Long Service Leave (Preservation of Entitlements) Act 2006

Long Service Leave (Preservation of Entitlements) Act 2006 Act No. 56/2006

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 3. Principal Act 2

PART 2—PRESERVATION OF SUPERIOR AND ACCRUED ENTITLEMENTS 3 4. New Parts 6 and 7 inserted 3 PART 6—PRESERVATION OF SUPERIOR LONG SERVICE LEAVE ENTITLEMENTS 3 82. Application of Part 3 83. Definition of award 3 84. Preservation 4 PART 7—PRESERVATION OF ACCRUED LONG SERVICE LEAVE ENTITLEMENTS 4 85. Definitions for this Part 4 86. Protection of accrued entitlements 5

PART 3—DUTIES OF EMPLOYERS 6 5. New Parts 8 and 9 inserted 6 PART 8—DISCLOSURE REQUIREMENTS FOR WORKPLACE AGREEMENTS 6 87. Disclosure of unfair long service leave entitlements 6 88. Civil penalty 7 PART 9—EMPLOYMENT TERMINATED OR PREJUDICED 7 89. Definition 7 90. Employment not to be terminated or prejudiced for exercising rights under this Act 8

i 91. Reversal of onus of proof in certain circumstances 8 92. Civil penalty 8 93. Reimbursement, reinstatement and compensation 9

PART 4—MISCELLANEOUS 11 6. Miscellaneous amendments 11 ═══════════════

ENDNOTES 13

Victoria

No. 56 of 2006

Long Service Leave (Preservation of Entitlements) Act 2006†

[Assented to 15 August 2006]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose The purpose of this Act is to amend the Long Service Leave Act 1992 to— (a) protect and maintain existing award long service leave entitlements that are superior to those in Part 5 of that Act;

1 s. 2

(b) preserve accrued long service leave entitlements under an award or agreement that no longer applies due to termination, variation, expiry or transmission of business; (c) require employers to disclose to employees if any proposed workplace agreement directly or indirectly impacts on long service leave entitlements under that Act; (d) allow the Industrial Division of the Magistrates' Court to make certain orders if that Court finds that an employer has dismissed or otherwise prejudiced an employee in relation to long service leave. 2. Commencement (1) This Act (except Parts 2 and 4) comes into operation on 1 October 2006. (2) Parts 2 and 4 are deemed to have come into operation on 27 March 2006. 3. Principal Act See: In this Act, the Long Service Leave Act 1992 is Act No. 83/1992. called the Principal Act. Reprint No. 3 as at 16 February 2006. LawToday: www.dms. dpc.vic. gov.au

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PART 2—PRESERVATION OF SUPERIOR AND ACCRUED ENTITLEMENTS

4. New Parts 6 and 7 inserted After Part 5 of the Principal Act insert—

'PART 6—PRESERVATION OF SUPERIOR LONG SERVICE LEAVE ENTITLEMENTS

82. Application of Part This Part applies despite anything to the contrary in this Act. 83. Definition of award In this Part— "award"— (a) has the same meaning as it had in the Workplace Relations Act 1996 of the Commonwealth as in force immediately before 27 March 2006; and (b) includes a term of an award that was a common rule in Victoria under section 141, 142 or 493A of the Workplace Relations Act 1996 of the Commonwealth as in force immediately before 27 March 2006; and (c) in relation to an employee and his or her employer, means an award — (i) that was binding on the employer immediately before 27 March 2006 or would have been binding had the employer been an

3 Long Service Leave (Preservation of Entitlements) Act 2006 Act No. 56/2006

Part 4—Miscellaneous s. 4

employer in the relevant industry at that time; and (ii) to which the employee's employment was subject immediately before 27 March 2006 or would have been subject had the employee been employed by the employer at that time. 84. Preservation (1) If, immediately before 27 March 2006, an award provided a long service leave entitlement that was more beneficial to an employee in any respect than the entitlement provided in Part 5, the employee is entitled under this Act to that superior entitlement instead of his or her entitlement under Part 5. (2) Sub-section (1) applies to an employee whether or not he or she was employed immediately before 27 March 2006.

PART 7—PRESERVATION OF ACCRUED LONG SERVICE LEAVE ENTITLEMENTS

85. Definitions for this Part In this Part— "award" has the same meaning as it has in Part 6; "protected accrued long service leave entitlement" in relation to an employee means an entitlement to long service leave— (a) that accrued by operation of an award that has subsequently been varied, set aside, ceased to have

effect or was revoked under Part 10 of the Workplace Relations Act 1996 of the Commonwealth; (b) that accrued by operation of an award that is no longer applicable to that employee under Division 5 of Part 11 of the Workplace Relations Act 1996 of the Commonwealth; (c) that accrued by operation of an employment agreement that has subsequently been terminated under— (i) Division 9 of Part 8 of the Workplace Relations Act 1996 of the Commonwealth; (ii) section 170MH of the Workplace Relations Act 1996 of the Commonwealth as continued in operation by clause 2(1)(k) of Schedule 7 to that Act; (d) that accrued by operation of an agreement that is no longer applicable to that employee under Divisions 3 or 4 of Part 11 of the Workplace Relations Act 1996 of the Commonwealth. 86. Protection of accrued entitlements An employee who is or was at any time entitled to a protected accrued long service leave entitlement is entitled to the benefit of that entitlement under this Act regardless of the status of the award or agreement under which that entitlement accrued.'.

Part 4—Miscellaneous

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PART 3—DUTIES OF EMPLOYERS

5. New Parts 8 and 9 inserted After Part 7 of the Principal Act insert—

'PART 8—DISCLOSURE REQUIREMENTS FOR WORKPLACE AGREEMENTS

87. Disclosure of unfair long service leave entitlements (1) At least 7 days before entering into an employment agreement that would modify or remove an employee's entitlements under this Act, the employer must notify the employee in writing of the modification or removal (as the case may be). (2) For the purposes of sub-section (1), the notice must state whether the proposed agreement modifies or removes any of the following entitlements under the Act— (a) an entitlement to long service leave on completing 15 years of continuous service; (b) an entitlement to long service leave where an employee has completed at least 10 but less than 15 years of continuous service; (c) an additional entitlement to long service leave if employment stops after 15 years; (d) an entitlement to long service leave if employment stops after 7 years but before 10 years; (e) any entitlement arising from the operation of section 84 or 86.

88. Civil penalty (1) If an employer contravenes section 87, the contravention is not an offence, however a court may make an order imposing a penalty of up to $10 000 on the employer. (2) An application for an order under sub- section (1) may be made— (a) by the employee; or (b) at the request of the employee, by an organisation of which the employee is a member, or eligible to be a member; or (c) by the Minister. (3) A court that imposes a penalty under sub- section (1) may order that the penalty, or a part of the penalty, be paid— (a) to a particular person or organisation; or (b) into the Consolidated Fund. (4) An order imposing a penalty under sub- section (1) is taken, for the purposes of enforcement, to be an order made by the court in a civil proceeding. (5) In this section, "court" means the Industrial Division of the Magistrates' Court.

PART 9—EMPLOYMENT TERMINATED OR PREJUDICED

89. Definition In this Part, "court" means the Industrial Division of the Magistrates' Court.

90. Employment not to be terminated or prejudiced for exercising rights under this Act An employer must not— (a) terminate or threaten to terminate the employment of an employee; or (b) alter the position of an employee to the employee's prejudice— because the employee is entitled to or seeks to exercise any entitlement or other right under this Act. 91. Reversal of onus of proof in certain circumstances In proceedings for a contravention of section 90, if the employee proves that he or she— (a) took long service leave; or (b) applied for long service leave; or (c) otherwise communicated to the employer his or her intention to take long service leave— the onus of proving that the termination, threat or prejudice was not actuated by the reason alleged by the employee lies on the employer. 92. Civil penalty (1) If an employer contravenes section 90, the contravention is not an offence, however the court may make an order imposing a penalty of up to $10 000 on the employer.

(2) An application for an order under sub- section (1) may be made— (a) by the employee; or (b) at the request of the employee, by an organisation of which the employee is a member, or eligible to be a member. (3) The court may order that the penalty, or a part of the penalty, be paid— (a) to a particular person or organisation; or (b) into the Consolidated Fund. (4) An order imposing a penalty under sub- section (1) is taken, for the purposes of enforcement, to be an order made by the court in a civil proceeding. 93. Reimbursement, reinstatement and compensation (1) If an employer is found to have contravened section 90, the court may— (a) order the employer to pay the employee a specified sum by way of reimbursement for the remuneration lost by the employee; and (b) subject to sub-section (2), order that the employee be reinstated in his or her former position or a similar position. (2) If the court considers that it would be impracticable to reinstate the employee, the court may order the employer to pay the employee an amount of compensation not exceeding the amount of remuneration of the employee during the 12 months immediately before the employee's employment was terminated.

(3) An order under sub-section (1)(a) or (2) must be taken to be a judgment debt due by the employer to the employee and may be enforced in the court accordingly. (4) The amount of remuneration that would have been payable to an employee in respect of any period that his or her employer fails to give effect to an order under sub-section (1) (b) is recoverable as a debt due to the employee by the employer in any court of competent jurisdiction.'. ______

PART 4—MISCELLANEOUS

6. Miscellaneous amendments (1) In section 4 of the Principal Act, in the definition of "employment agreement"— (a) in paragraph (a), after "Commonwealth" insert "as in force immediately before 27 March 2006"; (b) in paragraph (b), for "Commonwealth;" substitute "Commonwealth; and"; (c) after paragraph (b) insert— "(c) a workplace agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth;". (2) In section 4 of the Principal Act insert the following definition— ' "organisation" means— (a) a trade union within the meaning of the Workplace Relations Act 1996 of the Commonwealth; or (b) an association of employees the principal purpose of which is to protect and promote the interests of employees in matters concerning their employment;'. (3) In section 79(3) of the Principal Act— (a) in paragraph (a), after "Commonwealth" insert "as in force immediately before 27 March 2006"; (b) in paragraph (b), for "Commonwealth." substitute "Commonwealth; or";

(c) after paragraph (b) insert— "(c) a workplace agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth.". (4) In section 159(2) of the Principal Act— (a) in paragraph (a), after "Commonwealth" insert "as in force immediately before 27 March 2006"; (b) in paragraph (b), for "Commonwealth." substitute "Commonwealth; or"; (c) after paragraph (b) insert— "(c) a workplace agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth.". (5) In section 160(8) of the Principal Act, in the definition of "employment agreement"— (a) in paragraph (a), after "Commonwealth" insert "as in force immediately before 27 March 2006"; (b) in paragraph (b), for "Commonwealth;" substitute "Commonwealth; or"; (c) after paragraph (b) insert— "(c) a workplace agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth;". ═══════════════

Endnotes

ENDNOTES

14 † Minister's second reading speech— Legislative Assembly: 31 May 2006 Legislative Council: 19 July 2006 The long title for the Bill for this Act was "to amend the Long Service Leave Act 1992 and for other purposes."