CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 4
CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 4
(1) In this Act,
unless the contrary intention appears—
"actuary" means a Fellow or Accredited Member of the Institute of Actuaries of
Australia;
"agreement" means—
(a) an
enterprise agreement under the Fair Work Act 1994 ; or
(b) an
enterprise agreement under the Fair Work Act 2009 of the Commonwealth; or
(c) an
agreement given continuing effect under the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
"allowable absence", in relation to a construction worker, means an absence of
that worker from work, being an absence of a kind declared by regulation to be
an allowable absence;
"apprentice" includes a trainee under a contract of training for a trade;
"award" includes—
(a) an
award or order of SAET;
(b) an
award, determination or order of Fair Work Australia under the
Fair Work Act 2009 of the Commonwealth;
(c) an
award or determination given continuing effect under the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 of the
Commonwealth;
"the Board" means the Construction Industry Long Service Leave Board;
"builder" means a person who carries out building work;
"building" includes part of a building;
"building industry" means the industry of carrying out building work;
"building site" means a place at which building work is carried out and
includes any adjacent work area;
"building work" means—
(a) the
construction or erection of a building or structure that is or is to be fixed
to the ground and wholly or partially fabricated on site;
(b) any
preliminary site preparation work (including pile driving) for the
construction or erection of any such building or structure;
(c) the
alteration, maintenance, repair or demolition of any building or structure;
(d) the
laying of pipes and other prefabricated materials in the ground, and any
associated excavation work.
"construction industry" means the building industry or the
electrical and metal trades industry;
"construction worker" means a person to whose employment this Act applies (see
section 5) and includes a former construction worker;
"contract of service" includes a contract of training for a trade;
"corresponding law" means a law of another State, or of a Territory, of the
Commonwealth declared by regulation to be a corresponding law;
"effective service" means a period of service as a construction worker
credited under this Act;
"the electrical and metal trades industry" means the industry of carrying out
electrical or metal trades work;
"electrical or metal trades work" means on site work that involves—
(a)
electrical or metal work associated with—
(i)
the construction or erection of a building or structure
that is to be fixed to the ground and wholly or partially constructed on site;
or
(ii)
the alteration or demolition of a building or structure;
or
(b) the
construction, erection, installation, extension, alteration or dismantling
of—
(i)
a transmission or distribution line, or plant, plant
facility or equipment used in connection with the supply of electricity; or
(ii)
an air-conditioning, ventilation or refrigeration system;
or
(iii)
data and communication cabling; or
(iv)
security alarm equipment; or
(c) the
construction, erection, installation, extension, alteration, servicing,
repairing, replacing of parts or dismantling of a lift or escalator; or
(d)
electrical or metal work associated with other engineering projects (whether
or not within the ambit of a preceding paragraph);
"employer" means a person by whom a construction worker is employed;
"the Fund" means the Construction Industry Fund referred to in Part 4;
"inspector" means a person appointed as an inspector under this Act;
"levy" includes any amount assessed by the Board under section 28;
"ordinary weekly pay"—see subsection (3);
"the prescribed period" means—
(a) in
reference to a person who has an effective service entitlement of less than
1 300 days—24 months;
(b) in
reference to a person who has an effective service entitlement of
1 300 days or more—36 months;
"the relevant date" means the date as at which a person's ordinary weekly pay
is to be determined;
"the repealed Act" means the Long Service Leave (Building Industry)
Act 1975 repealed by this Act;
"return period" means a return period under section 27(1);
"SAET" means the South Australian Employment Tribunal established under the
South Australian Employment Tribunal Act 2014 ;
"special rates or allowances" means—
(a)
remuneration categorised by an award or agreement as special rates or
allowances;
(b)
remuneration categorised by the regulations as special rates or allowances;
"structure" includes—
(a) a
tank or other structure for the storage or supply of water;
(b)
sewerage or effluent drains and associated structures;
(c) a
bridge, viaduct, aqueduct or tunnel;
(d) a
chimney stack or cooling tower;
(e) a
silo;
(f) a
dock, jetty, pier or wharf.
(2) For the purposes
of this Act, a person will be taken to have worked for a day if (and only if)
the person spends five or more consecutive hours engaged in employment to
which this Act applies (and then each such period of five or more consecutive
hours will be taken to be a "day" under this Act).
(3) Subject to this
Act, a person's ordinary weekly pay will be—
(a) if
at the relevant date the person is being paid under an award for work in the
construction industry—the weekly base rate of pay for ordinary hours
prescribed by the award for work of the kind performed by the person as a
construction worker at the relevant date;
(b) in
any other case—an amount determined by averaging the person's weekly
earnings as a construction worker over the period of 52 weeks immediately
preceding the relevant date,
subject to the following qualifications:
(c) a
week in which the person did not act as a construction worker must be
disregarded for the purposes of paragraph (b); and
(d) the
regulations may—
(i)
declare payments made to or for the benefit of a
construction worker that must be included for the purposes of any
determination or calculation under this subsection; and
(ii)
declare payments made to or for the benefit of a
construction worker that must be excluded for the purposes of any
determination or calculation under this subsection; and
(e) if
the person has not been a construction worker at all during the period of
52 weeks immediately preceding the relevant date, the person's
ordinary weekly pay will be taken to be an amount that represents the average
ordinary weekly pay that was applicable under this Act for all persons engaged
in the kind of work last performed by the person as a construction worker who
took leave or received an entitlement in the financial year immediately
preceding the relevant date.
(4) Unless otherwise
specified, ordinary weekly pay will be determined as at the end of the last
completed return period under this Act.