay amounts due under this act. The Authority must repay the funds to the
Building & Construction Authority along with any interest component
within a set timeline as detailed in a mutual agreement. Regardless, these
amounts must be repaid no later than 5 years from commencement.
Initial proposed budget for 2005-2006 financial year
Clause 153 ensures that the Authority give to the Minister before 1 August
2005, all details of its proposed budget for the remainder of the 2005-2006
financial year.
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Registration as an employer if employer at commencement
Clause 154 stipulates that a person who is an employer at the
commencement of the scheme or becomes an employer within 28 days of
the commencement must register within 35 days of commencement. This
will permit a more flexible timing for employers at the start of the scheme
rather than the general time of 7 days provided fro in clause 53.
Part 13 Consequential Amendment
Amendment of other Act
Clause 155 provides for Schedule 1 to amend the Act mentioned in it.
Schedule 1 Amendment of other Act
Schedule 1 provides for the insertion of `or the Contract Cleaning Industry
(Portable Long Service Leave) Act 2005' after `Act' in section 32(2)(e) of
the Building and Construction Industry (Portable Long Service Leave) Act
1991. This allows the building and construction authority to make the
necessary funds available for the scheme to commence operations.
Schedule 2 Dictionary
Schedule 2 provides for particular terms in the Act to be defined in a
dictionary in the schedule to the Act.
In the Dictionary the definition of the term `premises' is intended to
include houses and buildings but not the ground surrounding a building or
house or a swimming pool and the ground surrounding the swimming pool.
Premises would not include planes, trains, boats and vehicles.
© State of Queensland 2005