South Australian Consolidated Acts South Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears—
"agreement" means—
(a) an
enterprise agreement; or
(b) a
certified agreement, enterprise flexibility agreement or Australian workplace
agreement within the meaning of the Workplace Relations Act 1996 of the
Commonwealth, as in force from time to time;
"award" includes—
(a) an
award or order of the Industrial Relations Commission;
(b) an
award or order of the Australian Industrial Relations Commission;
"corresponding law" means a law—
(a) of
the Commonwealth; or
(b) of a
State (other than this State) or a Territory of the Commonwealth; or
(c) of
another country,
that confers long service leave entitlements;
"employer" means a person by whom a worker is employed;
"enterprise agreement" means an enterprise agreement within the meaning of the
Industrial and Employee Relations Act 1994 ;
"individual agreement", in relation to an employer and a worker, means an
agreement (other than an enterprise agreement) individually negotiated between
the employer and the worker;
"the Industrial Relations Commission" means the Industrial
Relations Commission of South Australia;
"the Industrial Relations Court" means the Industrial Relations Court of South
Australia;
"inspector" means an inspector under the Industrial and Employee Relations
Act 1994 ;
"long service leave entitlement" means an entitlement to long service leave or
payment in lieu of long service leave;
"registered association" means—
(a) an
association registered under the Industrial and Employee Relations
Act 1994 ;
(b) an
organisation registered under the Workplace Relations Act 1996 of the
Commonwealth, as in force from time to time;
"related corporations" means corporations—
(a) that
are related to each other for the purposes of the Corporations Law ; or
(b) that
have substantially the same directors or are under substantially the same
management;
"the relevant date" means the day on which long service leave is commenced or
an entitlement to payment in lieu of long service leave arises;
"service" means continuous service with the same employer or with related
employers under a contract of service or a series of contracts of service;
"worker" means a person employed under a contract of service.
(2) A reference in
this Act to a worker's ordinary weekly rate of pay is a reference to the
worker's weekly rate of pay as at the relevant date exclusive of overtime,
shift premiums and penalty rates but this definition is subject to the
following qualifications—
(a) if
the worker is employed on commission or on any other system of payment by
result, the worker's ordinary weekly rate of pay will be ascertained by
averaging the worker's weekly earnings over the 12 months immediately
preceding the relevant date; and
(b) if
during the whole or part of the period of three years immediately preceding
the relevant date—
(i)
the worker was employed on an hourly basis at an hourly
rate of pay; or
(ii)
the workers ordinary hours of work per week were varied
and consequently the worker's weekly rate of pay was varied; or
(iii)
the worker worked on a casual or part-time basis,
the worker's ordinary weekly rate of pay will be ascertained by averaging the
number of hours worked per week in that period of three years and multiplying
that result by the worker's rate of pay per hour as at the relevant date,
exclusive of overtime, shift premiums and penalty rates (and for the purposes
of this paragraph a person who is employed on a casual basis is not to be
regarded as being paid at a penalty rate); and
(c) if
the worker's employer provides accommodation during his or her employment but
not while the worker is on leave, the worker's ordinary weekly rate of pay
will be increased by an amount representing the weekly value of that
accommodation (that value being determined, where possible, by reference to an
award or agreement and, where there is no applicable award or agreement, by
reference to the fair and reasonable monetary value of that accommodation).
(3) Employers are
related for the purposes of this Act if—
(a) one
takes over or otherwise acquires the business or part of the business of the
other; or
(b) they
are related corporations; or
(c) a
series of relationships can be traced between them under paragraph (a) or
(b).
(4) For the purpose of
averaging weekly earnings under subsection (2)(a) or the number of hours
worked per week under subsection (2)(b)—
(a) any
week when the relevant worker was on unpaid leave for the whole of the week
will be disregarded; and
(b) the
relevant periods under subsection (2)(a) and (2)(b) will be taken to be
periods (which need not be consecutive) totalling 12 months (in the case
of subsection (2)(a)) or 3 years (in the case of
subsection (2)(b)) after disregarding any weeks when the worker was not
at work due to unpaid leave; and
(c) any
period when the relevant worker was on paid leave will be taken into account.