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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Long Service Leave (Preservation of Entitlements)
Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--PRESERVATION OF SUPERIOR AND ACCRUED
ENTITLEMENTS 3
4. New Parts 6 and 7 inserted 3
PART 6--PRESERVATION OF SUPERIOR LONG
SERVICE LEAVE ENTITLEMENTS 3
82. Application of Part 3
83. Definition of award 3
84. Preservation 4
PART 7--PRESERVATION OF ACCRUED LONG
SERVICE LEAVE ENTITLEMENTS 4
85. Definitions for this Part 4
86. Protection of accrued entitlements 5
PART 3--DUTIES OF EMPLOYERS 6
5. New Parts 8 and 9 inserted 6
PART 8--DISCLOSURE REQUIREMENTS FOR
WORKPLACE AGREEMENTS 6
87. Disclosure of unfair long service leave entitlements 6
88. Civil penalty 7
PART 9--EMPLOYMENT TERMINATED OR
PREJUDICED 7
89. Definition 7
90. Employment not to be terminated or prejudiced for
exercising rights under this Act 8
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551396B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
Clause Page
91. Reversal of onus of proof in certain circumstances 8
92. Civil penalty 8
93. Reimbursement, reinstatement and compensation 9
PART 4--MISCELLANEOUS 11
6. Miscellaneous amendments 11
ENDNOTES 13
ii
551396B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
PARLIAMENT OF VICTORIA
A BILL
to amend the Long Service Leave Act 1992 and for other purposes.
Long Service Leave (Preservation of
Entitlements) Act 2006
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to amend the Long
Service Leave Act 1992 to--
(a) protect and maintain existing award long
5
service leave entitlements that are superior to
those in Part 5 of that Act;
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 2
(b) preserve accrued long service leave
entitlements under an award or agreement
that no longer applies due to termination,
variation, expiry or transmission of business;
(c) require employers to disclose to employees if
5
any proposed workplace agreement directly
or indirectly impacts on long service leave
entitlements under that Act;
(d) allow the Industrial Division of the
Magistrates' Court to make certain orders if
10
that Court finds that an employer has
dismissed or otherwise prejudiced an
employee in relation to long service leave.
2. Commencement
(1) This Act (except Parts 2 and 4) comes into
15
operation on 1 October 2006.
(2) Parts 2 and 4 are deemed to have come into
operation on 27 March 2006.
3. Principal Act
See: In this Act, the Long Service Leave Act 1992 is
20 Act No.
called the Principal Act.
83/1992.
Reprint No. 3
as at
16 February
2006.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Part 2--Preservation of Superior and Accrued Entitlements
s. 4
PART 2--PRESERVATION OF SUPERIOR AND ACCRUED
ENTITLEMENTS
4. New Parts 6 and 7 inserted
After Part 5 of the Principal Act insert--
'PART 6--PRESERVATION OF SUPERIOR
5
LONG SERVICE LEAVE ENTITLEMENTS
82. Application of Part
This Part applies despite anything to the
contrary in this Act.
83. Definition of award
10
In this Part--
"award"--
(a) has the same meaning as it had in
the Workplace Relations Act 1996
of the Commonwealth as in force
15
immediately before 27 March
2006; and
(b) includes a term of an award that
was a common rule in Victoria
under section 141, 142 or 493A of
20
the Workplace Relations Act 1996
of the Commonwealth as in force
immediately before 27 March
2006; and
(c) in relation to an employee and his
25
or her employer, means an
award--
(i) that was binding on the
employer immediately
before 27 March 2006 or
30
would have been binding had
the employer been an
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Part 2--Preservation of Superior and Accrued Entitlements
s. 4
employer in the relevant
industry at that time; and
(ii) to which the employee's
employment was subject
immediately before
5
27 March 2006 or would
have been subject had the
employee been employed by
the employer at that time.
84. Preservation
10
(1) If, immediately before 27 March 2006, an
award provided a long service leave
entitlement that was more beneficial to an
employee in any respect than the entitlement
provided in Part 5, the employee is entitled
15
under this Act to that superior entitlement
instead of his or her entitlement under Part 5.
(2) Sub-section (1) applies to an employee
whether or not he or she was employed
immediately before 27 March 2006.
20
PART 7--PRESERVATION OF ACCRUED
LONG SERVICE LEAVE ENTITLEMENTS
85. Definitions for this Part
In this Part--
"award" has the same meaning as it has in
25
Part 6;
"protected accrued long service leave
entitlement" in relation to an
employee means an entitlement to long
service leave--
30
(a) that accrued by operation of an
award that has subsequently been
varied, set aside, ceased to have
effect or was revoked under
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Act No.
Part 2--Preservation of Superior and Accrued Entitlements
s. 4
Part 10 of the Workplace
Relations Act 1996 of the
Commonwealth;
(b) that accrued by operation of an
award that is no longer applicable
5
to that employee under Division 5
of Part 11 of the Workplace
Relations Act 1996 of the
Commonwealth;
(c) that accrued by operation of an
10
employment agreement that has
subsequently been terminated
under--
(i) Division 9 of Part 8 of the
Workplace Relations Act
15
1996 of the Commonwealth;
(ii) section 170MH of the
Workplace Relations Act
1996 of the Commonwealth
as continued in operation by
20
clause 2(1)(k) of Schedule 7
to that Act;
(d) that accrued by operation of an
agreement that is no longer
applicable to that employee under
25
Divisions 3 or 4 of Part 11 of the
Workplace Relations Act 1996 of
the Commonwealth.
86. Protection of accrued entitlements
An employee who is or was at any time
30
entitled to a protected accrued long service
leave entitlement is entitled to the benefit of
that entitlement under this Act regardless of
the status of the award or agreement under
which that entitlement accrued.'.
35
__________________
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Part 3--Duties of Employers
s. 5
PART 3--DUTIES OF EMPLOYERS
5. New Parts 8 and 9 inserted
After Part 7 of the Principal Act insert--
'PART 8--DISCLOSURE REQUIREMENTS FOR
WORKPLACE AGREEMENTS
5
87. Disclosure of unfair long service leave
entitlements
(1) At least 7 days before entering into an
employment agreement that would modify or
remove an employee's entitlements under
10
this Act, the employer must notify the
employee in writing of the modification or
removal (as the case may be).
(2) For the purposes of sub-section (1), the
notice must state whether the proposed
15
agreement modifies or removes any of the
following entitlements under the Act--
(a) an entitlement to long service leave on
completing 15 years of continuous
service;
20
(b) an entitlement to long service leave
where an employee has completed at
least 10 but less than 15 years of
continuous service;
(c) an additional entitlement to long
25
service leave if employment stops after
15 years;
(d) an entitlement to long service leave if
employment stops after 7 years but
before 10 years;
30
(e) any entitlement arising from the
operation of section 84 or 86.
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Part 3--Duties of Employers
s. 5
88. Civil penalty
(1) If an employer contravenes section 87, the
contravention is not an offence, however a
court may make an order imposing a penalty
of up to $10 000 on the employer.
5
(2) An application for an order under sub-
section (1) may be made--
(a) by the employee; or
(b) at the request of the employee, by an
organisation of which the employee is a
10
member, or eligible to be a member; or
(c) by the Minister.
(3) A court that imposes a penalty under sub-
section (1) may order that the penalty, or a
part of the penalty, be paid--
15
(a) to a particular person or organisation;
or
(b) into the Consolidated Fund.
(4) An order imposing a penalty under sub-
section (1) is taken, for the purposes of
20
enforcement, to be an order made by the
court in a civil proceeding.
(5) In this section, "court" means the Industrial
Division of the Magistrates' Court.
PART 9--EMPLOYMENT TERMINATED OR
25
PREJUDICED
89. Definition
In this Part, "court" means the Industrial
Division of the Magistrates' Court.
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Part 3--Duties of Employers
s. 5
90. Employment not to be terminated or
prejudiced for exercising rights under this
Act
An employer must not--
(a) terminate or threaten to terminate the
5
employment of an employee; or
(b) alter the position of an employee to the
employee's prejudice--
because the employee is entitled to or seeks
to exercise any entitlement or other right
10
under this Act.
91. Reversal of onus of proof in certain
circumstances
In proceedings for a contravention of
section 90, if the employee proves that he or
15
she--
(a) took long service leave; or
(b) applied for long service leave; or
(c) otherwise communicated to the
employer his or her intention to take
20
long service leave--
the onus of proving that the termination,
threat or prejudice was not actuated by the
reason alleged by the employee lies on the
employer.
25
92. Civil penalty
(1) If an employer contravenes section 90, the
contravention is not an offence, however the
court may make an order imposing a penalty
of up to $10 000 on the employer.
30
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Part 3--Duties of Employers
s. 5
(2) An application for an order under sub-
section (1) may be made--
(a) by the employee; or
(b) at the request of the employee, by an
organisation of which the employee is a
5
member, or eligible to be a member.
(3) The court may order that the penalty, or a
part of the penalty, be paid--
(a) to a particular person or organisation;
or
10
(b) into the Consolidated Fund.
(4) An order imposing a penalty under sub-
section (1) is taken, for the purposes of
enforcement, to be an order made by the
court in a civil proceeding.
15
93. Reimbursement, reinstatement and
compensation
(1) If an employer is found to have contravened
section 90, the court may--
(a) order the employer to pay the employee
20
a specified sum by way of
reimbursement for the remuneration
lost by the employee; and
(b) subject to sub-section (2), order that the
employee be reinstated in his or her
25
former position or a similar position.
(2) If the court considers that it would be
impracticable to reinstate the employee, the
court may order the employer to pay the
employee an amount of compensation not
30
exceeding the amount of remuneration of the
employee during the 12 months immediately
before the employee's employment was
terminated.
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Part 3--Duties of Employers
s. 5
(3) An order under sub-section (1)(a) or (2) must
be taken to be a judgment debt due by the
employer to the employee and may be
enforced in the court accordingly.
(4) The amount of remuneration that would have
5
been payable to an employee in respect of
any period that his or her employer fails to
give effect to an order under sub-section
(1)(b) is recoverable as a debt due to the
employee by the employer in any court of
10
competent jurisdiction.'.
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Part 4--Miscellaneous
s. 6
PART 4--MISCELLANEOUS
6. Miscellaneous amendments
(1) In section 4 of the Principal Act, in the definition
of "employment agreement"--
(a) in paragraph (a), after "Commonwealth"
5
insert "as in force immediately before
27 March 2006";
(b) in paragraph (b), for "Commonwealth;"
substitute "Commonwealth; and";
(c) after paragraph (b) insert--
10
"(c) a workplace agreement within the
meaning of the Workplace Relations
Act 1996 of the Commonwealth;".
(2) In section 4 of the Principal Act insert the
following definition--
15
' "organisation" means--
(a) a trade union within the meaning of the
Workplace Relations Act 1996 of the
Commonwealth; or
(b) an association of employees the
20
principal purpose of which is to protect
and promote the interests of employees
in matters concerning their
employment;'.
(3) In section 79(3) of the Principal Act--
25
(a) in paragraph (a), after "Commonwealth"
insert "as in force immediately before
27 March 2006";
(b) in paragraph (b), for "Commonwealth."
substitute "Commonwealth; or";
30
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Act No.
Part 4--Miscellaneous
s. 6
(c) after paragraph (b) insert--
"(c) a workplace agreement within the
meaning of the Workplace Relations
Act 1996 of the Commonwealth.".
(4) In section 159(2) of the Principal Act--
5
(a) in paragraph (a), after "Commonwealth"
insert "as in force immediately before
27 March 2006";
(b) in paragraph (b), for "Commonwealth."
substitute "Commonwealth; or";
10
(c) after paragraph (b) insert--
"(c) a workplace agreement within the
meaning of the Workplace Relations
Act 1996 of the Commonwealth.".
(5) In section 160(8) of the Principal Act, in the
15
definition of "employment agreement"--
(a) in paragraph (a), after "Commonwealth"
insert "as in force immediately before
27 March 2006";
(b) in paragraph (b), for "Commonwealth;"
20
substitute "Commonwealth; or";
(c) after paragraph (b) insert--
"(c) a workplace agreement within the
meaning of the Workplace Relations
Act 1996 of the Commonwealth;".
25
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Long Service Leave (Preservation of Entitlements) Act 2006
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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551396B.I1-30/5/2006 BILL LA INTRODUCTION 30/5/2006
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