CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 37A
CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 37A
37A—Self-employed contractors and working directors
(a) a
self-employed contractor in the construction industry; and
(b) a
person who is employed under a contract of service in the
construction industry by a body corporate of which he or she is a director.
(1a) A person to whom
this section applies may, on application to the Board in a form approved by
the Board, be registered by the Board under this section.
(2) A
registered person is eligible to participate in an investment scheme
established by the Board for the purposes of this section.
(3) If, in the case of
a self-employed contractor—
(a) the
contractor had previously been a construction worker; and
(b) he
or she was not entitled to long service leave or a payment for pro rata long
service leave when he or she ceased work as a construction worker; and
(c) he
or she commenced work as a self-employed contractor in the
construction industry within the prescribed period after cessation of his or
her employment as a construction worker; and
(d) the
application for registration under this section was made within six months
after commencing work as a self-employed contractor in the
construction industry (or within such longer period as the Board may, in its
absolute discretion, allow),
any effective service entitlement is preserved on registration.
(a) a
person who applies for registration under subsection (1a) was—
(i)
a director to whom this section applies at the
commencement of the Construction Industry Long Service Leave (Miscellaneous)
Amendment Act 2000 ; or
(ii)
a construction worker immediately before becoming a
director to whom this section applies; and
(b) the
application for registration was made within six months after the commencement
of that Act or the date on which the person became a director (as the case
requires),
any effective service entitlement in respect of that person immediately before
the commencement of that Act or the time at which he or she became a director
is preserved on registration.
(a) a
person was not entitled to long service leave or a payment for pro rata long
service leave when he or she ceased work as a construction worker; and
(b)
within the prescribed period after ceasing work as a construction worker he or
she becomes a director to whom this section applies; and
(c) he
or she applies for registration under this section within six months after
becoming a director (or within such longer period as the Board may, in its
absolute discretion, allow),
any effective service entitlement is preserved on registration.
(4) The following
provisions apply to the investment scheme established by the Board for the
purposes of this section:
(a)
the Board will, for the purposes of the scheme, before the commencement of
each financial year—
(i)
set a contribution rate; and
for the financial year; and
(b) a
registered contractor or the employer of a
director to whom this section applies may then, in respect of each (or any)
period prescribed by the regulations, pay to the Board an amount equal to the
relevant contribution rate (and a payment may be made by a contractor or
employer in advance or, with the approval of the Board, in arrears); and
(c) the
registered person will then, in accordance with a scheme prescribed by the
regulations (but subject to this section), be credited by the Board
with—
(i)
the prescribed number of days of effective service
entitlements; and
(ii)
the amount of the payment; and
(iii)
interest in accordance with the rate set under
paragraph (a)(ii).
(5) A payment under
subsection (4)(b) must be accompanied by a return in a form approved by
the Board containing information as may be prescribed or required by
the Board.
(6) A registered
person who attains an effective service entitlement of 2 600 days
(including any effective service entitlement preserved under
subsection (3)) is entitled to an amount calculated as follows:
where—
"A" is the amount payable
"OWP" is the registered person's ordinary weekly pay applicable under this Act
(applying any presumption prescribed by the regulations)
"D" is the effective service entitlement preserved under subsection (3),
(3a) or (3b) (or, if no such entitlement is preserved, zero)
"CI" is the total of the registered person's entitlement credited under
subsection (4)(c)(ii) and (iii).
(7) If, on application
to the Board under this subsection in a form approved by the Board, the Board
is satisfied that—
(a)
—
(i)
a registered person has attained an effective service
entitlement of 1 820 days (including any effective service entitlement
preserved under subsection (3), (3a) or (3b)); or
(ii)
a registered person has attained an effective service
entitlement of less than 1 820 days and has previously had an
effective service entitlement of 2 600 days or more; and
(b) the
registered person has—
(i)
died; or
(ii)
ceased to work in the construction industry because of
physical or mental disability that will prevent him or her from working in the
construction industry in the future, or because of some other significant
pressing necessity; or
(iii)
retired from his or her work and does not intend to work
in the future,
the Board must pay to the registered person (or his or her personal
representative) an amount calculated in the same manner as under
subsection (6).
(a) on
application to the Board under this subsection in a form approved by
the Board, the Board is satisfied that a registered person has ceased work in
the construction industry; and
(b) the
registered person does not have an entitlement under subsection (6) or
(7),
the Board must pay to the registered person an amount calculated as follows:
where—
"A" is the amount payable
"OWP" is the registered person's ordinary weekly pay applicable under this Act
(applying any presumption prescribed by the regulations)
"D" is any effective service entitlement preserved under subsection (3),
(3a) or (3b), subject to the qualification that if the aggregate of the
registered person's effective service entitlement preserved under
subsection (3), (3a) or (3b) and the registered person's effective
service entitlement credited under subsection (4)(c)(i) does not equal or
exceed 1 820 days, then D will be taken to be zero
"C" is the total of the registered person's entitlement credited under
subsection (4)(c)(ii) (without interest).
(9) If the Board
rejects an application under this section, the Board must give the applicant
written notice of its decision (setting out a brief statement of the Board's
reasons for making its decision).
(10) If a
registered person—
(a)
ceases to be a self-employed contractor in the construction industry or a
director to whom this section applies; and
(b) does
not have an entitlement under subsection (6) or (7); and
(c) has
not received and will not be receiving a payment from the Board under
subsection (8); and
(d) has
become (or has become again) a person to whose employment this Act applies
(see section 5) within the prescribed period after ceasing to be a
self-employed contractor or a director to whom this section applies (as the
case requires),
the effective service entitlement accrued under this section together with the
effective service entitlement (if any) preserved under subsection (3),
(3a) or (3b) will be credited to the person for the purposes of Part 3.
(11) In this
section—
"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 director or
members of the governing body of the body corporate are accustomed to act;
"director to whom this section applies" means a person referred to in
subsection (1)(b);
"registered person" means a person registered by the Board under
subsection (1a).