OWP is the registered person's ordinary weekly pay applicable under this Act (applying any presumption prescribed by the regulations)
M is any effective service entitlement preserved under this section, subject to the qualification that if the aggregate of the registered person's effective service entitlement preserved under this section and the registered person's effective service entitlement credited under subsection (6)(c)(i) does not equal or exceed 84 months, then M will be taken to be zero
C is the total of the registered person's entitlement credited under subsection (6)(c)(ii) (without interest).
(11) If an industry board rejects an application under this section, the board must give the applicant written notice of its decision (setting out a brief statement of the board's reasons for making its decision).
(12) If a registered person—
(a) ceases to be a self‑employed contractor in a designated sector or a director to whom this section applies; and
(b) does not have an entitlement under subsection (8) or (9); and
(c) has not received and will not be receiving a payment from the industry board under subsection (10); and
(d) has become (or has become again) a person to whose employment this Act applies within the preservation period after ceasing to be a self‑employed contractor or a director to whom this section applies (as the case requires),
the effective service entitlement accrued under this section together with the effective service entitlement (if any) preserved under subsection (4) or (5) will be credited to the person for the purposes of Part 4.
(13) If—
(a) a registered person has an effective service entitlement of less than 84 months; and
(b) the registered person has not previously had an effective service entitlement of 120 months or more; and
(c) the registered person ceases to make payments under this section for a continuous period equal to, or longer than, a period prescribed by the regulations, other than because of physical or mental disability; and
(d) the registered person has not become a person to whose employment this Act applies (see section 5) within the preservation period after the period prescribed under paragraph (c); and
(e) no other right to the preservation of the effective service entitlement exists under this Act,
the effective service entitlement is cancelled and the relevant industry board must pay to the person an amount equal to the amount paid by the person under this section together with interest credited under this section.
(14) In this section—
director to whom this section applies means a person referred to in subsection (1)(b);
registered person means a person registered by an industry board under subsection (2).
58—Salary sacrifice arrangements
(1) A registered employer may, by application in the approved form, apply to an industry board to be provided with all or part of an amount that would otherwise be payable to a designated worker employed by the employer on account of an entitlement to long service leave, or a payment in respect of long service leave, in connection with a salary sacrifice arrangement between the employer and the designated worker.
(2) The application must be made at least 1 month before the payment is proposed to be made.
(3) The industry board must consider the application and decide to—
(a) grant the application; or
(b) refuse to grant the application.
(4) If the industry board decides to grant the application, the board may provide the relevant amount to the employer (so that the payment to be made in respect of the entitlement under this Act is made by the employer rather than the board).
(5) If the industry board refuses to grant the application, the board must give the employer written notice of its decision in accordance with the regulations.
(6) The employer must provide the industry board with evidence that confirms that the amount has been paid to the designated worker (or for the benefit of the designated worker).
(7) If the employer does not pay all of the amount received under this section to the designated worker (or for the benefit of the designated worker) in accordance with the arrangement outlined in the application under subsection (1), the employer must pay the unpaid amount to the industry board.
(8) The evidence required under subsection (6) and the payment required under subsection (7) must be provided to the industry board within the period prescribed by the regulations.
(9) An employer must not fail to comply with subsection (8).
Maximum civil penalty: $5 000.
59—Reciprocal arrangements with other States and Territories
(1) The Minister, or an industry board acting with the approval of the Minister, may make a reciprocal arrangement with an authority of another State or a Territory that is responsible for, or involved in the implementation of, the administration of a corresponding law, being a reciprocal arrangement relating to—
(a) long service entitlements for designated workers moving from this State to that State or Territory or moving from that State or Territory to this State; or
(b) any incidental or related matters.
(2) An industry board—
(a) will be liable to make contributions to, and entitled to recover contributions from, interstate authorities in accordance with a reciprocal arrangement under this section; and
(b) will in all other respects be bound by its terms.
60—Exemptions for certain interstate employers
(1) An employer—
(a) who is domiciled outside the State and involved in a designated sector in the State; or
(b) who is domiciled in the State and involved in a designated sector outside the State,
may, in a manner and form determined by the relevant industry board, apply to the board to be exempted from the requirement to be registered and pay a levy under this Act in respect of any designated worker, or class of designated workers, employed by the employer.
(2) If the industry board is satisfied that any designated worker, or class of designated workers, affected by an application under this section is, in the performance of work, covered by an appropriate long service leave scheme established under a corresponding law, the board may grant the application.
(3) An industry board may, pending making a decision on an application under this section, exempt an employer from the requirement to be registered under this Act.
(4) The board may, at any time by written notice to the relevant employer, revoke an exemption under this section.
61—General exemptions
(1) Subject to this section, the Minister may, by notice in the Gazette—
(a) exempt a person or class of persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of this Act; or
(b) vary or revoke an exemption, or a condition of an exemption, under this section or impose a further condition.
(2) The Minister must consult with the industry board constituted in relation to the designated sector to which an exemption relates before making a notice under subsection (1).
(3) A person must not contravene a condition of an exemption.
62—Power to require information
(1) For the purposes of investigating any prescribed matter an industry board may, by written notice, require any person—
(a) to furnish to the board, within the time specified in the notice, such information as may be required by the board in a form determined by the board; or
(b) to produce to the board, within the time specified in the notice, such documents as may be required by the board; or
(c) to attend for the purpose of giving evidence before the board at a time and place specified in the notice.
(2) The industry board may—
(a) require that information furnished to it in writing be verified by statutory declaration; and
(b) require that a person attending before it give evidence and, if it thinks fit, give that evidence on oath or by affirmation.
(3) The industry board is authorised to administer an oath or to take an affirmation for the purposes of subsection (2).
(4) If a person—
(a) who has been served with a notice to furnish information to an industry board, or to produce any documents to an industry board, fails without reasonable excuse to comply with the notice; or
(b) who has been served with a notice to attend before an industry board fails without reasonable excuse to attend in compliance with the notice; or
(c) refuses to be sworn or to affirm, or to answer any relevant question when required to do so by an industry board,
the person is guilty of an offence.
Maximum criminal penalty: $10 000.
(5) A person is not obliged to answer a question under this section if the answer would tend to incriminate the person of an offence, or to produce a document if it or its contents would tend to incriminate the person of an offence.
(6) In this section—
prescribed matter means—
(a) any matter relevant to ascertaining whether a person is liable to make a payment to an industry board under this Act, and, if so, the extent of that liability; and
(b) any other matter prescribed by the regulations.
63—Authorised officers
(1) The Minister may appoint such authorised officers as the Minister thinks fit for the purposes of this Act.
(2) Each authorised officer appointed by the Minister must be furnished with an appropriate identity card.
(3) An authorised officer must produce the identity card for inspection by any person who questions their authority to exercise the powers of an authorised officer under this Act.
(4) The Minister may, by written notice served on an authorised officer, revoke the appointment of the authorised officer under this Act.
64—Powers of inspection
(1) For the purposes of this Act, an authorised officer may at any reasonable time—
(a) enter any premises which the authorised officer has reasonable cause to believe are premises of an employer in a designated sector or premises where a designated worker is employed or works; or
(b) require the production of any document—
(i) required to be kept by or under this Act; or
(ii) relating to the service of designated workers; or
(iii) relevant to long service leave under this Act; or
(c) examine and copy, or take extracts from, any document, or require an employer to provide a copy of any document; or
(d) seize and remove anything that may constitute evidence of an offence against this Act; or
(e) take photographs or recordings; or
(f) require any person to answer, to the best of the person's knowledge or belief, any question relevant to the administration, operation or enforcement of this Act.
(2) An authorised officer may, in the exercise of powers under this section—
(a) be accompanied by such assistants as may be necessary or desirable in the circumstances; and
(b) ask any questions through an interpreter.
(3) A person must not—
(a) hinder or obstruct an authorised officer in the exercise of a power conferred by this section; or
(b) refuse or fail to answer truthfully to the best of the person's knowledge or belief a question put to the person under this section; or
(c) without lawful excuse, fail to comply with a requirement made under this section.
Maximum criminal penalty: $10 000.
(4) A person is not required to answer a question under this section if the answer would tend to incriminate the person or make the person liable to a penalty.
65—Records
(1) An employer under this Act must keep, or cause to be kept, in the State sufficient records to enable the employer's liability in respect of the payment of levies or other contributions under this Act to be accurately assessed.
Maximum civil penalty: $5 000.
(2) A record required under subsection (1) must be kept for at least 7 years after the completion of the period to which it relates.
Maximum civil penalty: $5 000.
(3) Subsections (1) and (2) do not apply—
(a) to a record, or a record of a kind, exempt from the operation of this section by determination of an industry board; or
(b) to a record that an industry board has determined need no longer be kept.
(4) A person must not keep a record for the purposes of this Act that the person knows to be false or misleading in a material particular.
66—Recovery of amounts and crediting entitlements
(1) If an amount is payable or recoverable under this Act, including an amount of levy that should have been paid or an amount in respect of an employer who should have furnished one or more returns but failed to do so, the period of recovery of the amount is 7 years from which it was payable or able to be recovered.
(2) The period for retrospectively crediting an effective service entitlement is 7 years from the date on which the work to which the entitlement relates was carried out.
(3) This section applies despite any other Act or law.
67—False or misleading information
A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided under this Act.
Maximum criminal penalty: $10 000.
68—Confidentiality and provision of information
(1) A person must not divulge or communicate information acquired by reason of being, or having been, employed or engaged in, or in connection with, the administration of this Act, except—
(a) with the consent of the person to whom the information relates; or
(b) in connection with the administration, operation or enforcement of this or any other Act; or
(c) to a person concerned in the administration, operation or enforcement of a corresponding law; or
(d) for the purposes of legal proceedings; or
(e) as authorised by the regulations.
(2) A person employed or engaged in the administration of this Act is authorised to provide prescribed information or documents to another person or body in accordance with the regulations.
(3) The regulations may place restrictions on the disclosure of information or documents provided under subsection (1) or (2).
(4) Subsection (2) operates despite any other Act or law.
69—Service of documents
(1) A notice or other document required or authorised to be served or given to a person by an industry board may be served or given—
(a) personally; or
(b) by leaving the notice or document at the person's ordinary place of residence, or during normal office hours at the person's ordinary place of business; or
(c) by sending the notice or document by post to the person's ordinary place of residence or ordinary place of business; or
(d) by sending the notice or document to an email address known to be used by the person (in which case the notice or document will be taken to have been served or given at the time of transmission); or
(e) in such other manner as may be prescribed by the regulations for the purposes of this section.
(2) Without limiting subsection (1), a notice or document to be served on or given to a company within the meaning of the Corporations Act 2001 of the Commonwealth may be served or given in accordance with that Act.
(3) The provisions of this section are in addition to, and do not limit or exclude, the provision of any other law with respect to the service of notices.
70—No contracting out
(1) The provisions of this Act have effect despite any provision to the contrary in any contract.
(2) A provision in an agreement, whether in writing or not, under which the operation of this Act is, or is purported to be, excluded, modified or restricted, or that has the effect of excluding, modifying or restricting the operation of this Act, is void.
71—Adverse action against designated worker
(1) An employer must not dismiss or threaten to dismiss a designated worker from, or prejudice or threaten to prejudice a designated worker in, employment because the designated worker is entitled to—
(a) long service leave under section 37; or
(b) an amount under section 39.
(2) Without limiting section 72(4), a court by which an employer is convicted of an offence against this section may, on application by the person against whom the offence was committed—
(a) award compensation to the applicant for loss resulting from the commission of the offence; and
(b) if the applicant was dismissed from employment—order the employer to re‑employ the applicant on conditions determined by the court.
72—Offences
(1) Proceedings for an offence against this Act may only be commenced by—
(a) the Minister; or
(b) the Director of Public Prosecutions; or
(c) an industry board; or
(d) a person acting with the written authorisation of the Minister.
(2) A prosecution for an offence against this Act must be commenced within 3 years after the day on which the offence is alleged to have been committed or, with the authorisation of the Attorney‑General, at any later time within 6 years after the day on which the offence is alleged to have been committed.
(3) An apparently genuine document purporting to be signed by the Attorney‑General and to authorise the commencement of proceedings for an offence against this Act will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.
(4) If, in proceedings for an offence against this Act, the court finds that the defendant has contravened this Act, the court may, in addition to any penalty that it may impose—
(a) order the defendant to take specified action to make good the contravention in a manner, and within a period, specified by the court; or
(b) order the defendant to furnish or make available to an industry board, within a period specified by the court, such information or records as the board may reasonably require for the purposes of this Act.
(5) A person to whom an order is given under subsection (4) who fails to comply with the order within the time specified in the order, or such further time as the court, on application, allows, is guilty of an offence.
Maximum criminal penalty: $10 000.
73—Evidentiary provision
(1) In any proceedings under this Act, a certificate purporting to be under the seal of an industry board certifying that—
(a) the person named in the certificate was at the time or during the period specified in the certificate an employer; or
(b) the employer named in the certificate was liable to pay a contribution in respect of the period specified in the certificate; or
(c) an assessment of the remuneration paid by an employer during a particular period has been duly made; or
(d) the particulars of the assessment are as stated in the certificate; or
(e) notice of an assessment has been served on an employer; or
(f) the amount specified in the certificate was, on the day the certificate was issued, payable by the employer named in the certificate,
will, in the absence of evidence to the contrary, be proof of the matters stated in the certificate.
(2) In any proceedings against a person for failing to furnish a return under this Act, a certificate purporting to be under the seal of an industry board certifying that the return was not received before the expiration of the period within which it was required to be furnished will, in the absence of evidence to the contrary, be proof that the defendant failed duly to furnish the return.
(3) In any proceedings against a person for failing to furnish an industry board with information required by the board under this Act, a certificate purporting to be under the seal of the board certifying that—
(a) the defendant was required to furnish the board with the information of the nature specified in the certificate within the period specified in the certificate; and
(b) the defendant failed duly to furnish the information as and when required by the board,
will, in the absence of evidence to the contrary, be proof that the defendant failed duly to furnish the information.
74—Regulations
(1) The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.
(2) Without limiting the generality of subsection (1), those regulations may—
(a) prescribe exclusions from the operation of Schedule 2; and
(b) establish a scheme or schemes for preserving effective service entitlements where workers change their employment status in circumstances that are not contemplated by Part 4 and qualify under any conditions or criteria prescribed by the regulations; and
(c) make provision in connection with registrations under this Act; and
(d) require employers or former employers to notify an industry board of specified matters; and
(e) require records or other information to be kept and provide for the provision of any report, document or other information to any person or body that performs a function under this Act; and
(f) make provisions of a saving or transitional nature consequent on an area of work being brought within the ambit of this Act; and
(g) prescribe civil penalties, not exceeding $5 000, for a contravention of the regulations (and section 56 will apply to such a contravention as if a reference in that section to this Act included a reference to the regulations).
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the matters or circumstances to which they are expressed to apply; and
(c) provide for a matter to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister or an industry board.
(4) The Minister may prescribe fees for the purposes of this Act by fee notice under the Legislation (Fees) Act 2019.
75—Review of Act
(1) The Minister must cause a review of the operation of this Act to be conducted, and a report on the review to be prepared and submitted to the Minister, after this Act has been in operation for a period of 3 years.
(2) The Minister must cause a copy of a report submitted under subsection (1) to be laid before both Houses of Parliament within 3 months after receiving the report.