Long Service Leave Act 1955 (NSW)

Long Service Leave Act 1955 No 38

An Act to make provisions entitling workers to long service leave; to amend the Industrial Arbitration Act 1940; and for purposes connected therewith.

1 Name of Act This Act may be cited as the Long Service Leave Act 1955.

2 Construction This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act, and so as not to exceed the legislative power of the State to the intent that where any provision of this Act, or the application thereof to any person or circumstances is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected.

3 Definitions (1) In this Act, unless the context otherwise indicates or requires— Agreement means an enterprise agreement within the meaning of the Industrial Relations Act 1996. Award means an award within the meaning of the Industrial Relations Act 1996. Employer means any person employing any worker or workers and includes the Crown. Inspector means an inspector appointed under the Industrial Relations Act 1996. Ordinary pay, in relation to any worker, means the sum of— (a) where the worker is, on the prescribed date, remunerated wholly in relation to an ordinary time rate of pay fixed by the terms of the worker's employment— (i) the amount of the ordinary remuneration of the worker, as on the prescribed date, or (ii) the average weekly amount of the ordinary remuneration which was earned by the worker as a worker during that part of the period of 5 years ending on the prescribed date during which the worker was so remunerated, whichever is the greater, (b) where the worker is, on the prescribed date, remunerated otherwise than wholly in relation to an ordinary time rate of pay so fixed—the amount of the average weekly wage which was earned by the worker as a worker (being the average of the amounts received by the worker each week under those terms after excluding any amount payable to the worker in respect of shift work, overtime or other penalty rates) during the period actually worked by the worker during— (i) the period of 12 months, or (ii) the period of 5 years, ending on the prescribed date, whichever amount of average weekly wage is the greater, (c) the average weekly amount of bonuses received by the worker as a worker employed by the person who is the worker's employer on the prescribed date during— (i) where paragraph (a) (i) or (b) (i) applies for the purpose of calculating the worker's ordinary pay, the period of 12 months, or (ii) where paragraph (a) (ii) or (b) (ii) applies for that purpose, the period of 5 years, ending on the prescribed date, and (d) where the worker was, immediately before the prescribed date, provided with board or lodging by the person who is the worker's employer on the prescribed date—the cash value of that board or lodging. Worker means person employed, whether on salary or wages or piecework rates, or as a member of a buttygang, and the fact that a person is working under a contract for labour only, or substantially for labour only, or as lessee of any tools or other implements of production, or as an outworker, or is working as a salesman, canvasser, collector, commercial traveller, insurance agent, or in any other capacity in which the person is paid wholly or partly by commission shall not in itself prevent such person being held to be a worker but does not include a person who is a worker within the meaning of the Long Service Leave (Metalliferous Mining Industry) Act 1963. (2) For the purposes of— (a) the definition of ordinary pay in subsection (1) and of subsection (2A), prescribed date, in relation to a worker— (i) means, except as provided in subparagraph (ii), the date immediately preceding the date on which that worker enters, or is deemed to have entered upon long service leave or the date of that worker's death, as the case may require, or (ii) where the worker has, in relation to any period of long service leave, entered into an agreement authorised by subsection (2B), means, in relation to that period of long service leave, the date of that agreement, (b) paragraph (a) of that definition, ordinary remuneration, in relation to a worker, means the remuneration for that worker's normal weekly number of hours of work calculated at the time rate of pay fixed by the terms of that worker's employment for his or her work under the terms of that worker's employment reduced by any amount payable to that worker in respect of shift work, overtime or other penalty rates or, where 2 or more time rates of pay are so fixed, the amount of remuneration for that worker's normal weekly number of hours of work calculated at the higher or highest of those rates and so reduced, (c) paragraph (c) of that definition, bonus, in relation to a worker, means any amount received by that worker under the terms of that worker's employment under any bonus, incentive or other similar scheme, not being an amount taken into consideration in determining the amount of the average weekly wage of that worker referred to in paragraph (b) of that definition, and (d) paragraph (d) of that definition, the cash value of any board or lodging provided for a worker shall be deemed to be its cash value as fixed by or under the terms of the worker's employment or, if it is not so fixed, shall be computed at the rate of $15, or such greater sum as may be prescribed instead, a week for board and $5, or such greater sum as may be prescribed instead, a week for lodging. (2A) For the purpose of subsection (2) (b), where no normal weekly number of hours of work is fixed for a worker under the terms of that worker's employment, the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by that worker during the period of 12 months, or 5 years, as the case may require, ending on the prescribed date. (2B) Where long service leave has accrued to a worker and the employer of that worker and that worker have agreed that the taking of the long service leave due to that worker or any part thereof shall be postponed that employer and that worker may agree that, for the purposes of the definition of ordinary pay in subsection (1), the prescribed date shall, in relation to that long service leave or part, as the case may be, be the date the agreement was entered into. (2C) Despite anything to the contrary in this section, the ordinary pay of a worker is not to include or be increased by the amounts paid under any bonus, incentive or other similar scheme if the annual amount of the worker's ordinary pay (excluding any amounts so paid) exceeds the amount prescribed by the regulations for the purposes of this subsection. (3) A person who is engaged in plying for hire or in the delivery of goods or in the transportation of passengers with any vehicle or vessel the use of which is obtained by that person under a contract of bailment (other than a hire purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings or otherwise shall, where the work in which such person is so engaged is work for which, by an award or industrial agreement, a price or rate has been fixed for persons performing such work, be deemed, for the purposes of this Act, to be a worker employed by the person from whom the use of the vehicle or vessel is so obtained, and such lastmentioned person shall, for the purposes of this Act, be deemed to be the employer of such worker unless such persons or either of them establishes to the satisfaction of the tribunal in which proceedings under this Act are instituted that the contract of bailment was a bona fide contract and was not entered into for the purpose of avoiding the operation of this Act or of an award or industrial agreement. (4) Where by any provision of the Industrial Relations Act 1996 a person is deemed for the purposes of that Act to be an employee and any other person is deemed for such purposes to be the employer of that employee, then for the purposes of this Act the person so deemed to be an employee shall be deemed to be a worker and the person so deemed to be the employer shall be deemed to be the employer of that worker.