(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— approved means approved by the Corporation.authorised agent means an agent of the Corporation appointed under section 44.award means a State industrial instrument or a Commonwealth industrial instrument.building and construction industry means the industry of carrying out the construction, reconstruction, renovation, alteration, demolition or maintenance or repairs of or to any of the following—
(a) buildings, (b) swimming pools, (c) fences, (d) roadworks, railways, airfields or other works for the carriage of persons, animals or vehicles, (e) breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purpose of navigation, (f) works for the storage or supply of water or for the irrigation of land, (g) works for the conveyance, treatment or disposal of sewage or of the effluent from any premises, (h) bridges, viaducts, aqueducts or tunnels, (i) chimney stacks, cooling towers, drilling rigs, gas holders or silos, (j) pipelines, (k) structures, fixtures or works for use in or in conjunction with any building or other works referred to in paragraphs (a) to (j) inclusive, (l) navigational lights, beacons or markers, (m) works for the drainage of land, (n) works for the storage of liquids, other than water, or of gases, (o) works for the transmission of electric power, (p) works for the transmission of wireless or telegraphic communications, and includes pile driving and the preparation of the site for any building or other works referred to in paragraphs (a) to (p) inclusive. building and construction work means work in the building and construction industry performed in New South Wales, being—
(a) work carried out under a contract of employment for which a rate of pay is fixed by an award prescribed by the regulations, or (b) work—
(i) carried out under a contract that is not a contract of employment, and (ii) that would, if it had been carried out under a contract of employment, be work for which a rate of pay was fixed by an award prescribed by the regulations, or (c) the work of a person who, under a contract of employment—
(i) directly supervises work of the kind referred to in paragraph (a) or (b), or (ii) is a clerk of works. Chief Executive Officer means the Secretary of the Department of Finance, Services and Innovation.Committee means the Building and Construction Industry Long Service Payments Committee constituted by section 8.Commonwealth industrial instrument means an award, workplace agreement or other agreement made under (or taken to have been made, or to have effect, under) an Act of the Commonwealth, being an award, workplace agreement or other agreement prescribed (or of a class prescribed) by the regulations for the purposes of this definition.Corporation means the Long Service Corporation established under the. Long Service Corporation Act 2010 corresponding authority means the authority under a corresponding law that is for the time being charged with the day to day administration of that law.corresponding law means a law declared by an order in force under subsection (6) to be a corresponding law for the purposes of this Act.financial year means a year commencing on 1 July.former Act means the. Building and Construction Industry Long Service Payments Act 1974 foundation worker means a registered worker whose name was entered in the register (within the meaning of the former Act) immediately before the commencement of this Act as the name of a foundation worker.Fund means the Building and Construction Industry Long Service Payments Fund established under the. Long Service Corporation Act 2010 long service levy means a long service levy under Part 5, and includes an additional amount of any such levy under section 41.long service payment means a long service payment under Part 4.reciprocating State or Territory means a State or Territory of the Commonwealth declared by an order in force under subsection (6) to be a reciprocating State or Territory for the purposes of this Act.register of workers means the register of workers kept by the Corporation under section 15.registered worker means a person whose name is entered in the register of workers.regulation means a regulation made under this Act.standard pay means—
(a) except as provided by paragraph (b), the amount of ordinary pay that is payable at the rate applicable for the classification “Carpenter and/or Joiner” under the Building Tradesmen (State) Construction Award published in the Industrial Gazette on 16 July 1975 in respect of work on 5 working days during those hours in which ordinary pay is payable, or (b) the amount of pay prescribed by, or determined in accordance with, the regulations. subcontract worker means a worker who performs work otherwise than under a contract of employment.worker means any person who, under a contract, whether or not a contract of employment, performs building and construction work, however remunerated, but does not include a person of a class prescribed as exempt by the regulations or a person who performs, or supervises the performance of, any such work under a contract of employment—
(a) with any body constituted by any Act of the Parliament of a State or of the Commonwealth (other than the or a prescribed Act), or Royal Agricultural Society Act 1911 (b) with a council, a county council or a joint organisation within the meaning of the . Local Government Act 1993 working day means a day on which ordinary rates of pay are payable.year’s service means a year’s service within the meaning of subsection (5).Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) For the purposes of this Act, work performed by a person outside New South Wales shall be deemed to be building and construction work if—
(a) that work would, if it were performed in New South Wales, be building and construction work, and (b) an amount, in the nature of a long service levy, determined by the Corporation has been paid to the Corporation in respect of that work or an agreement has been entered into with the Corporation for the payment of that amount. (3) A reference within the Act to a development consent under the includes a reference to an approval under Part 3A or Part 5.1 of that Act. Environmental Planning and Assessment Act 1979
(1) There is constituted by this Act the Building and Construction Industry Long Service Payments Committee. (2) The Committee shall consist of 11 members, of whom—
(a) one, who shall be the Chairperson of the Committee, shall be the Chief Executive Officer or a person for the time being nominated by the Chief Executive Officer, (b) 3 shall be persons appointed by the Minister from a panel of 6 persons nominated by Unions NSW, (c) 3 shall be persons appointed by the Minister from a panel of 6 persons nominated jointly by the Master Builders’ Association of New South Wales and the Australian Federation of Employers and Industries, and (d) 4 shall be persons appointed by the Minister who have a knowledge of, and experience in, the building and construction industry.
(1) The date on which a person becomes a registered worker is—
(a) if the person applied to be registered as a worker—the date on which application for the person’s registration was lodged with the Corporation, or (b) if the Corporation registered the person on its own initiative—the date of that registration.
(1) In this section, non-service day , in respect of a registered worker, means a day in respect of which the worker did not accumulate a service credit (not being a day prescribed by the regulations as a day to be disregarded in calculations made under subsection (1A) or (1B) in respect of the worker).(1A) The Corporation is to cancel the registration of a registered worker who has not been credited with at least 5 years’ service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law. (1B) The Corporation may suspend the registration of a registered worker who has been credited with at least 5 years’ service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law. (2) The Corporation may at any time cancel the registration of a registered worker if it is satisfied that the person concerned is not a worker and that the person’s application to become a registered worker should have been refused. (2A) The Corporation is to cancel the registration of a worker—
(a) on the making of any payment in accordance with section 28 (1) (c), (d) or (e), or section 28 (2), in respect of the worker, or (b) at the request of the worker.
(1) An employer who employs, under a contract of employment, a worker shall—
(a) within 1 month after 30 June in each year, furnish to the Corporation a certificate of service in respect of the worker for the year immediately preceding that 30 June, (b) within 7 days (or such other time as may be prescribed by the regulations) after the worker ceases to be so employed, furnish to the Corporation a certificate of service in respect of the worker for the period commencing on 1 July immediately preceding that cessation of employment and ending on that cessation of employment, and (c) within such time as is specified by the Corporation in a notice served on the employer, furnish to the Corporation a certificate of service in respect of the worker for the period specified in the notice. Maximum penalty—20 penalty units.
(1) A registered worker may furnish to the Corporation a claim for service credits in respect of building and construction work performed by the registered worker under a contract other than a contract of employment. (2) A claim for service credits under subsection (1) may be furnished—
(a) within 12 months after 30 June in any year, in respect of building and construction work performed by the registered worker in the year immediately preceding that 30 June, (b) within 12 months after the registered worker permanently ceases work in the building and construction industry, in respect of building and construction work performed by the registered worker in the period commencing on 1 July immediately preceding that cessation of work and ending on that cessation of work, or (c) at such other times as the Corporation may approve in any particular case, in respect of building and construction work performed by the registered worker in the period specified by the Corporation in that approval.
(1) A registered worker who was employed on a full-time basis under a contract of employment in the performance of building and construction work for the whole of a financial year is entitled to be credited in the register of workers with 220 days’ service. (2) A registered worker who was so employed for a period consisting of part of a financial year only is entitled to be credited in the register of workers with a number of days’ service equal to two-thirds of the number of days in that period.
(1) A registered worker who—
(a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and (b) has not, since the termination of that contract, performed paid work of any kind, and (c) in the financial year in which the contract was terminated, or in any of the 3 subsequent financial years, suffered an illness or injury that is certified in writing by a medical practitioner to be of such a nature as to render the registered worker reasonably unable to perform building and construction work (whether or not any such work was available for the registered worker and whether or not the illness or injury existed before the registered worker last performed any such work), is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days during which the worker was certified as being unable to perform building and construction work. (2) A registered worker who—
(a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and (b) has not, since the termination of that contract, performed paid work of any kind, and (c) has, since the termination of that contract, in any financial year undertaken a training course recognised by the Corporation as being relevant to the building and construction industry in order to enhance the registered worker’s prospects of being employed in the industry, is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent undertaking the course while unemployed during that year. (3) A registered worker who in any financial year performs voluntary work in the nature of building and construction work in New South Wales as a result of an emergency declared or otherwise recognised under the or under any similar Act of the State or of the Commonwealth, is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent performing that voluntary work during that year. State Emergency and Rescue Management Act 1989
(1) A person shall not be credited in the register of workers with any day’s service in the building and construction industry unless that day was on or after the date, shown in that register, on which the person became a registered worker. (2) A registered worker shall not be credited in the register of workers with more than 220 days’ service in the building and construction industry in respect of any financial year.
(1) The Corporation shall, as soon as practicable after 31 July in each year, serve on each person who on 30 June in that year was a registered worker a notice—
(a) specifying the number of days’ service in the building and construction industry, as shown in the register of workers, with which that registered worker has, in accordance with this Division, been credited in respect of the year ended on that 30 June, and (b) specifying the total number of days’ service in the building and construction industry with which that registered worker has, in accordance with this Division, been credited. (2) Any person on whom a notice is served under subsection (1) may, within 6 months after the service of the notice, lodge with the Corporation an objection against the accuracy of the notice in relation to the number of days specified in the notice pursuant to subsection (1) (a). (3) The Corporation shall determine an objection lodged pursuant to subsection (2) and the determination of the Corporation shall, subject to any determination made by the Committee in an appeal under Part 6, be final and conclusive.
(1) A person who is a registered worker having service credits in the register of workers may apply to the Corporation in the approved form for a long service payment if—
(a) the person has completed 10 years’ service as a worker, (b) (c) the person has completed 5 years’ service as a worker and satisfies the Corporation that he or she has permanently ceased to perform building and construction work, (d) the person has completed 55 days’ service as a worker and, having attained the prescribed retiring age, satisfies the Corporation that he or she has permanently ceased to perform building and construction work, (e) the person has completed 55 days’ service as a worker and a registered medical practitioner has certified the person to be totally and permanently incapacitated for building and construction work, (f) the person has completed 5 years’ service as a worker since the person—
(i) first became entitled to apply for a long service payment by virtue of paragraph (a), or (ii) would have become so entitled but for the operation of any provision of section 31, whether or not any such payment was made, or (g) the person has completed 5 years’ service as a worker since the person—
(i) last became entitled to apply for a long service payment under paragraph (f), or under any previous application of this paragraph, or (ii) would have become so entitled but for the operation of any provision of section 31, whether or not any such payment was made. (2) The personal representative of a person who died having service credits in the register of workers may apply to the Corporation in the approved form for a long service payment if—
(a) the person was, immediately before death, entitled to apply for a long service payment by virtue of subsection (1) (a), (f) or (g), (b) the person had, immediately before the date of death, completed 10 or more years’ service as a worker, or (c) the person had, immediately before that date, completed at least 55 days’ service as a worker but was not a worker referred to in paragraph (a) or (b).
(1) As soon as practicable after an application is made to the Corporation under section 28 (1) or (2), the Corporation shall, subject to subsection (2) and section 30, pay to the applicant a long service payment calculated in accordance with the following formula—
(1) A payment to which a person becomes entitled under this Act or the former Act in respect of any period of service in the building and construction industry is to be reduced, in accordance with this section, in consequence of any benefit (including any long service leave taken in advance) due to and taken by the person under an approved long service leave scheme calculated in respect of the same period (in this section referred to as an alternative benefit ).(2) A person is not entitled to a payment based on service credits accrued in a period of service in respect of which the person has taken an alternative benefit, except as provided by this section.
(1) Where—
(a) a person is provided with any alternative benefits referred to in section 31 (1) in respect of any period of service in the building and construction industry, and (b) that person—
(i) was, when those benefits were provided, a registered worker, or (ii) is the personal representative of a person who, when the person died, was a registered worker, the Corporation shall, upon application therefor made in writing within 12 months after those benefits were provided or within such longer period (not exceeding 2 years) as the Corporation may in any particular case allow, pay to the employer who provided those benefits an amount calculated in accordance with the following formula— where— EP represents the amount to be paid to that employer,S represents the number of days’ service with which the worker was credited in the register of workers in respect of a period during which the worker was employed under a contract of employment by the employer, and for which the alternative benefits were provided, increased by 275 where that period commenced on the appointed day within the meaning of the former Act,P represents, at the date the application is lodged with the Corporation—
(a) in the case of a registered worker who, in the opinion of the Corporation, performed work under a contract of employment during the whole or a majority of the relevant period before that date—the amount of ordinary pay that is, in the opinion of the Corporation—
(i) payable for the classification of the registered worker under the award fixing a rate of pay for that work, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (ii) payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or (iii) if the registered worker is a person referred to in paragraph (c) (i) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers under the supervision of the registered worker, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or(iv) if the registered worker is a person referred to in paragraph (c) (ii) of the definition of building and construction work in section 3—payable under an award fixing a rate of pay for work that is equivalent, or substantially equivalent, to the type of work carried out by workers for whom the registered worker has responsibility in his or her capacity as a clerk of works, calculated as at that date in respect of work on 5 working days during those hours in which ordinary pay is payable, or(b) in any other case—an amount that is determined by the Corporation as the appropriate amount of ordinary pay at that date in respect of work on 5 working days during hours in which ordinary pay is payable and that is calculated by reference to either of the following rates—
(i) the rate of ordinary pay that is, in the opinion of the Corporation, payable under an award for work that is equivalent (or substantially equivalent) to the type of work carried out by the registered worker, or (ii) another rate of ordinary pay that is, in the opinion of the Corporation, appropriate to the type of work carried out by the registered worker. (2) A reference in subsection (1) in the matter relating to P to the relevant period before any date is a reference to the last period of 55 working days before that date during which the registered worker performed building and construction work.
(1) A person who is a registered worker may apply to the Corporation in the approved form for the payment by the Corporation of a long service benefit calculated in accordance with the provisions of the corresponding law of a reciprocating State or Territory if—
(a) the person—
(i) has completed a period of service as a worker in that State or Territory or partly in that State or Territory and partly in New South Wales, and (ii) by virtue of having completed that service, is entitled under a provision of that corresponding law to a long service benefit payable in or reducible to cash, and (b) the person would, if all of that service had been performed in New South Wales, have been entitled to apply for a long service payment by virtue of section 28 (1). (2) The personal representative of a deceased registered worker who, immediately before death, was entitled to apply for the payment of a long service benefit under subsection (1) may apply to the Corporation in the approved form for that payment to be made. (3) A person who, in or in support of an application made under subsection (1) or (2), makes a statement that is, to that person’s knowledge, false or misleading in a material particular is guilty of an offence and liable to a penalty not exceeding 50 penalty units. (4) As soon as practicable after receiving an application made under subsection (1) or (2), the Corporation shall, on being satisfied that the applicant is entitled under the relevant corresponding law to the payment of a long service benefit and on being authorised by the corresponding authority to make that payment, pay to the applicant the amount of that benefit calculated in accordance with that law. (4A) A payment made by the Corporation in respect of an application under subsection (2) is valid and effectual against any demand in respect of the payment by any other person.
(1) Despite sections 29 and 32, the regulations may make provision for the determination of minimum and maximum amounts for P for the purposes of the formulae in those sections.
(1) In this section a reference to a person liable to pay a long service levy is a reference to—
(a) a person who has paid that levy or was liable to pay that levy when it was first due for payment as referred to in sections 37 and 38, or (b) subject to section 38, any other person for whom the building has been or is being erected. (2) A person liable to pay a long service levy in respect of the erection of a building shall, if so required by the Corporation by notice in writing, furnish to the Corporation such information as is specified in the notice in relation to the actual cost of erecting the building. Maximum penalty—20 penalty units.
(1) A person who has paid a long service levy in respect of the erection of a building, upon application in an approved form, is entitled to a refund of the amount of that long service levy if—
(a) in the case of a building that may not be erected on the land concerned except with development consent under Part 4 of the , or the erection of which is complying development within the meaning of that Act—the building has not been erected and no development consent or complying development certificate enabling the erection of the building remains in force, or Environmental Planning and Assessment Act 1979 (b) in any case—the building has not been erected and the Corporation is satisfied that the building is no longer to be erected. (1A) Regulations made for the purposes of section 34 (2) (c) may provide for a refund of the whole or part of a long service levy that had been paid in respect of a building, or by or on behalf of a person, exempted from payment of the levy. (2) Where, from such information as satisfies the Corporation, it appears to the Corporation that—
(a) the building in respect of which a long service levy has been paid is wholly or partly completed, (b) the cost of erecting the building as then determined by the Corporation is less than the cost of erecting the building as last determined by the Corporation, and (c) the amount of the difference in that cost exceeds the prescribed amount referred to in subsection (5), the Corporation shall, upon application in an approved form, refund to the person who paid the long service levy the amount calculated at the rate prescribed by section 35 on the amount of that difference. (3) An application for a refund under this section may be made on more than 1 occasion in respect of the erection of the same building.
(1) A long service levy shall be deemed when it becomes due and payable to be a debt due to Her Majesty and payable to the Corporation.
(1) A person may appeal to the Committee against a decision of the Corporation—
(a) to refuse an application for registration as a worker, or (b) to cancel the person’s registration (otherwise than as authorised by section 19 (2A)) as a worker.
(1) For the purposes of this Act, the Minister may from time to time enter into an agreement, containing reciprocal arrangements with respect to the matters specified in subsection (2), with the Minister charged with administering the law of a State (other than New South Wales), or a Territory, of the Commonwealth which provides for making payments of long service benefits to persons engaged in the building and construction industry in that State or Territory.
(1) A person who employs workers, whether or not under a contract of employment, shall keep such books and records as may be prescribed containing such particulars as may be prescribed relating to those workers.
(1) In this section, premises includes any structure, building and place (whether built upon or not), and any part thereof.(2) A person authorised by the Corporation may—
(a) enter any premises in order—
(i) to determine whether any workers are employed or engaged there, or (ii) to determine, for the purposes of section 40, the cost of erecting a building, and (b) require a person to produce, at such time and place as the authorised person may specify, any books, records or other documents—
(i) required to be kept under or for the purposes of this Act or the regulations, or (ii) relating to the cost of erecting a building, and (c) make such examination and enquiry as may be expedient for the purposes of any determination mentioned in paragraph (a) or for the purpose of ascertaining whether the provisions of this Act and the regulations are being complied with.
(1) A person (the record inspector ) to whom a record is produced under section 58 may take possession of the record if the record inspector considers it necessary to do so for the purpose of obtaining evidence or protecting evidence from destruction.
(1) The Corporation may enter into an arrangement (an information sharing arrangement ) with a relevant agency, or the head of a relevant agency, for the purposes of sharing or exchanging information held by the Corporation or the agency.
(1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—
(a) section 16A, (b) section 39. (2) A person commits an offence against this section if—
(a) a corporation commits an executive liability offence, and (b) the person is—
(i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and (c) the person—
(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and (ii) fails to take all reasonable steps to prevent or stop the commission of that offence. Maximum penalty—The maximum penalty for the executive liability offence if committed by an individual.
(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 63.(2) A person commits an offence against this section if—
(a) a corporation commits a corporate offence, and (b) the person is—
(i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and (c) the person—
(i) aids, abets, counsels or procures the commission of the corporate offence, or (ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or (iii) conspires with others to effect the commission of the corporate offence, or (iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence. Maximum penalty—The maximum penalty for the corporate offence if committed by an individual.
(1) An authorised person may issue a penalty notice to a person if it appears to the authorised person that the other person has committed a penalty notice offence. (2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(Section 8 (4))
(Section 67)