CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 5
CONSTRUCTION INDUSTRY LONG SERVICE LEAVE ACT 1987 - SECT 5
(1aa) Subject to this
section and Schedule 5, this Act applies to a person's employment if the
person is within the ambit of subsections (1), (1a) or (1b).
(1) A person is within
the ambit of this subsection if—
(a) the
person works under a contract of service in the construction industry; and
(b)
—
(i)
an award referred to in Schedule 1 or the regulations
prescribes a weekly rate of pay for work of that kind; or
(ii)
the person works on site as a foreman and within 12
months before commencing work as a foreman the person worked in some other
capacity as a construction worker under an award referred to in Schedule 1 or
the regulations; and
(i)
the employment involves on site work that makes up the
whole, or a proportion of at least one-half, of the period of employment
over—
(A) in the case of a person employed for
less than 1 month—the whole period of employment; or
(B) in the case of a person employed for
1 month or more but less than 3 months—the first month of
employment; or
(C) in the case of a person employed for
3 months or more—any 3 month period of employment; or
(ii)
in the case of a foreman, the on site employment involves
supervising other employees who work on the site,
but without affecting any accrued effective service entitlement, this
subsection ceases to apply to the employment if the employee has not worked on
site for the last three months or, in the case of a foreman, has not gone on
site in the performance of his or her functions as a foreman for the last
three months (disregarding any period during which the employee is absent from
work as a result of an allowable absence).
(1a) A person is
within the ambit of this subsection if—
(a) the
person works under a contract of service in the construction industry; and
(b) an
award referred to in Schedule 1A, or the regulations, prescribe a weekly rate
of pay for work of that kind (subject to any limitation as to classifications
referred to in that Schedule or the regulations); and
(c) the
person's employer has registered with the Board as an employer for the
purposes of this Act; and
(d) the
person's employer and the Board have agreed that the Act should apply to the
person.
(1b) A person is
within the ambit of this subsection if—
(a) the
person has been employed as a construction worker within the ambit of
subsections (1) or (1a); and
(b) the
person is seconded to a relevant association to act as an officer or employee
of the association after being granted leave without pay by an employer in the
construction industry; and
(c) the
relevant association is registered with the Board for the purposes of this
provision; and
(d) the
person is not (and does not become) a member of the governing body of the
relevant association,
but without affecting an accrued effective service entitlement, this
subsection ceases to apply to the person if the person attains an effective
service entitlement of 2 600 days.
(2) Where this Act
applies to employment by virtue of subsection (1)(c)(i)(C), it will be
taken to have commenced to apply from the commencement of the three-month
period referred to in that subsection.
(2a) Where this Act
applies to employment by virtue of subsection (1b), the
relevant association will be taken to be the employer of the person (as a
construction worker) for the purposes of this Act.
(2b) Despite
subsection (1aa), Parts 3 and 5 do not apply to a person's employment
(and consequently the person is not a construction worker for the purposes of
those Parts) if the person's employer is a body corporate and the person is a
director of that body corporate.
(3) Where—
(a) a
person carries out construction work on premises owned or occupied by his or
her employer (not being premises intended for subsequent sale or lease); and
(b) that
is the sole construction work in which the person is engaged by that employer,
this Act does not apply to that employment.
(3a)
Subsections (1) and (1a) do not apply in relation to a person
who—
(a) is
employed in the civil construction industry as defined in the Building and
Construction General On-site Award 2010 unless the person is employed in
building work that wholly or predominantly involves working on structures
within the meaning of this Act; or
(b)
falls within any class of employees excluded from the operation of that
subsection by the regulations.
(4) This Act does not
apply in relation to employment by—
(a) the
Crown;
(b) an
agency or instrumentality of the Crown;
(c) a
council;
(d) a
prescribed employer or an employer of a prescribed class.
(5) A regulation
cannot be made for the purposes of this section except after consultation
with, or on the recommendation of, the Board.
(6) 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 directors or
members of the governing body of the body corporate are accustomed to act;
"relevant association" means an association of employees that is able to
represent the industrial interests of persons employed in the
construction industry.