Construction Industry (Long Service) Act 1997
An Act to repeal the Long Service Leave (Construction Industry) Act 1971 , vest funds of the Fund established under that Act in the company that administers that Fund and provide for matters relating to the scheme administered by that company
[Royal Assent 14 January 1998]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Construction Industry (Long Service) Act 1997 .
This Act commences on a day to be proclaimed.
In this Act –commencement day means the day on which this Act commences;company means the company declared under section 4 ;construction industry means any industry involved in any construction described in Division C or Division E of the Standard Industrial Classification;corresponding body means a body in another State or a Territory of the Commonwealth that administers a scheme corresponding to the new scheme;corresponding law means a law of another State or a Territory of the Commonwealth that –(a) provides for matters relating to long service leave in the construction industry; and(b) is declared to be a corresponding law by the Minister by notice published in the Gazette;employer includes a person who is self-employed;new scheme is the scheme relating to any part or all of the construction industry in respect of long service that replaces the previous scheme;previous fund means the Long Service Leave (Construction Industry) Fund established under the repealed Act;previous scheme means the scheme established under the repealed Act;repealed Act means the Long Service Leave (Construction Industry) Act 1971 ;Standard Industrial Classification means the Australian and New Zealand Standard Industrial Classification issued by the Australian Bureau of Statistics in 1993 (ABS Catalogue No. 1292.0).
The Minister, by notice published in the Gazette, may declare a company to be the company that is to administer the new scheme.
PART 2 - Registration
(1) An employer engaged in any construction industry covered by the new scheme must apply to the company for registration of each person engaged by the employer in that industry.Penalty: Fine not exceeding 100 penalty units.(2) The company is to register a person if, in its opinion, the person is eligible for registration.
(1) An employer of a person who is registered with the company and who is engaged in the construction industry covered by the new scheme must –(a) register with the company; and(b) make any payment the company determines is necessary to fulfil its obligations under the new scheme, unless the company imposes a levy under section 7 .Penalty: Fine not exceeding 100 penalty units.(2) An employer is not obliged to make a payment for a period under subsection (1)(b) in respect of a person who, under any Act, award or agreement, receives any benefit or entitlement relating to long service for that period.(3) The company is to refund any payment made by an employer who is not obliged to make that payment under subsection (2) .
(1) The company may impose a levy to fulfil its obligations under the new scheme.(2) A levy may be imposed only –(a) in substitution for any payment determined for the purpose of section 6(1)(b) ; and(b) on a person who is liable to pay a levy under section 25 of the Building and Construction Industry Training Fund Act 1990 .(3) A person must pay any levy imposed on the person under this section.Penalty: Fine not exceeding 100 penalty units.
8. Records, returns and information
An employer or a person liable to pay a levy under section 7 is to –(a) supply the company with any records or information the company requires in relation to the new scheme; and(b) make any returns the company requires in relation to the new scheme.
The company may apply to the Supreme Court for an order to enforce a duty imposed under this Act.
10. Other long service leave provisions
(1) Any period during which a person is registered with the company is not counted towards any long service, long service payment or other long service benefit under any Act, award or agreement.(2) Subsection (1) does not apply to any period during which a person while registered is not engaged in the construction industry.
PART 3 - Savings and transitional provisions
(1) Any amount standing to the credit of the previous fund immediately before the commencement day is, on that day, transferred to and vests in the company.(2) Any liability or obligation required to be met out of the previous fund before the commencement day is, on or after that day, to be met by the company.(3) Any amount due to the previous fund before the commencement day is, on or after that day, recoverable as an amount due to the company.(4) Any liability, obligation or costs incurred in relation to replacing the previous scheme by the new scheme is to be met by the company.
12. Rights, entitlements, benefits and obligations
(1) Any right, entitlement or benefit acquired or accrued by a person under the repealed Act immediately before the commencement day is, on that day, a right, an entitlement or a benefit acquired or accrued by that person under the new scheme.(2) Any obligation or liability incurred by a person under the repealed Act immediately before the commencement day is, on that day, an obligation or a liability incurred by the person to the company.(3) In relation to any obligation or liability incurred by a person in respect of the termination of relevant employment under the repealed Act –(a) the termination of that relevant employment is taken to have occurred on the commencement day; and(b) the obligation or liability is incurred by the person to the company.
A person who, immediately before the commencement day, has a period of reckonable service for the purpose of the repealed Act is, on that day, taken to be registered with the company.
(1) Any asset vested in the previous fund immediately before the commencement day is, on that day, transferred to the company.(2) Any tax, duty, fee or other charge under any law of Tasmania is not payable in respect of the transfer under subsection (1) .
Any proceedings instituted under the repealed Act and not heard or determined before the commencement day may, on or after that day, be heard and determined under that Act.
(1) Any application made under the repealed Act and not determined immediately before the commencement day may, on or after that day, be determined under that Act.(2) If a determination made under subsection (1) requires a payment to or from the previous fund, that payment is payable to or from the company.
(1) Any appeal instituted under the repealed Act and not heard or determined before the commencement day may, on or after that day, be heard and determined under that Act.(2) If a determination made under subsection (1) requires a payment to or from the previous fund, that payment is payable to or from the company.
PART 4 - Miscellaneous
18. Scheme to provide equivalent benefits and entitlements
The new scheme must provide for benefits and entitlements that are no less favourable than those provided under the previous scheme and the repealed Act.
19. Rule against perpetuities inapplicable
The rule against perpetuities does not apply to any money standing to the credit of the company in respect of the new scheme.
20. Contracting out prohibited
Any provision of an agreement purporting to limit, exclude or modify the operations of this Act is void.
(1) The Minister, at the request of the company, may make a reciprocal arrangement relating to any long service matter in the construction industry as requested by the company with a Minister responsible for the administration of a corresponding law.(2) The company must pay to a corresponding body an amount equal to the amount that bears the same proportion to the amount paid to a person as the period of service in the construction industry in Tasmania bears to the total period of service in respect of which the payment was made if –(a) the person has been paid a long service leave payment by the corresponding body under a corresponding law; and(b) the payment is either wholly or partly in respect of a period of service in the construction industry in Tasmania; and(c) the Minister has entered into a reciprocal arrangement with the Minister responsible for administering that corresponding law.(3) A payment by the company under subsection (2) is subject to any terms and conditions specified in the reciprocal arrangement.
A person ceases to be registered with the company when the person has been absent from the construction industry covered by the new scheme for a continuous period of 4 years or more unless the company otherwise determines.
(1) The Governor may make regulations for the purposes of this Act.(2) The regulations may –(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.(3) Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(4) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(5) A provision referred to in subsection (4) may take effect on and from the commencement day or later.
The Long Service Leave (Construction Industry) Act 1971 is repealed and any statutory rules made under that Act are rescinded or revoked.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Workplace Standards; and(b) the Department responsible to the Minister for Workplace Standards in relation to the administration of this Act is the Workplace Standards Authority.
[Second reading presentation speech made in:
House of Assembly on 3 DECEMBER 1997
Legislative Council on 9 DECEMBER 1997]