Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this Act unless
the context requires otherwise —
apprentice means a person who is an apprentice
under a training contract registered under the
Vocational Education and Training Act 1996 Part 7 Division 2;
award means an award in force under the Industrial
Relations Act 1979 ;
business includes any trade, process, profession,
or occupation, and any part thereof;
employee means, subject to
subsection (3) —
(a) any
person employed by an employer to do work for hire or reward including an
apprentice;
(b) any
person whose usual status is that of an employee;
(c) any
person employed as a canvasser whose services are remunerated wholly or partly
by commission or percentage reward; or
(d) any
person who is the lessee of any tools or other implements of production or of
any vehicle used in the delivery of goods or who is the owner, whether wholly
or partly, of any vehicle used in the transport of goods or passengers if the
person is in all other respects an employee;
employer includes —
(a)
persons, firms, companies and corporations; and
(b) the
Crown and any Minister of the Crown, or any public authority,
employing one or more employees;
industrial agreement means an industrial agreement
in force under the Industrial Relations Act 1979 ;
industrial inspector means an Industrial Inspector
as defined in the Industrial Relations Act 1979 ;
industrial magistrate’s court has the
meaning given by the Industrial Relations Act 1979 ;
ordinary pay means subject to subsection (2),
remuneration for an employee’s normal weekly number of hours of work
calculated on the ordinary time rate of pay applicable to him, as at the time
when any period of long service leave granted to him under this Act commences,
or is deemed to commence, and where the employee is provided with board and
lodging by his employer, includes the cash value of that board and lodging,
where such board and lodging is not provided and taken during the period of
leave, but does not include shift premiums, overtime, penalty rates,
allowances, or the like.
(2) For the purpose of
the interpretation of "ordinary pay” in
subsection (1) —
[(a) deleted]
(b)
where the employee is employed on piece or bonus work or any other system of
payment by results, the employee’s rate of pay during any period when
the employee is on long service leave is the average weekly rate earned by him
while in employment during the period of 12 months —
(i)
ending on the day immediately preceding that on which he
commences long service leave or would but for payment in lieu of long service
leave have commenced long service leave, if he is then in employment; or
(ii)
ending on the day immediately preceding that on which he
was last in employment, if he is not then in employment; or
(iii)
ending on the day immediately preceding that of his
death,
as the case requires;
and
(c)
where the normal weekly number of hours have varied over the period of
employment of a full-time, part-time or casual employee the normal weekly
number of hours of work shall be deemed to be the average weekly number of
hours worked by the employee during that period of employment (calculated by
reference to such hours as are ascertainable if the hours actually worked over
that period are not known); and
(d) the
cash value of any board and lodging provided for an employee shall be deemed
to be its cash value as fixed by or under the conditions of the
employee’s employment, or, if it is not so fixed, shall be computed at
the prescribed rate; and
(e)
where by agreement between the employer and the employee the commencement of
the leave to which the employee is entitled or any portion thereof is
postponed to meet the convenience of the employee, the rate of payment for
such leave shall be at the ordinary time rate of pay applicable to him at the
date of accrual or, if so agreed, at the ordinary time rate of pay applicable
at the date he commences such leave.
(3) Where a person is,
by virtue of —
(a) an
award or industrial agreement;
(b) an
employer-employee agreement under Part VID of the
Industrial Relations Act 1979 or other agreement between the person and
his employer; or
(c) an
enactment of the State, the Commonwealth or of another State or Territory,
entitled to, or
eligible to become entitled to, long service leave at least equivalent to the
entitlement to long service leave under this Act, that person is not within
the definition of “employee” in subsection (1).
[Section 4 amended by No. 37 of 1964
s. 2; No. 113 of 1965 s. 8; No. 97 of 1973 s. 3;
No. 44 of 1991 s. 11; No. 79 of 1995 s. 46; No. 20 of
2002 s. 20; No. 36 of 2006 s. 55; No. 44 of 2008
s. 54; amended in Gazette 15 Aug 2003 p. 3687.]