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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Building and Construction Industry
ong Service Payments Amendment
Bill 2009
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeal of Building and Construction Industry Long Service
Payments Amendment Act 1998 No 33 2
Schedule 1 Amendment of Building and Construction Industry Long
Service Payments Act 1986 No 19 3
b2008-144-42.d17
New South Wales
Building and Construction Industry
ong Service Payments Amendment
Bill 2009
No , 2009
A Bill for
An Act to amend the Building and Construction Industry Long Service Payments Act
1986 to make further provision for long service payments to workers engaged in the
building and construction industry; and for other purposes.
Building and Construction Industry Long Service Payments Amendment
Clause 1 Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Building and Construction Industry Long Service 3
Payments Amendment Act 2009. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Repeal of Building and Construction Industry Long Service Payments 7
Amendment Act 1998 No 33 8
The Building and Construction Industry Long Service Payments 9
Amendment Act 1998 is repealed. 10
Page 2
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Amendment of Building and Construction Industry Long Service Payments Schedule 1
Act 1986 No 19
Schedule 1 Amendment of Building and 1
Construction Industry Long Service 2
Payments Act 1986 No 19 3
[1] Section 3 Definitions 4
Omit the definition of Commonwealth industrial instrument from 5
section 3 (1). 6
Insert instead: 7
Commonwealth industrial instrument means an award, 8
workplace agreement or other agreement made under (or taken to 9
have been made, or to have effect, under) an Act of the 10
Commonwealth, being an award, workplace agreement or other 11
agreement prescribed (or of a class prescribed) by the regulations 12
for the purposes of this definition. 13
[2] Section 8 Constitution of Committee 14
Omit "Employers First" from section 8 (2) (c). 15
Insert instead "the Australian Federation of Employers and Industries". 16
[3] Section 15 Corporation to keep register of workers 17
Omit "whose registration is approved" from section 15 (1) (a). 18
Insert instead "who are registered". 19
[4] Section 16 Applications for registration 20
Omit section 16 (2). 21
[5] Sections 16A and 17 22
Omit section 17. Insert instead: 23
16A Employer to notify Corporation of employment of workers 24
An employer who employs a worker under a contract of 25
employment must notify the Corporation of that employment 26
within 7 days after the worker commences to perform building 27
and construction work in New South Wales under that contract. 28
Maximum penalty: 20 penalty units. 29
17 Registration 30
(1) The Corporation is to register every person who the Corporation 31
is satisfied is a worker. 32
Page 3
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Schedule 1 Amendment of Building and Construction Industry Long Service Payments
Act 1986 No 19
(2) The Corporation may register a person as a worker in response to 1
an application by the person for registration or on its own 2
initiative. 3
[6] Section 18 4
Omit the section. Insert instead: 5
18 Date of registration 6
(1) The date on which a person becomes a registered worker is: 7
(a) if the person applied to be registered as a worker--the date 8
on which application for the person's registration was 9
lodged with the Corporation, or 10
(b) if the Corporation registered the person on its own 11
initiative--the date of that registration. 12
(2) Despite subsection (1), the Corporation may, on its own initiative 13
or at the request of a person who is registered as a worker, fix, in 14
respect of any person or class of persons, a date of registration 15
that is earlier than the date referred to in that subsection. 16
(3) However, if a person who is registered as a worker has requested 17
an earlier date in accordance with subsection (2), the Corporation 18
must not fix a date that is earlier than 2 years before the request 19
was made, unless the Corporation is satisfied that special 20
circumstances warrant its doing so. 21
(4) On the fixing of a date in accordance with subsection (2): 22
(a) the person or class of persons for whom the date is fixed 23
are taken for all purposes to have been registered on and 24
from that date, and 25
(b) service credits to which the person or those persons are 26
entitled under this Act may be credited to the person or 27
those persons in respect of any subsequent dates. 28
[7] Section 19 Cancellation or suspension of registration 29
Omit the following from section 19 (2A): 30
worker, 31
and on such cancellation the name of the worker may be removed 32
from the register of workers. 33
Insert instead "worker.". 34
Page 4
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Amendment of Building and Construction Industry Long Service Payments Schedule 1
Act 1986 No 19
[8] Section 19 (3)-(5) 1
Omit the subsections. Insert instead: 2
(3) The cancellation of the registration of a registered worker under 3
subsection (1A) or (2) takes effect: 4
(a) on the expiration of the period of 42 days after the 5
Corporation notifies the registered worker of the 6
cancellation, or 7
(b) if an appeal under Part 6 is lodged against the cancellation 8
within that period--on the date the appeal is withdrawn or 9
the cancellation is confirmed. 10
(4) On the cancellation of the registration of a worker taking effect: 11
(a) the person ceases to be a registered worker, and 12
(b) the person or the personal representative of the person is 13
not entitled to apply for or be paid any long service 14
payment in respect of any days' service then credited to the 15
person in the register of workers. 16
(5) A person whose registration has been cancelled in accordance 17
with this section may (if eligible) subsequently be registered as a 18
worker. 19
[9] Section 19 (8) and (9) 20
Insert after section 19 (7): 21
(8) While the registration of a worker is suspended: 22
(a) the worker is not to be credited in the register of workers 23
with any service under this Act (being service during the 24
period of suspension), and 25
(b) the Corporation is not required to serve any notice under 26
section 25 (1) on the worker, and 27
(c) subject to section 30: 28
(i) the worker is entitled to apply for and be paid any 29
long service payment in respect of any days' service 30
then credited to the worker in the register of 31
workers, and 32
(ii) if the worker has died (whether before or after the 33
worker's registration was suspended)--the personal 34
representative of the worker is entitled to apply for 35
and be paid any long service payment in respect of 36
any days' service then credited to the worker in the 37
register of workers, but only if the application is 38
Page 5
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Schedule 1 Amendment of Building and Construction Industry Long Service Payments
Act 1986 No 19
made within 2 years after the date of suspension or 1
the date of the worker's death (whichever is the 2
later). 3
(9) If a suspended registration is restored under subsection (6) (a), 4
any days' service under this Act that are credited to the worker as 5
at the date of the suspension are to be restored. 6
[10] Section 20 Contract of employment workers--certificates of service to 7
be supplied by employers 8
Omit "and the worker" from section 20 (1) (a)-(c), wherever occurring. 9
[11] Section 22 Service credits for building and construction work 10
Insert after section 22 (3): 11
(3A) For the purposes of subsection (3), when calculating the number 12
of days' service equivalent to the number of full days of 13
employment in building and construction work, the Corporation 14
is to: 15
(a) count any day on which the registered worker performed 16
building and construction work for more than half the 17
worker's ordinary work day as a full day of employment in 18
building and construction work, and 19
(b) disregard any day on which the registered worker 20
performed work (other than building and construction 21
work) for more than half the worker's ordinary work day. 22
[12] Section 24 Limitations on and adjustments of service credits 23
Omit "A registered worker shall not be credited in the register of workers with 24
more than 220 days' service in the building and construction industry in 25
respect of any financial year." from section 24 (1). 26
[13] Section 24 (2) 27
Omit "year ending 30 June". Insert instead "financial year". 28
[14] Section 25 Notice to registered workers of service credits 29
Insert after section 25 (6): 30
(7) Despite subsection (1), the Corporation is not required to serve a 31
notice on a person: 32
(a) whose registration has been cancelled (whether before or 33
after the 30 June to which the notice relates), or 34
(b) whose registration, in the opinion of the Corporation, is 35
likely to be cancelled before the following 30 June. 36
Page 6
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Amendment of Building and Construction Industry Long Service Payments Schedule 1
Act 1986 No 19
(8) However, if the Corporation has, by reason of subsection (7) (b), 1
not served a notice on a person and by that following 30 June the 2
person's registration has not been cancelled, the Corporation 3
must, as soon as possible, ensure that the relevant notice is served 4
on the person. 5
[15] Section 29 Amount of long service payment 6
Insert after section 29 (4): 7
(5) A reference in subsection (3) in the matter relating to P to the 8
hours in which ordinary pay is payable is a reference to a 9
maximum of 38 hours per week or such other period as is 10
prescribed by the regulations. 11
[16] Section 32 Payments to employers 12
Insert after section 32 (2): 13
(2A) A reference in subsection (1) in the matter relating to P to the 14
hours in which ordinary pay is payable is a reference to a 15
maximum of 38 hours per week or such other period as is 16
prescribed by the regulations. 17
[17] Section 32 (3A) 18
Insert after section 32 (3): 19
(3A) Despite subsection (3), for the purposes of the formula in 20
subsection (1), S is not to include the number of any days' service 21
with which the worker was credited in the register of workers that 22
was notified to the Corporation in a certificate under section 20 23
that was furnished more than 2 years after the time required by 24
that section. This subsection does not have effect until 25
1 July 2011. 26
[18] Section 32 (4) 27
Omit the subsection. Insert instead: 28
(4) Despite section 19, an employer is entitled to be paid, in respect 29
of a registered worker whose registration has been cancelled 30
under section 19, any amount that the employer would have been 31
entitled to be paid under this section if that registration had not 32
been so cancelled. 33
Page 7
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Schedule 1 Amendment of Building and Construction Industry Long Service Payments
Act 1986 No 19
[19] Section 32B 1
Insert after section 32A: 2
32B Deemed minimum and maximum rates of pay 3
(1) Despite sections 29 and 32, the regulations may make provision 4
for the determination of minimum and maximum amounts for P 5
for the purposes of the formulae in those sections. 6
(2) The Minister is to consult with the Committee before 7
recommending the making of a regulation under this section. 8
(3) The Committee is to advise and make recommendations to the 9
Minister on the operation of, and any amendment to or repeal of, 10
any regulation made under this section. 11
(4) If an amount of a long service payment to a worker under 12
section 29 or a payment to an employer under section 32 is, 13
because of the operation of a regulation made under this section, 14
less than the amount it would have been in the absence of the 15
regulation, the Corporation is to notify the worker or employer in 16
writing of that fact and give an explanation of the operation of the 17
regulation. 18
[20] Section 38A 19
Insert after section 38: 20
38A Crown contractors to give evidence of levy payment to Crown 21
(1) If a person or body representing the Crown (a Crown 22
instrumentality) has entered into a contract with a person who is 23
liable under section 38 to pay a long service levy in respect of the 24
erection of a building or part of the work of erecting a building, 25
it is the duty of the Crown instrumentality to withhold any 26
instruction to, or permission, approval or authorisation for, the 27
person to commence work under the contract, unless the person 28
has produced to the Crown instrumentality evidence that the long 29
service levy due in respect of the work concerned has been paid 30
by the person (such as a receipt from the Corporation). 31
(2) It is the duty of the Crown instrumentality to keep a copy of any 32
such evidence for at least 6 years after it was produced. 33
[21] Section 42 Refunds of long service levies 34
Omit "3 months" from section 42 (7). 35
Insert instead "12 months (or such other period as may be prescribed by the 36
regulations)". 37
Page 8
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Amendment of Building and Construction Industry Long Service Payments Schedule 1
Act 1986 No 19
[22] Section 42 (8) and (9) 1
Insert after section 42 (7): 2
(8) Despite any other provision of this section, the Corporation may 3
pay a refund to a person other than the person who paid the long 4
service levy if, in the Corporation's opinion, it is in the interests 5
of justice to do so. 6
(9) A payment of a refund under subsection (8) satisfies any liability 7
of the Corporation to pay a refund to the person who paid the long 8
service levy concerned. 9
[23] Section 49 Appeal against refusal or cancellation of registration 10
Omit section 49 (1) (a). Insert instead: 11
(a) to refuse an application for registration as a worker, or 12
[24] Section 49 (3) 13
Omit "approve the application by the person to become a registered worker". 14
Insert instead "register the person as a worker". 15
[25] Section 50A 16
Insert after section 50: 17
50A Appeal against limitation of long service payment by operation of 18
deemed minimum and maximum rates of pay 19
(1) A person who has received a notification under section 32B and 20
is dissatisfied with the calculation of the long service payment 21
may appeal to the Committee. 22
(2) The Committee, in determining the appeal, may confirm the 23
calculation of the long service payment or set it aside and make a 24
new calculation in substitution for that calculation. 25
[26] Section 54A 26
Insert after section 54: 27
54A Personal representative of deceased person may appeal on 28
person's behalf 29
(1) A reference in sections 49, 50 and 50A to a person includes, 30
where the person has died, the person's personal representative 31
acting on behalf of the person. 32
Page 9
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Schedule 1 Amendment of Building and Construction Industry Long Service Payments
Act 1986 No 19
(2) In this section, personal representative, in relation to a person 1
who has died, means: 2
(a) in the case of a person who died wholly or partially 3
intestate--any person who appears to the Committee to be 4
entitled to obtain a grant of letters of administration of the 5
estate of the person, and 6
(b) in the case of a person who died testate--any person who 7
appears to the Committee to be entitled to receive the 8
relevant payment under the will of the person. 9
[27] Schedule 1 Provisions relating to members and procedure of Committee 10
Omit "Employers First" from clause 7 (2) (b). 11
Insert instead "the Australian Federation of Employers and Industries". 12
[28] Schedule 3 Savings, transitional and other provisions 13
Insert at the end of clause 16 (1): 14
Building and Construction Industry Long Service Payments 15
Amendment Act 2009 16
[29] Schedule 3, Part 4 17
Insert after Part 3: 18
Part 4 Provisions consequent on enactment of 19
Building and Construction Industry Long 20
Service Payments Amendment Act 2009 21
29 Definition 22
In this Part, amending Act means the Building and Construction 23
Industry Long Service Payments Amendment Act 2009. 24
30 Definition of "Commonwealth industrial instrument": section 3 (1) 25
(1) The substitution of the definition of Commonwealth industrial 26
instrument in section 3 (1) of this Act made by the amending Act 27
is taken to have effect on and from 27 March 2006. 28
(2) A regulation made for the purposes of that definition may provide 29
that it is taken to have effect on and from a date earlier than the 30
date of the making of the regulation (but not earlier than 31
27 March 2006). 32
Page 10
Building and Construction Industry Long Service Payments Amendment
Bill 2009
Amendment of Building and Construction Industry Long Service Payments Schedule 1
Act 1986 No 19
31 Suspension of registration: section 19 (8) and (9) 1
(1) Section 19 (8), as inserted by the amending Act: 2
(a) extends to a suspension of a registration that took effect 3
before the commencement of that subsection that is still in 4
effect, and 5
(b) does not apply to a period of suspension that ended before 6
the commencement of that subsection. 7
(2) Section 19 (9), as inserted by the amending Act, does not apply 8
to a restoration of a suspended registration that took effect before 9
the commencement of that subsection. 10
32 Service credits for part-time work and working partially on 11
building and construction work and partially on other work: 12
section 22 (3A) 13
Section 22 (3A), as inserted by the amending Act, extends to the 14
performance of work before the commencement of that 15
subsection. 16
33 Deemed minimum and maximum rates of pay: sections 29 (5), 17
32 (2A) and 32B 18
Sections 29 (5), 32 (2A) and 32B, as inserted by the amending 19
Act, apply to calculations of payments after the commencement 20
of those provisions in relation to days' service credited to the 21
worker concerned before and after that commencement. 22
34 Refunds of long service levies in interests of justice: section 42 (8) 23
and (9) 24
Section 42 (8) and (9), as inserted by the amending Act, extend 25
to the refund, after the commencement of those subsections, of a 26
long service levy that was paid to the Corporation before that 27
commencement. 28
Page 11
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