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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Long Service Leave (Amendment) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. New section 56A inserted 3
56A. Entitlement to long service leave after 10 years 3
6. Entitlement to long service leave if employment stops after
7 years 3
7. Definition of "employee" 4
8. Meaning of "continuous employment" 4
9. New section 62A inserted 4
62A. Meaning of "continuous employment" for casual and
seasonal employees 4
10. Whether interruptions are to be included in the period of
employment 5
11. Meaning of "ordinary pay" 6
12. New section 66 substituted 8
66. When leave is to be taken 8
13. Increased penalties 9
14. New section 70 substituted 9
70. Long service leave to be exclusive of annual leave and
public holidays 9
15. New section 71A inserted 9
71A. Leave at half pay 9
16. Further increased penalties 10
17. Settlement of disputes concerning leave 10
18. Further increased penalty 10
19. Contracting out prohibited 10
20. Further increased penalties 11
21. Who can prosecute under this Act? 11
22. New section 158A inserted 11
158A. Conduct corporations imputed to directors 11
23. Reverse onus of proof in certain cases 12
24. Recovery of money owed 12
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Clause Page
25. Court may order payment of arrears on conviction 13
26. Regulations 13
ENDNOTES 14
ii
551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Long Service Leave Act 1992 to make the law relating
to long service leave more consistent with modern working practices
and for other purposes.
Long Service Leave (Amendment) Act
2005
The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are to amend the
Long Service Leave Act 1992--
(a) to make the law relating to long service leave
more consistent with modern working
5
practices and with similar laws in other
Australian jurisdictions; and
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551293B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005
Long Service Leave (Amendment) Act 2005
s. 2
Act No.
(b) to ensure that employees who take leave for
family reasons are not disadvantaged.
2. Commencement
This Act comes into operation on 1 January 2006.
3. Principal Act
5
See: In this Act, the Long Service Leave Act 1992 is
Act No.
called the Principal Act.
83/1992.
Reprint No. 2
as at
6 March 1997
and
amending
Act No.
44/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
4. Definitions
In section 4 of the Principal Act--
(a) in the definition of "Chief Administrator",
10
for "Business and Employment" substitute
"Innovation, Industry and Regional
Development";
(b) for the definition of "employment
agreement" substitute--
15
' "employment agreement" means the
agreement (whether written or oral)
under which an employee is employed,
and includes--
(a) a certified agreement or an
20
Australian Workplace Agreement
made under the Workplace
Relations Act 1996 of the
Commonwealth; and
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Long Service Leave (Amendment) Act 2005
s. 5
Act No.
(b) any terms and conditions of
employment to which an
employee is entitled under an
award made under the Workplace
Relations Act 1996 of the
5
Commonwealth;'.
5. New section 56A inserted
After section 56 of the Principal Act insert--
"56A. Entitlement to long service leave after
10 years
10
(1) If an employee has completed at least 10, but
less than 15, years of continuous
employment with one employer, the
employee is entitled to an amount of long
service leave equal to 1/60th of the period of
15
continuous employment with that employer.
(2) For the purposes of working out when an
employee becomes entitled to long service
leave under this section, only 2/3rds of the
employee's continuous employment
20
completed before the commencement of this
section counts as continuous employment.".
6. Entitlement to long service leave if employment
stops after 7 years
(1) Insert the following heading to section 58 of the
25
Principal Act--
"Entitlement to long service leave if
employment stops after 7 years".
(2) For section 58(1) of the Principal Act
substitute--
30
"(1) This section only applies if an employee's
employment is ended and the employee has
completed at least 7, but less than 15, years
of continuous employment with one
employer.".
35
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s. 7
Act No.
7. Definition of "employee"
In section 59 of the Principal Act, for the
definition of "employee" substitute--
' "employee" means a person employed by an
employer to do any work for hire or reward,
5
and includes--
(a) an apprentice and any person whose
contract of employment requires him or
her to learn or to be taught any
occupation; and
10
(b) a casual or seasonal employee;'.
8. Meaning of "continuous employment"
(1) For section 62(2)(c) of the Principal Act
substitute--
"(c) any other absence from work approved by
15
his or her employer (paid or unpaid),
including carer's leave but not including
adoption, maternity or paternity leave;
(ca) the taking of any period of adoption,
maternity or paternity leave (paid or unpaid),
20
not exceeding 12 months (or any longer
period specified in the relevant employment
agreement);".
(2) Section 62(2)(i) and (j) of the Principal Act are
repealed.
25
9. New section 62A inserted
After section 62 of the Principal Act insert--
'62A. Meaning of "continuous employment" for
casual and seasonal employees
(1) Without limiting section 62, the employment
30
of an employee who is employed by the
same employer more than once over a period
is to be regarded as continuous if--
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s. 10
Act No.
(a) there is no more than an absence of
3 months between each instance of
employment in the period; or
(b) there is more than an absence of
3 months between two particular
5
instances of employment, but the length
of the absence is due to the terms of the
engagement of the employee by the
employer.
(2) Without limiting section 62, the employment
10
of an employee who is employed by the
same employer more than once over a period
is to be regarded as continuous if the
absences between instances of employment
are due to the seasonal nature of the
15
employee's employment.
(3) Sub-sections (1) and (2) apply even if--
(a) any of the employment is not full-time;
or
(b) the employee is employed by the
20
employer under 2 or more employment
agreements; or
(c) the employee has engaged in other
employment during the period.'.
10. Whether interruptions are to be included in the
25
period of employment
(1) For section 63(3) of the Principal Act
substitute--
"(3) Any absence from work referred to in section
62(2)(c) is to be counted as part of the period
30
of an employee's employment unless--
(a) on it being approved, it was agreed in
writing between the employee and the
employer (at the request of the
employee) that it not be counted; or
35
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s. 11
Act No.
(b) it is unpaid adoption, maternity or
paternity leave.".
(2) In section 63(4) of the Principal Act, for "(g), (h),
(i) and (j)" substitute "(g) and (h)".
11. Meaning of "ordinary pay"
5
(1) For section 64(3) and (4) of the Principal Act
substitute--
"(3) If no ordinary time rate of pay is fixed for an
employee's work under the relevant
employment agreement, the employee's
10
ordinary time rate of pay is to be taken to be
the greater of the following--
(a) the average weekly rate earned by the
employee in the 12 months
immediately before he or she takes long
15
service leave;
(b) the average weekly rate earned by the
employee in the 5 years immediately
before he or she takes long service
leave.
20
(4) If--
(a) no normal weekly number of hours of
work is fixed for an employee's work
under the relevant employment
agreement; or
25
(b) the normal weekly number of hours is
fixed but is changed one or more times
during the 12 months immediately
before the employee takes long service
leave--
30
the employee's normal weekly number of
hours of work is to be taken to be the greater
of the following--
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Act No.
(c) the average weekly number of hours
worked by the employee in the
12 months immediately before he or
she takes long service leave;
(d) the average weekly number of hours
5
worked by the employee in the 5 years
immediately before he or she takes long
service leave.".
(2) After section 64(6) of the Principal Act insert--
"(7) If an employee is--
10
(a) working under a return to work plan
(within the meaning of the Accident
Compensation Act 1985); or
(b) absent from work because of a
workplace illness or injury and in
15
receipt of any benefits from the
Victorian WorkCover Authority for that
illness or injury--
his or her normal weekly hours and ordinary
time rate of pay are to be taken to be the
20
greater of the following--
(c) the employee's normal weekly hours
and ordinary time rate of pay
immediately before he or she takes long
service leave;
25
(d) the employee's normal weekly hours
and ordinary time rate of pay
immediately before he or she developed
the relevant illness or suffered the
relevant injury.".
30
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Long Service Leave (Amendment) Act 2005
s. 12
Act No.
12. New section 66 substituted
For section 66 of the Principal Act substitute--
"66. When leave is to be taken
(1) An employer and an employee who is
entitled to long service leave under this Act
5
may agree when the employee is to take the
leave.
(2) In the absence of an agreement under sub-
section (1), the employer may direct the
employee to take long service leave at a
10
particular time by giving the employee at
least 3 months' written notice.
(3) Subject to sub-section (4), an employee who
receives a notice from an employer under
sub-section (2) must take the leave as
15
directed by the employer.
(4) The employee may apply to the Industrial
Division of the Magistrates' Court for an
order concerning the taking of long service
leave--
20
(a) if the employee and the employer
cannot agree under sub-section (1); or
(b) if the employee receives a notice from
the employer under sub-section (2).
(5) In determining an application under sub-
25
section (4), the Court may take into account
all of the relevant circumstances, including
the needs of the employee and the needs of
the employer's business.".
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Long Service Leave (Amendment) Act 2005
s. 13
Act No.
13. Increased penalties
For the penalty at the foot of each of sections
68(2) and 69(2) of the Principal Act substitute--
"Penalty: 20 penalty units.".
14. New section 70 substituted
5
For section 70 of the Principal Act substitute--
"70. Long service leave to be exclusive of
annual leave and public holidays
Long service leave does not include any
public holiday or annual leave occurring
10
during the period when the long service
leave is taken.".
15. New section 71A inserted
After section 71 of the Principal Act insert--
"71A. Leave at half pay
15
(1) An employee may request his or her
employer to grant the employee an amount
of long service leave--
(a) twice as long as the amount to which
the employee would otherwise be
20
entitled; and
(b) at a rate of pay equal to half the
employee's ordinary pay.
(2) An employer must grant a request made
under sub-section (1) if it is reasonable to do
25
so having regard to the needs of the
employee and the needs of the employer's
business.".
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Act No.
16. Further increased penalties
For the penalty at the foot of each of sections
72(2), 73(1) and 74(2) of the Principal Act
substitute--
"Penalty: 20 penalty units.".
5
17. Settlement of disputes concerning leave
In section 75(1) of the Principal Act--
(a) at the end of paragraph (b) insert "; or";
(b) after paragraph (b) insert--
"(c) a refusal by an employer to grant a
10
request made by an employee under
section 71A(1).".
18. Further increased penalty
For the penalty at the foot of section 78(2) of the
Principal Act substitute--
15
"Penalty: 5 penalty units.".
19. Contracting out prohibited
After section 79(2) of the Principal Act insert--
'(3) In this section, "employment agreement"
does not include--
20
(a) a certified agreement or an Australian
Workplace Agreement made under the
Workplace Relations Act 1996 of the
Commonwealth; or
(b) any terms and conditions of
25
employment to which an employee is
entitled under an award made under the
Workplace Relations Act 1996 of the
Commonwealth.'.
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s. 20
Act No.
20. Further increased penalties
For the penalty at the foot of each of sections
80(1), 80(2) and 80(3) of the Principal Act
substitute--
"Penalty: 20 penalty units.".
5
21. Who can prosecute under this Act?
In section 154(1)(c) of the Principal Act for
"Business and Employment" substitute
"Innovation, Industry and Regional
Development".
10
22. New section 158A inserted
After section 158 of the Principal Act insert--
'158A. Conduct corporations imputed to
directors
(1) For the purposes of this Act, any conduct
15
engaged in by a corporation (as a result of
the application of section 158 or otherwise)
is also conduct engaged in by an executive
officer of the corporation if the executive
officer knew about the conduct or was
20
reckless as to whether it was engaged in.
(2) In this section--
"executive officer" of a corporation
means--
(a) a director of the corporation; or
25
(b) any other person who is
concerned, or takes part, in the
management of the corporation
(regardless of the person's
designation).'.
30
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Long Service Leave (Amendment) Act 2005
s. 23
Act No.
23. Reverse onus of proof in certain cases
At the end of section 159 of the Principal Act
insert--
'(2) In this section, "employment agreement"
does not include--
5
(a) a certified agreement or an Australian
Workplace Agreement made under the
Workplace Relations Act 1996 of the
Commonwealth; or
(b) any terms and conditions of
10
employment to which an employee is
entitled under an award made under the
Workplace Relations Act 1996 of the
Commonwealth.'.
24. Recovery of money owed
15
(1) For section 160(2) of the Principal Act
substitute--
"(2) A registered organisation may, if requested
to do so by an employee who is, or is eligible
to become, a member of the organisation,
20
take proceedings in the Industrial Division of
the Magistrates' Court to recover money
owed to the employee for long service leave.
(3) Proceedings under this section must be
started within 6 years after the employee's
25
entitlement to the money arises.".
(2) After section 160(7) of the Principal Act insert--
'(8) In this section--
"employee" includes a former employee;
"employer" includes a former employer;
30
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s. 25
Act No.
"employment agreement" does not
include--
(a) a certified agreement or an
Australian Workplace Agreement
made under the Workplace
5
Relations Act 1996 of the
Commonwealth; or
(b) any terms and conditions of
employment to which an
employee is entitled under an
10
award made under the Workplace
Relations Act 1996 of the
Commonwealth;
"registered organisation" means an
organisation within the meaning of the
15
Workplace Relations Act 1996 of the
Commonwealth.'.
25. Court may order payment of arrears on conviction
(1) Section 161(2) of the Principal Act is repealed.
(2) After section 161(5) insert--
20
'(6) In this section--
"employee" includes a former employee;
"employer" includes a former employer.'.
26. Regulations
In section 169 of the Principal Act--
25
(a) in sub-section (3), for "section 6(2) of the
Subordinate Legislation Act 1962"
substitute "section 23 of the Subordinate
Legislation Act 1994";
(b) sub-section (4) is repealed.
30
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Long Service Leave (Amendment) Act 2005
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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