An Act to make Provision for Long
Service Leave in respect of Employees of the Commonwealth and certain other
Persons, and for other purposes
1
Short title [see
Note 1]
This Act may be cited as the Long
Service Leave (Commonwealth Employees) Act 1976.
2
Commencement [see
Note 1]
This Act shall come into operation on
the day on which it receives the Royal Assent.
3
Repeal and savings
(1) The following Acts are repealed:
Commonwealth Employees’ Furlough
Act 1943
Commonwealth Employees’ Furlough
Act 1944
Commonwealth Employees’ Furlough
Act 1951
Commonwealth Employees’ Furlough
Act 1953
Commonwealth Employees’ Furlough
Act 1958
Commonwealth Employees’ Furlough
Act 1959
Commonwealth Employees’ Furlough
Act 1967
Commonwealth Employees’ Furlough
Act 1968
Commonwealth Employees’ Furlough
Act (No. 2) 1968
Commonwealth Employees’ Furlough
Act 1973.
(2) The repeal of the Acts specified in subsection (1)
does not affect a grant, under those Acts, before the commencement of this Act,
of leave of absence for a period commencing after, or extending after, the
commencement of this Act, and this Act applies to and in relation to any leave
of absence so granted that occurs after the commencement of this Act as if it
had been granted under this Act.
(3) The repeal of the Acts specified in subsection (1)
does not prevent:
(a) the giving, under those Acts, of a
direction that the death of a person is to be presumed to have occurred on a
date before the commencement of this Act; or
(b) the making, under those Acts, of
any payment that could have been made if the direction had been given before
the commencement of this Act.
(4) Where it was provided by an Act in force
immediately before the commencement of this Act that a body was an authority of
the Commonwealth for the purposes of the Commonwealth Employees’ Furlough
Act 1943, that body is a public authority of the Commonwealth for the
purposes of this Act.
(5) Regulations made under the Acts repealed
by subsection (1) and in force immediately before the commencement of this
Act continue in force for the purposes of this Act as if they had been made
under this Act, but may be repealed or amended by regulations made under this
Act.
4
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACT enactment means an enactment as defined
by section 3 of the Australian Capital Territory (Self‑Government)
Act 1988.
ACT teaching service means the service known
on 1 November 1988 as the Commonwealth Teaching Service.
approving authority means:
(a) in relation to a person who is, or
was at the time of his or her ceasing to be an employee whether by reason of
death or otherwise, employed in the Department of the Senate—the President of
the Senate;
(b) in relation to a person who is, or
was at the time of his or her ceasing to be an employee whether by reason of
death or otherwise, employed in the Department of the House of
Representatives—the Speaker of the House of Representatives;
(c) in relation to a person who is, or
was at the time of his or her ceasing to be an employee whether by reason of
death or otherwise, employed in a Department of the Parliament established
under the Parliamentary Service Act 1999 other than the Department of the
Senate and the Department of the House of Representatives—the President of the
Senate and the Speaker of the House of Representatives;
(d) in relation to a person who is, or
was at the time of his or her ceasing to be an employee whether by reason of death
or otherwise, the holder of an office or appointment, being an office or
appointment to which this paragraph applies or applied by virtue of subsection (8)—the
person authorized to grant leave to the holder of the office or appointment by
the law establishing the office or providing for the making of the appointment;
or
(e) in any other case:
(i) the chief executive
officer of the employing agency (the original agency) in which
the person is employed, or in which the person was employed at the time of his
or her ceasing to be an employee (whether by reason of death or otherwise); or
(ii) if the original agency
no longer exists—the chief executive officer (however described) of the
replacement agency determined under subsection (1A).
category A employee means:
(a) an employee the whole of whose
employment that counts as employment in a qualifying service for the purposes
of this Act has been employment in a full‑time capacity; or
(b) an employee the whole of whose
employment that counts as employment in a qualifying service for the purposes
of this Act has been employment in a part‑time capacity.
category B employee means an employee other
than a category A employee.
chief executive officer, in relation to an
employing agency, means:
(a) if the employing agency is an
Agency within the meaning of the Public Service Act 1999—the Agency Head
(within the meaning of that Act); or
(b) in any other case—the person
(however described) who is the chief executive officer of the employing agency.
employee means a person who is to be taken,
by virtue of section 10, to be employed in Government Service for the
purposes of this Act.
employing agency means:
(a) an Agency within the meaning of
the Public Service Act 1999; or
(b) a public authority of the
Commonwealth; or
(c) a body covered by paragraph (6)(b);
or
(d) a company covered by paragraph (6)(c).
leave means leave of absence.
long service leave includes long leave,
furlough, extended leave and any other leave in the nature of long service
leave (howsoever referred to).
public authority of the Commonwealth means an
authority established or constituted by or under a law of the Commonwealth or
of the Australian Capital Territory, other than an ACT enactment.
retrenchment, in relation to an employee,
means the compulsory termination of the service of the employee for the reason
that:
(a) his or her service or position is
not necessary;
(b) the work for which he or she was
engaged is finished; or
(c) a reduction in the number of
employees is necessary because the quantity of work has diminished.
(1A) If the employing agency (the original
agency) in which a person was employed at the time of his or her
ceasing to be an employee no longer exists at a later time, then the replacement
agency at that later time is:
(a) the employing agency that is
responsible for the matter to which the person’s duties related, or mainly
related, at the time of his or her ceasing to be an employee; or
(b) if there is no employing agency
that is responsible for that matter—the employing agency that is nominated in
writing by the Secretary of the Department.
(2) Subject to section 13, a reference
in this Act to employment in a qualifying service is a reference to employment
in Government Service or in a service referred to in subsection 11(2).
(3) For the purposes of references in this
Act to a number of months (other than a reference to a number of completed
months), the number of months shall be taken to be, where appropriate, a whole
number and a fraction.
(4) For the purposes of references in this
Act to a number of years (other than a reference to a number of completed
years), the number of years shall be taken to be, where appropriate, a whole
number and a fraction.
(5) For the purposes of this Act, a member of
the Defence Force shall be deemed to be employed in the Defence Force, and, in
the case of a member not engaged on full‑time service, shall be deemed to
be so employed while he or she is performing his or her duties as such a
member.
(6) A reference in this Act to a person who
is employed by, remunerated by, in the service of, on loan to or appointed or
engaged by the Commonwealth shall be read as including a reference to a person
who is employed by, remunerated by, in the service of, on loan to or appointed
or engaged by:
(a) a public authority of the
Commonwealth;
(b) a body (not being a public
authority of the Commonwealth) established by or under a law of the
Commonwealth or of an internal Territory that is declared by the regulations to
be a body to which this subsection applies; or
(c) a company that:
(i) is incorporated
(whether before or after the commencement of this paragraph) under a law of the
Commonwealth or a law in force in a State or Territory;
(ii) is a trading
corporation, or a financial corporation, within the meaning of paragraph 51(20)
of the Constitution; and
(iii) is declared by the
regulations to be a body corporate to which this paragraph applies.
(7) For the purposes of this Act:
(b) a member of the Police Force of
the Northern Territory shall be deemed to be employed in the Public Service of
that Territory.
(8) Where:
(a) a provision of a law of the
Commonwealth or of an internal Territory, other than an ACT enactment
authorizes, whether expressly or otherwise, the Governor‑General or a Minister
to grant leave of absence to the holder of an office established by, or of an
appointment made under, that law; and
(b) the
holder of the office or appointment is, for the purposes of this Act, to be
taken to be employed in Government Service by reason of holding the office or
appointment;
the office is an office, or the
appointment is an appointment, as the case may be, to which paragraph (d)
of the definition of approving authority in subsection (1)
applies.
(10) For the purposes of this Act, the minimum
retiring age of an employee is:
(a) in the case of an employee who is
an APS employee—the minimum that applies to the employee under section 30
of the Public Service Act 1999; or
(b) in the case of an employee who is
employed by a public authority of the Commonwealth otherwise than in a
permanent capacity:
(i) if the public
authority has, for the purposes of this Act, fixed an age, less than 60 years,
as the minimum retiring age in respect of a class of employees in which an
employee is included—the age so fixed; or
(ii) if subparagraph (paragraph (i)
does not apply in relation to the employee—the age of 60 years; or
(c) in the case of any other employee:
(i) if, under the terms
and conditions of his or her employment, an age that is less than 60 years of
age is fixed as the age upon the attainment of which he or she is required to
retire from his or her employment and no other age is fixed as the age upon the
attainment of which he or she may retire from his or her employment—the age fixed
as the age upon the attainment of which he or she is required to retire from
his or her employment;
(ii) if, under the terms
and conditions of his or her employment, an age that is less than 60 years of
age is fixed as the age upon the attainment of which he or she may retire from
his or her employment and the age so fixed is less than the age fixed as the
age upon the attainment of which he or she is required to retire from his or
her employment or no age is fixed as the age upon the attainment of which he or
she is required to retire from his or her employment—the age fixed as the age
upon the attainment of which he or she may retire from his or her employment;
or
(iii) if subparagraph (paragraph (i)
or (ii) does not apply in relation to the employee—the age of 60 years.
5
Application of the Act
Where a person is or has been employed
in Government Service on or after the commencement of this Act, this Act
applies to and in relation to any employment of that person in a qualifying
service at any time before or after the commencement of this Act.
6
Meaning of authority of a State or of the Northern Territory
(1) Subject to regulations made in accordance
with section 7, a reference in this Act to an authority of a State shall
be read as a reference to:
(a) an authority, whether incorporated
or not, that was or is constituted by or under the law of a State for a public
purpose; or
(b) a local governing body that was or
is established by or under a law of a State.
(2) This section has effect as if the Australian
Capital Territory and the Northern Territory were States.
7
Regulations with respect to previous service with prescribed authorities etc.
(1) The regulations may provide that a
person, authority, institution or body (including a company), whether
incorporated or not, that is referred to in the regulations shall, for the
purposes of this Act, be deemed to be, or to have been, an authority of a
State.
(2) The regulations may provide that previous
employment of an employee in the service of a person, authority, institution or
body (including a company), whether incorporated or not, that is referred to in
the regulations shall be taken into account for the purposes of section 11
as if it had been employment in Government Service.
(3) Regulations made in accordance with this
section:
(a) may refer to a specified person,
authority, institution or body or to persons, authorities, institutions or
bodies included in a specified class of persons, authorities, institutions or
bodies;
(b) may be expressed to have effect in
respect only of employment in specified cases or circumstances; and
(c) may be expressed to have effect in
respect only of employment on or after a particular date, before a particular
date or during a particular period.
(4) This section has effect as if the Australian
Capital Territory and the Northern Territory were States.
8
Meaning of salary
(1) The regulations may provide that
allowances of specified kinds are to be included in salary for the purposes of
this Act or of a provision of this Act.
(2) The regulations may prescribe the
conditions subject to which, or specify the extent to which, payments in
accordance with this Act, or in accordance with a provision of this Act, are to
include amounts by way of, or in respect of, an allowance of a kind specified
in the regulations referred to in subsection (1), including conditions
having effect after the time at which leave commences.
(3) In the case of an employee who receives,
or of employees included in a class of employees who receive, salary otherwise
than by way of uniform amounts in respect of uniform periods, the regulations
may provide that an amount ascertained in the manner provided by the
regulations is to be the annual salary for the purposes of this Act of the
employee or of the employees included in the class of employees.
8A
Certain payments not included in salary
The
regulations may:
(a) provide that payments of a
specified kind are not included in salary; or
(b) specify the extent to which
payments of a specified kind are not included in salary; or
(c) prescribe
the circumstances in which payments of a specified kind are not included in
salary;
for the purposes of this Act or of a provision of this
Act.
9
Delegation by approving authority
(1) An approving authority may, in writing,
delegate to another person any of the approving authority’s powers or functions
under this Act (other than this section).
(2) A person (the first delegate)
to whom powers or functions are delegated under subsection (1) may, in
writing, delegate any of those powers or functions to another person (the second
delegate). However, if the first delegate is subject to directions in
relation to the exercise of a power or function delegated under this
subsection, the first delegate must give corresponding directions to the second
delegate.
(3) A power or function that is exercised or
performed by a person under a delegation under subsection (2) is taken,
for the purposes of this Act, to have been exercised or performed by the
approving authority.
(4) A person exercising powers or functions
under a delegation under this section must comply with any directions of the
person who delegated the power or function.
(5) In this
section:
approving authority
does not include the President of the Senate or the Speaker of the House of
Representatives.
9B
Delegations by Presiding Officers
(1) The President or the Speaker or the
President and the Speaker, as the case may be, may, either generally or as
otherwise provided by the instrument of delegation, by writing signed by him or
her or them, as the case may be, delegate to an officer or employee of the
Parliament, any of his or her or their powers, as the case may be, as an
approving authority under this Act or under the regulations, other than this power
of delegation.
(2) A power delegated under subsection (1),
when exercised by the delegate, shall, for the purposes of this Act, be deemed
to have been exercised by the President or the Speaker or the President and the
Speaker, as the case may be.
(3) A delegation under subsection (1)
does not prevent the exercise by the President or the Speaker or the President
and the Speaker, as the case may be, of the power to which the delegation
relates.
(4) The reference in subsection (1) to an
officer or employee of the Parliament is a reference to the following:
(a) the Clerk of the Senate;
(b) the Clerk of the House of
Representatives;
(c) the Secretary of another
Department of the Parliament established under section 54 of the Parliamentary
Service Act 1999;
(d) the Parliamentary Librarian
appointed under section 38C of that Act;
(e) a person engaged as an employee
under section 22 of that Act.
10
Meaning of employment in Government Service
(1) Subject to this section, a person shall,
for the purposes of this Act, be taken to be employed in Government Service if
the person is employed by the Commonwealth, whether he or she is so employed
under a law or under a contract of service or apprenticeship and whether he or
she is employed in a full‑time or in a part‑time capacity.
(2) Without limiting by implication the
generality of subsection (1), but subject to this section, a person:
(a) who constitutes, or is acting as
the person constituting, a public authority of the Commonwealth; or
(b) is,
or is acting as, a member of such an authority or is a deputy of such a member;
shall, for the purposes of this Act, be deemed to be
employed in Government Service, and his or her employment shall, for those
purposes, be deemed to be constituted by the performance of the duties of the
authority, his or her duties as such a member or person acting as such a member
or his or her duties as such a deputy, as the case may be.
(2A) For the purposes of this Act, the
Commissioner of the Australian Federal Police, a Deputy Commissioner of the
Australian Federal Police or an AFP employee (within the meaning of the Australian
Federal Police Act 1979) is taken to be employed in Government Service.
(3) Subject to subsection (4), this Act
does not apply to a person in respect of any period during which he or she held
or holds office as a Judge as defined by section 4 of the Judges’
Pensions Act 1968 or as the Solicitor‑General.
(4) If a person appointed as a Judge as
defined by section 4 of the Judges’ Pensions Act 1968 or as the Solicitor‑General
was, immediately before his or her appointment, a person to whom this Act, an
Act repealed by this Act or sections 73 and 74 of the Public Service
Act 1922 applied, the person may, within 3 months after his or her
appointment as a Judge or as the Solicitor‑General or, if he or she was
appointed as such a Judge or as Solicitor‑General before the commencement
of this Act, within 3 months after the commencement of this Act, elect, by
notice in writing to the Attorney‑General, that subsection (3) shall
not apply to him or her and this Act shall then be deemed to have applied, or
to apply, to and in relation to him or her in respect of any period during
which he or she held or holds the appointment as if the performance of the
duties of the appointment constituted employment in Government Service.
(6) Notwithstanding anything contained in subsection (1)
or (2), a person:
(a) who is employed by the
Commonwealth in a particular capacity and remunerated, in respect of his or her
employment in that capacity, by fees, allowances or commission;
(aa) appointed:
(i) to constitute, or act
as the person constituting, a public authority of the Commonwealth; or
(ii) to
be, or to act as, a member of such an authority or to be a deputy of such a
member;
who is remunerated, in respect
of his or her performance of the duties of that appointment, by fees,
allowances or commission;
(ab) who is the holder of a principal
executive office within the meaning of the Remuneration Tribunals Act 1973 (other
than a principal executive office prescribed for the purposes of this
paragraph);
(b) who is a member of the Defence
Force;
(c) who is employed by the
Commonwealth in an honorary capacity;
(d) who is employed in the Public
Service of a Territory, in the ACT teaching service or in the Teaching Service
of the Northern Territory;
(e) who is temporarily transferred to
the service of the Commonwealth from the service of a State or an authority of
a State, or whose services are temporarily loaned to the Commonwealth by a
State or an authority of a State;
(ea) who is temporarily transferred to
the service of the Commonwealth from the service of the Australian Capital
Territory or an authority of that Territory, or whose services are temporarily
loaned to the Commonwealth by that Territory or an authority of that Territory;
(f) who holds an office or is
employed under the Reserve Bank Act 1959 or the Commonwealth Banks
Act 1959; or
(g) who
is, after the commencement of this Act, appointed or engaged for employment
outside Australia only;
shall not be taken, by reason only of his or her being
such a person, to be employed in Government Service for the purposes of this
Act.
(7) This section applies in relation to
employment before the commencement of this Act in like manner as it applies in
relation to employment after the commencement of this Act.
11
Period of service
(1) Subject to this Act, the period of
service of an employee for the purposes of this Act is the period during which
he or she has been employed continuously in Government Service.
(2) Where, prior to his or her current period
of employment in Government Service, an employee was employed continuously in:
(a) any service of a State;
(b) any service of an authority of a
State;
(c) the Public Service of a Territory,
the ACT teaching service, or the Teaching Service of the Northern Territory;
(ca) any service of an authority of the
Northern Territory, not being employment at a time when the authority was a
public authority of the Commonwealth;
(cb) any service of an authority of the
Australian Capital Territory, not being employment at a time when the
authority was a public authority of the Commonwealth;
(d) any service of an authority
established or constituted by or under a law of an external Territory;
(e) the Public Service of the former Territory
of Nauru; or
(f) other
relevant service;
and the period for which he or she was so employed was
continuous with his or her current period of employment, his or her period of
service for the purposes of this Act includes, subject to this Act, the period
for which he or she was so employed.
(3) Where an employee has been employed:
(a) in 2 or more of the services
referred to in paragraphs (2)(a), (b), (c), (ca), (d), (e) and (f); or
(b) in
1 or more of those services and, at any time prior to his or her current period
of employment, in Government Service;
and the periods for which he or she was so employed are
continuous with one another and with his or her current period of employment,
the sum of these periods of employment shall, subject to this Act, be included
in his or her period of service for the purposes of this Act.
(4) The period
of service of an employee does not include any period during which:
(a) he or she was or is employed in a
qualifying service in an honorary capacity and was not or is not also employed
in a qualifying service in some other capacity, not being employment in respect
of which he or she was or is remunerated by fees, allowances or commission
only; or
(b) he or she was or is remunerated,
in respect of employment in a qualifying service, by fees, allowances or
commission only and was not or is not remunerated in respect of other
employment in a qualifying service in some other manner.
(5) For the
purposes of paragraph (2)(f), employment:
(a) as a member of the Defence Force;
(b) as a person holding an office, or
employed, under the Reserve Bank Act 1959 or the Commonwealth Banks
Act 1959; or
(c) outside
Australia as a person appointed or engaged by the Commonwealth after the
commencement of this Act for employment outside Australia only;
shall be deemed to be employment in other relevant
service.
12
Continuity of service
(1) Where a person is, or has been, absent,
without the approval of his or her employer, from his or her employment in a
qualifying service, otherwise than for a continuous period of more than 12 months,
the continuity of the employment of the person in that service shall be deemed
not to be, or to have been, broken by that absence, but the person shall be deemed,
for the purposes of this Act, not to be, or to have been, employed in that
service during the period of the absence.
(2) For the purposes of this Act, a person
shall be deemed not to break, or to have broken, the continuity of his or her
employment in a qualifying service by reason of his or her being or having
been:
(a) on leave of absence with pay or
part pay; or
(b) on
leave of absence without pay;
and, subject to subsections (3) and (4), the person
shall be deemed, for the purposes of this Act, to have been employed in that
service during the period of the absence.
(3) Subject to subsection (4), where a
person is or has been absent from his or her employment on leave of absence
without pay (not being leave of absence on account of illness or in respect of
a period of specified defence service referred to in subsection (10)) and
the period during which he or she is or was so absent would, but for this
subsection, be included in his or her period of service, the period during
which he or she is or was absent on that leave does not form part of his or her
period of service for the purposes of this Act:
(a) unless a chief executive officer,
or the person who granted the leave, determined (otherwise than under this
Act), either at the time of the grant or at a later time, that the period of
absence be included in the person’s period of service for the purpose of the
granting of long service leave; or
(b) unless the approving authority
determines under this Act that the period during which he or she is or was so
absent be included in his or her period of service for the purposes of this
Act.
(4) Where a person is or has been absent from
his or her employment in Government Service on leave granted for the purpose of
enabling him or her to occupy an executive office as provided in subsection (11):
(a) the period of the absence shall be
reckoned as part of his or her period of service for the purpose of determining
whether a provision of this Act that applies only to and in relation to
employees whose periods of service are at least 1 year or 10 years, as the case
may be, applies to and in relation to him or her; and
(b) the person shall be deemed not to
have been employed in that service during the period of absence for any other
purpose.
(5) Where a continuous period of employment
of a person in a qualifying service has commenced after, but not more than 12 months
after, the expiration of a continuous period of previous employment of the
person in a qualifying service, those periods of employment shall, for the
purposes of this Act, be deemed to be continuous with one another.
(6) For the purposes of subsection (5),
where a person, having ceased to be employed in a qualifying service, has
undertaken a course of full‑time training:
(a) under a scheme established by the
Commonwealth for the training of persons who have served in the Defence Force;
or
(b) under
a prescribed training scheme;
before resuming employment in a qualifying service, the
resumption of his or her employment in a qualifying service shall be deemed to
have occurred not more than 12 months after he or she ceased to be so employed
if the period between his or her ceasing to be so employed and the resumption
of that employment, less the period of his or her course of full‑time
training under that scheme, does not exceed 12 months.
(7) Where a continuous period of employment
of a person in a service, being Government Service or a service referred to in
paragraph 11(2)(c), (d), (e) or (f), has commenced after, but not immediately
after, the expiration of a continuous period of previous employment of the
person in such a service, those periods of employment shall, for the purposes
of this Act, be deemed to be continuous with one another if the approving
authority is satisfied that:
(a) the termination of his or her
employment at the expiration of that period of previous employment was due to
ill‑health; and
(b) the commencement of that first‑mentioned
period of employment occurred not more than 12 months after his or her health
became so restored as to enable him or her to perform duties of a kind that
were suitable to be performed by him or her having regard to the duties
performed by him or her immediately before the expiration of that period of
previous employment.
(8) Where:
(a) a continuous period of employment
of a person in a service, being a service referred to in paragraph 11(2)(a) or
(b), has commenced after, but not immediately after, the expiration of a
continuous period of previous employment of the person in a service, being
Government Service or a service referred to in paragraph 11(2)(c), (d), (e) or
(f); or
(b) a continuous period of employment
of a person in a qualifying service has commenced after, but not immediately
after, the expiration of a continuous period of previous employment of the
person in a service referred to in paragraph 11(2)(a) or (b);
those periods of employment referred to in paragraph (a)
or (b) of this subsection, whichever is applicable, shall, for the purposes of
this Act, be deemed to be continuous with one another if the approving
authority is satisfied that:
(c) the termination of his or her
employment at the expiration of that period of previous employment was due to
ill‑health;
(d) the person was, due to his or her
ill‑health, unemployed for a period immediately following the expiration
of that period of previous employment; and
(e) the commencement of the period of
employment first‑ mentioned in paragraph (a) or (b), whichever is
applicable, occurred not more than 12 months after the expiration of the period
of unemployment referred to in paragraph (d).
(9) A person shall not be deemed, for the
purposes of this Act, to have been employed in a qualifying service during a
period that would, but for subsection (5), (6), (7) or (8), have broken the
continuity of his or her service.
(10) For the purposes of subsection (3), a
person shall be taken to have been absent in respect of a period of specified
defence service if he or she was, during that period, serving:
(a) on continuous full‑time service
in the Reserves (within the meaning of the Defence Act 1903); or
(b) in a part of the Reserves for such
a period as was fixed by or in accordance with regulations in force under the Defence
Act 1903, the Naval Defence Act 1910 or the Air Force Act 1923,
as in force at the relevant time; or
(c) on national service.
(11) For the purposes of subsection (4),
an employee shall be taken to occupy an executive office if and only if:
(a) the employee is an officer or
employee, within the meaning of the Workplace Relations Act 1996, of an
organisation within the meaning of that Act; or
(b) he
or she occupies an office that is a prescribed office for the purposes of this
subsection;
and he or she is required to devote the whole of his or
her time to the duties of the office.
13
Modifications of sections 11 and 12 in relation to service in the Independent
State of Papua New Guinea
(1) In this section:
Australian Staffing Assistance Group means
the body established under that name by the Papua New Guinea (Staffing
Assistance) Act 1973.
Papua New Guinea has the same meaning as it
had in the Papua New Guinea Act 1949 as in force on 15 September 1975.
relevant service means:
(a) the service of the Independent
State of Papua New Guinea;
(b) the service of a body (not being
an incorporated company, society or association) established for a public
purpose by or under a law of the Independent State of Papua New Guinea; or
(c) the service of the Commonwealth in
respect of the Australian Staffing Assistance Group.
(2) This section applies in relation to a
person, being an employee, who was, immediately before 16 September 1975, employed in:
(a) the service of Papua New Guinea;
(b) the service of a body (not being
an incorporated company, society or association) established for a public
purpose by or under a law of Papua New Guinea; or
(c) the service of the Commonwealth as
a member of the Australian Staffing Assistance Group.
(3) Where, during a period (in this section
referred to as the period of his or her relevant employment) that
commenced on 16 September 1975:
(a) a person to whom this section
applies was employed continuously in a service referred to in paragraph (a)
or (b) of the definition of relevant service in subsection (1);
or
(b) a person to whom this section
applies was employed continuously in 2 or more of the services referred to in
that definition and the periods for which he or she was so employed were
continuous with one another;
the person:
(c) shall, for the purposes of
subsection 11(2), be deemed to have been continuously employed in other
relevant service during the period of his or her relevant employment; and
(d) shall, for the purposes of the
provisions of this Act other than sections 11, 12 and 14, be deemed to
have been continuously employed in a qualifying service during the period of
his or her relevant employment.
(4) For the purposes of subsection (3):
(a) a period of employment of a person
after 15 September 1975 in the service of the Commonwealth as a member of
the Australian Staffing Assistance Group shall not be included in his or her
period of relevant employment unless it was continuous with, and immediately
preceded, a period during which he or she was employed in a service referred to
in paragraph (a) or (b) of the definition of relevant service
in subsection (1); and
(b) a person shall be taken not to
have been employed in the service of a body, being the Commonwealth, the
Independent State of Papua New Guinea or a body referred to in paragraph (b)
of the definition of relevant service in subsection (1),
during a period:
(i) during which he or she
was employed by that body in an honorary capacity only; or
(ii) in respect of which he
or she was remunerated for his or her services to that body by fees, allowances
or commission only.
(5) For the purposes of subsection (3),
subsections 12(1), (2), (3) and (10) apply to and in relation to any employment
of a person to whom this section applies after 15 September 1975 in a relevant service as if it were employment in a qualifying service.
(6) Where a continuous period of employment
of a person to whom this section applies in a qualifying service has commenced
after, but not more than 12 months after, the expiration of the period of his
or her relevant employment, those periods of employment shall, for the purposes
of this Act, be deemed to be continuous with one another.
(7) For the purposes of subsection (6),
where a person to whom this section applies has undertaken a course of full‑time
training:
(a) under a scheme established by the
Commonwealth for the training of persons who have served in the Defence Force;
or
(b) under
a training scheme that is a prescribed training scheme for the purposes of
paragraph 12(6)(b);
after the expiration of the period of his or her relevant employment
and before he or she has become employed in a qualifying service, he or she
shall be deemed to have become employed in the qualifying service not more than
12 months after the expiration of the period of his or her relevant employment
if the period between the date of expiration of the period of his or her
relevant employment and the date on which he or she became employed in the
qualifying service, less the period of his or her course of full‑time
training under that scheme, does not exceed 12 months.
(8) Where a continuous period of employment
of a person to whom this section applies in a service of a kind referred to in
paragraph 11(2)(c), (d) or (f) has commenced after, but not immediately after,
the expiration of the period of his or her relevant employment, those periods
of employment shall, for the purposes of this Act, be deemed to be continuous
with one another if the approving authority is satisfied that:
(a) the termination of his or her
employment at the expiration of the period of his or her relevant employment
was due to his or her ill‑health; and
(b) the commencement of that first‑mentioned
period of employment occurred not more than 12 months after his or her health
became so restored as to enable him or her to perform duties of a kind that
were suitable to be performed by him or her having regard to the duties
performed by him or her immediately before the expiration of the period of his
or her relevant employment.
(9) Where a continuous period of employment
of a person to whom this section applies in a service of a kind referred to in
paragraph 11(2)(a) or (b) has commenced after, but not immediately after, the
termination of the period of his or her relevant employment, those periods of
employment shall, for the purposes of this Act, be deemed to be continuous with
one another if the approving authority is satisfied that:
(a) the termination of his or her
employment at the expiration of his or her period of relevant employment was
due to his or her ill‑health;
(b) he or she was, due to his or her
ill‑health, unemployed for a period immediately following the expiration
of the period of his or her relevant employment; and
(c) he or she became employed in that
first‑mentioned employment not more than 12 months after the expiration
of the period of unemployment referred to in paragraph (b).
(10) Where, by virtue of subsection (6),
(7), (8) or (9), 2 periods of employment of a person to whom this section
applies are to be deemed to be continuous with one another although they are separated
by another period, the person shall not, by virtue of that subsection, be
deemed to be employed in a qualifying service during that other period.
(11) A person employed in the service of the
Commonwealth as a member of the Australian Staffing Assistance Group who is not
so employed on transfer from the Australian Public Service under an arrangement
made under section 47D of the Public Service Act 1922 shall not be
taken, by reason only of being employed as a member of that Group, to be, or to
have been, employed in Government Service for the purposes of this Act while
employed as a member of that Group.
(12) Notwithstanding subsection (11),
where a person who is employed in the service of the Commonwealth otherwise
than as a member of the Australian Staffing Assistance Group has, at any time
prior to his or her current period of employment, been employed by the
Commonwealth as a member of that Group, the period or periods during which he
or she was employed as a member of that Group prior to his or her current
period of employment shall be treated as a period or periods of employment in
Government Service for the purposes of this Act.
14
Concurrent employment
(1) Where the period of service of an
employee includes a period of employment in a qualifying service that is wholly
or partly concurrent with a period of employment in another qualifying service,
subsections (3), (4) and (5) apply for the purpose of determining the
extent (if any) to which each of those periods is to count in ascertaining the
period of leave that may at any time be granted to the employee under this Act
or the payment that may at any time be made under this Act to or in respect of
the employee.
(2) In applying subsections (3), (4) and
(5) to and in relation to an employee:
(a) subsection (3) shall, if
applicable, be applied before subsection (4) or (5); and
(b) subsection (4) shall, if
applicable, be applied before subsection (5).
(3) Where, on the day on which leave is
granted to an employee under this Act or an employee ceases to be an employee,
the employee is also employed in a qualifying service other than Government
Service, so much of his or her current period of employment in that first‑mentioned
service as is or was concurrent with any of his or her employment in Government
Service does not count as employment in that first‑mentioned service.
(4) Where a person is or was employed in a
qualifying service in a full‑time capacity, any employment in a
qualifying service in a part‑time capacity that is or was concurrent with
that first‑mentioned employment does not count as employment in such a
service.
(5) Where a person who is or was employed in
a qualifying service in a part‑time capacity renders or rendered on a day
service for a period in accordance with the terms of his or her employment and
the person also renders or rendered service for a further period on that day in
accordance with the terms of other employment in a part‑time capacity in
a qualifying service, his or her period of employment on that day shall be taken
to be a period equal to the sum of those periods.
(6) This section applies in relation to the
employment of an employee to whom section 13 applies during the period
referred to in that section as the period of his or her relevant employment as
if:
(a) in a case where he or she was
employed in one service only during that period—his or her employment in that
service was employment in a qualifying service; or
(b) in a case where he or she was
employed in 2 or more services during that period—his or her employment in each
such service was employment in a qualifying service.
15
Award etc. in relation to long service leave for seamen
(1) This Act:
(a) does not affect the operation of
an award, order or agreement in force immediately before the commencement of
this Act under the Conciliation and Arbitration Act 1904 in relation to
long service leave for seamen included in a prescribed class of seamen;
(b) shall not be deemed to prevent the
making of an award (including an award having effect from a date before the
commencement of this Act) or an order, or the certification of an agreement,
under that Act in relation to long service leave for seamen included in a
prescribed class of seamen, or to affect the operation of such an award, order
or agreement; and
(c) does not prevent the making of an
award or workplace agreement, or the certification of an agreement, under the Workplace
Relations Act 1996 in relation to long service leave for maritime employees
included in a prescribed class of maritime employees, or affect the operation
of such an award or workplace agreement or agreement; and
(d) does not affect the operation of
an AWA within the meaning of Schedule 7A to the Workplace Relations Act 1996
in relation to long service leave for maritime employees included in a
prescribed class of maritime employees.
(2) Where an employee has, in accordance with
an award, order or agreement referred to in subsection (1), been granted
long service leave, or been paid in lieu of long service leave, in respect of a
period of employment, no part of that period of employment shall be included in
the period of service of the employee for the purposes of this Act.
(3) Where immediately before the commencement
of this Act, by virtue of subsection 6A(2) of the Commonwealth Employees’
Furlough Act 1943, a part of the period of employment of an employee was
not included in the period of service of the employee for the purposes of that
Act, that part of the period of employment of the employee shall not be
included in the period of service of the employee for the purposes of this Act.
(4) In this
section:
maritime employee has the same meaning as in
the Workplace Relations Act 1996.
seamen has the same meaning as in Division 2
of Part III of the Conciliation and Arbitration Act 1904.
16
Long service leave and payments in lieu of long service leave
(1) Subject to section 17, an employee
is not eligible to be granted long service leave unless his or her period of
service is at least 10 years.
(2) Where the period of service of an
employee is at least 10 years, the approving authority may, at any time, grant
to the employee:
(a) in the case of a category A
employee—long service leave on full salary for a period not exceeding his or
her long service leave credit at that time; or
(b) in the case of a category B
employee—long service leave on full salary in relation to his or her full‑time
service for a period not exceeding his or her long service leave credit related
to his or her full‑time service at that time or long service leave on
full salary in relation to his or her part‑time service for a period not
exceeding his or her long service leave credit related to his or her part‑time
service at that time or both.
(3) Where a period of long service leave may
at any time be granted to an employee under subsection (2), the approving
authority may, at the request of the employee, grant to him or her long service
leave on half salary for a period not exceeding twice that first‑mentioned
period.
(4) Subject to subsections (5) and (6),
where an employee whose period of service is at least 10 years ceases to be an
employee otherwise than by death, the approving authority shall authorize
payment to him or her of an amount equal to:
(a) in the case of a category A
employee—the amount of salary that would be payable to him or her for a period
of service equal to the period of his or her long service leave credit
immediately before he or she ceases to be an employee if salary were payable to
him or her in respect of that period at the rate that is, by virtue of section 21,
the rate applicable to him or her in relation to his or her long service leave
immediately before he or she ceases to be an employee; or
(b) in the case of a category B
employee—the sum of:
(i) the amount of salary
that would be payable to him or her for a period of service equal to the period
of his or her long service leave credit related to his or her full‑time
service immediately before he or she ceases to be an employee if salary were
payable to him or her in respect of that period at the rate that is, by virtue
of section 21, the rate applicable to him or her in relation to his or her
long service leave related to his or her full‑time service immediately
before he or she ceases to be an employee; and
(ii) the amount of salary
that would be payable to him or her for a period of service equal to the period
of his or her long service leave credit related to his or her part‑time
service immediately before he or she ceases to be an employee if salary were
payable to him or her in respect of that period at the rate that is, by virtue
of section 21, the rate applicable to him or her in relation to his or her
long service leave related to his or her part‑time service immediately
before he or she ceases to be an employee.
(5) Subsection (4) does not apply to an
employee who requests the approving authority in writing, before he or she
ceases to be an employee, not to authorize payment to him or her under that
subsection.
(6) Where an employee requests the approving
authority in writing before he or she ceases to be an employee to authorize a
payment to him or her, upon his or her ceasing to be an employee, of a
specified amount, being an amount less than the amount that would otherwise be
payable to him or her under subsection (4), that subsection does not
empower the approving authority to authorize a payment to him or her of an
amount greater than the amount so specified.
(7) Where an employee whose period of service
is at least 10 years dies, the approving authority may authorize payment to a
dependant of the employee of an amount equal to, or payments to any 2 or more
dependants of the employee of amounts aggregating, the amount that would have
been payable to the employee under subsection (4) if the employee had
ceased to be an employee otherwise than by death on the day on which the
employee died.
17
Extended leave or pay in lieu of leave for employees not entitled to long
service leave
(1) Where an employee whose period of service
is less than 10 years but not less than 1 year is to cease to be an employee:
(a) on or subsequent to his or her
attaining the minimum retiring age; or
(b) upon
his or her retrenchment;
the approving authority may grant to him or her long
service leave on full salary, to be taken so as to expire immediately before he
or she is to cease to be an employee, being:
(c) in the case of a category A
employee—long service leave for a period not exceeding his or her long service
leave credit immediately before he or she commences that leave; or
(d) in the case of a category B
employee—long service leave in relation to his or her full‑time service
for a period not exceeding his or her long service leave credit related to his
or her full‑time service, and long service leave in relation to his or
her part‑time service for a period not exceeding his or her long service
leave credit related to his or her part‑time service, immediately before
he or she commences whichever of those periods of leave he or she commences
first.
(2) Subject to subsections (3) and (4),
where an employee whose period of service is less than 10 years but not less
than 1 year:
(a) ceases to be an employee,
otherwise than by reason of his or her death, on, or subsequent to, his or her
attaining the minimum retiring age;
(b) ceases to be an employee by reason
of his or her retrenchment; or
(c) ceases
to be an employee and satisfies the approving authority that his or her so
ceasing is due to ill health of such a nature as to justify his or her so
ceasing;
the approving authority shall authorize payment to him or
her:
(d) in the case of a category A
employee—of an amount equal to the amount of salary that would be payable to
him or her for a period of service equal to the period of his or her long
service leave credit immediately before he or she ceases to be an employee if
salary were payable to him or her in respect of that period at the rate that
is, by virtue of section 21, the rate applicable to him or her in relation
to his or her long service leave immediately before he or she ceases to be an
employee; or
(e) in the case of a category B
employee—of an amount equal to the sum of:
(i) the amount of salary
that would be payable to him or her in respect of a period of service equal to
the period of his or her long service leave credit related to his or her full‑time
service immediately before he or she ceases to be an employee if salary were
payable to him or her in respect of that period at the rate that is, by virtue
of section 21, the rate applicable to him or her in relation to his or her
long service leave related to his or her full‑time service immediately
before he or she ceases to be an employee; and
(ii) the amount of salary
that would be payable to him or her for a period of service equal to the period
of his or her long service leave credit related to his or her part‑time
service immediately before he or she ceases to be an employee if salary were
payable to him or her in respect of that period at the rate that is, by virtue
of section 21, the rate applicable to him or her in relation to his or her
long service leave related to his or her part‑time service immediately
before he or she ceases to be an employee.
(3) Subsection (2) does not apply to an
employee who requests the approving authority in writing, before he or she
ceases to be an employee, not to authorize a payment to him or her under that
subsection.
(4) Where an employee requests the approving
authority in writing before he or she ceases to be an employee to authorize a
payment to him or her, upon his or her ceasing to be an employee, of a
specified amount, being an amount less than the amount that would otherwise be
payable to him or her under subsection (2), that subsection does not
empower the approving authority to authorize a payment to him or her of an amount
greater than the amount so specified.
(5) Where an employee whose period of service
is less than 10 years but not less than 1 year dies, the approving authority
may authorize payment to a dependant of the employee of an amount equal to, or
to 2 or more dependants of the employee of amounts aggregating, the amount that
would have been payable to the employee under subsection (2) if the
employee had, on the day on which the employee died, ceased to be an employee
otherwise than by reason of his or her death on, or subsequent to, his or her
attaining the minimum retiring age.
18
Calculation of long service leave credit
(1) For the
purposes of sections 16 and 17:
(a) the
long service leave credit of a category A employee on a day is the period equal
to the number of months ascertained in accordance with the formula:
where:
a is the number of
years comprised in the part of his or her period of service that accrued before
the prescribed day; and
b is the number of
months comprised in the period or the sum of the periods of long service leave
(if any) previously granted to him or her;
(b) the
long service leave credit related to the full‑time service of a category
B employee on a day is the period equal to the number of months ascertained in
accordance with the formula:
where:
c is the number of
years comprised in a period equal to the period, or the sum of the periods, of
his or her employment in a full‑time capacity included in the part of his
or her period of service that accrued before the prescribed day; and
d is the number of
months comprised in the period, or the sum of the periods, of long service
leave (if any) previously granted to him or her in relation to his or her full‑time
service; and
(c) the
long service leave credit related to the part‑time service of a category
B employee on a day is the period equal to the number of months ascertained in
accordance with the formula:
where:
e is the number of
years comprised in a period equal to the period, or the sum of the periods, of
his or her employment in a part‑time capacity included in the part of his
or her period of service that accrued before the prescribed day; and
f is the number of
months comprised in the period, or the sum of the periods, of long service
leave (if any) previously granted to him or her in relation to his or her part‑time
service.
(2) In this section, prescribed day
means:
(a) in relation to a long service
leave credit of an employee on the day on which he or she ceases to be an
employee—the day immediately following the last day of the last completed month
in the employee’s period of service ending on the day on which he or she ceases
to be an employee; or
(b) in relation to a long service
leave credit of an employee on any other day—the day immediately following the
last day of the last completed year of service included in the employee’s
period of service ending on that other day.
19
Application of section 18
(1) Subject to subsection (2), in the
application of section 18 to and in relation to an employee:
(a) a reference to a period of long
service leave granted to him or her is a reference to a period of long service
leave granted to him or her, whether before or after the commencement of this
Act, under this Act or otherwise in respect of a period of his or her
employment that is included in his or her period of service;
(b) a reference to a period of long
service leave granted to him or her in relation to his or her full‑time
service is a reference to a period of long service leave granted to him or her,
whether before or after the commencement of this Act, under this Act or
otherwise in respect of a period of employment in a full‑time capacity
that is included in his or her period of service; and
(c) a reference to a period of long
service leave granted to him or her in relation to his or her part‑time
service is a reference to a period of long service leave granted to him or her,
whether before or after the commencement of this Act, under this Act or
otherwise in respect of a period of employment in a part‑time capacity
that is included in his or her period of service.
(2) In the application of section 18, to
and in relation to an employee:
(a) if the employee has been granted
long service leave on half salary under this Act or otherwise in respect of a
period of his or her employment included in his or her period of service for
the purposes of this Act, the period of that leave shall be deemed to have been
a period equal to half that period;
(b) if the approving authority is
satisfied that long service leave that was granted to the employee otherwise
than under this Act, under any of the Acts repealed by this Act or under the Public
Service Act 1922 in respect of a period of employment included in his or
her period of service for the purposes of this Act was not granted to him or
her on full salary or half salary having regard to the terms and conditions of
the employment, the period of that long service leave shall be deemed to have
been such a period as is determined by the approving authority to be the period
of long service leave that the employee would have been granted in respect of
that employment if he or she had been granted long service leave on full
salary;
(c) if the employee has been paid an
amount under this Act, under any of the Acts repealed by this Act or under
section 54C, 73, 74, 75A, 81K or 81V of the Public Service Act 1922 in
respect of a period of employment in a full‑time capacity, or in respect
of a period of employment in a part‑time capacity, that is included in
his or her period of service for the purposes of this Act, the employee shall
be deemed to have been granted, on the day on which that payment was made to
him or her, a period of long service leave in relation to his or her full‑time
service or to his or her part‑time service, as the case may be, equal to
the period of long service leave on full salary in relation to which that
payment was made to him or her; and
(d) if the employee has, in
circumstances that are similar to the circumstances in which an amount is
payable to an employee under section 16 or 17, been paid an amount
otherwise than under this Act or a section of the Public Service Act 1922 referred
to in paragraph (c) in respect of a period of employment in a full‑time
capacity, or in respect of a period of employment in a part‑time
capacity, that is included in his or her period of service for the purposes of
this Act, the employee shall be deemed to have been granted, on the day on
which that payment was made to him or her, such a period of long service leave
in relation to his or her full‑time service or in relation to his or her
part‑time service, as the case may be, as is determined by the approving
authority to be equal to the period of his or her employment in respect of
which that payment represented full salary.
20
Rate of salary while absent on long service leave
(1) Where a period of long service leave is
granted under section 16 or 17 to a category A employee on full salary,
salary is payable to the employee in respect of any part of the leave:
(a) if the employee has been employed
in a full‑time capacity throughout his or her period of service—at the
rate that is his or her current rate of salary in respect of that part of the
leave;
(b) if the employee has been employed
in a part‑time capacity throughout his or her period of service and there
has been no change during that period in the number of hours per week for which
the employee has, by the terms of his or her employment, been required to
render service—at the rate per week at which salary would be payable to him or
her in respect of that part of the leave if he or she were not absent on long
service leave but were continuing to render service for that number of hours
per week in the capacity in which he or she was employed on the relevant day;
or
(c) if the employee has been employed
in a part‑time capacity throughout his or her period of service but there
has been a change during that period in the number of hours per week for which
he or she was required by the terms of his or her employment to render
service—at the rate per week ascertained by multiplying the relevant rate per
hour in respect of that part of the leave by a number equal to the prescribed
average number of hours of his or her service.
(2) Where a
period of long service leave on full salary is granted under section 16 or
17 to a category B employee who is employed in a full‑time capacity on
the relevant day:
(a) salary is payable to the employee
in respect of any part of that leave that is granted to him or her in relation
to his or her full‑time service—at the rate that is his or her current
rate of salary in respect of that part of the leave; and
(b) salary is payable to him or her in
respect of any part of that leave that is granted to him or her in relation to his
or her part‑time service—at a weekly rate, being the lesser of:
(i) the rate that is his
or her current rate of salary per week in respect of that part of the leave;
and
(ii) the
rate per week ascertained in accordance with the formula:
where:
a is the
rate that is his or her current rate of salary per week in respect of that part
of the leave;
b is the
prescribed average number of hours of his or her service; and
c is the
number of hours of service that he or she was, on the relevant day, required by
the terms of his or her employment to render during a week.
(3) Where a period of long service leave on
full salary is granted under section 16 or 17 to a category B employee who
is employed in a part‑time capacity on the relevant day:
(a) salary is payable to him or her in
respect of any part of the leave that is granted to him or her in relation to
his or her full‑time service—at the rate at which salary would be payable
to him or her in respect of that part of the leave if he or she were not on
long service leave but were rendering full‑time service in the capacity
in which he or she was employed on the relevant day; and
(b) salary is payable to him or her in
respect of any part of the leave that is granted in relation to his or her part‑time
service—at the rate per week ascertained by multiplying his or her relevant
rate per hour in respect of that part of the leave by a number equal to the
prescribed average number of hours of his or her service.
(4) In this section:
current rate of salary, in relation to a part
of a period of long service leave that is granted to an employee, means the
rate at which salary would be payable to him or her in respect of that part of
the leave if he or she were not absent on long service leave but were continuing
to be employed in the capacity in which he or she was employed on the relevant
day.
prescribed average
number of hours means:
(a) in relation to a category A
employee who is granted a period of long service leave:
(i) his or her average
number of hours of employment per week during the relevant period; or
(ii) if the employee
satisfies the approving authority that his or her average number of hours of
employment per week during the relevant period is less than his or her average
number of hours of employment per week during his or her period of service—that
last‑mentioned average number of hours; and
(b) in relation to a category B
employee who is granted a period of long service leave:
(i) his or her average
number of hours of employment per week during the relevant period; or
(ii) if the employee
satisfies the approving authority that his or her average number of hours of
employment per week during the relevant period is less than his or her average
number of hours of employment per week throughout his or her period or periods
of employment in a part‑time capacity included in his or her period of
service—that last‑mentioned average number of hours.
relevant day, in relation to an employee who
has been granted long service leave, means the day immediately preceding the
day on which that leave commences.
relevant period means:
(a) in relation to a category A
employee who has been granted a period of long service leave, the 12 months of
his or her period of service ending on the day before the day on which the
leave commences; and
(b) in relation to a category B
employee who has been granted a period of long service leave:
(i) the period of, or the
periods aggregating, 12 months during which he or she was last employed in a
part‑time capacity before the day on which the leave commences; or
(ii) if he or she has not
been employed in a part‑time capacity for 12 months—the period or periods
during which he or she has been employed in a part‑time capacity.
relevant rate per hour, in relation to a part
of a period of long service leave that has been granted to an employee who was
employed in a part‑time capacity on the relevant day, means the rate per
hour at which salary would be payable to him or her in respect of that part of
the leave if he or she were not absent on long service leave but were
continuing to render part‑time service in the capacity in which he or she
was employed on the relevant day.
21
Rate of salary in relation to pay in lieu of leave
(1) For the purposes of sections 16 and
17, where an employee ceases to be an employee:
(a) the rate applicable to him or her
in relation to his or her long service leave;
(b) the rate applicable to him or her
in relation to his or her long service leave related to his or her full‑time
service; or
(c) the
rate applicable to him or her in relation to his or her long service leave
related to his or her part‑time service;
immediately before he or she ceases to be an employee is
the rate at which full salary would be payable to him or her in respect of his
or her employment on the day on which he or she ceases to be an employee (in
this section referred to as the terminating day) if:
(d) he or she were absent from duty on
the terminating day in accordance with a period of long service leave, long
service leave related to his or her full‑time service or long service
leave related to his or her part‑time service, as the case requires, that
had been granted to him or her on full salary to commence on the terminating
day; and
(e) on the day immediately before the
terminating day he or she had completed the period of service that he or she
completes on the terminating day.
(2) Where an employee is not employed in the
same capacity on the terminating day and on the day immediately before the
terminating day, subsection (1) applies in relation to him or her as if he
or she had been employed on the day immediately before the terminating day in
the capacity in which he or she is employed on the terminating day.
22
Long service leave benefits not to be granted under other laws
(1) Where a person who holds an office or
appointment under a relevant law, or is employed under a relevant law, is, for
the purposes of this Act, employed in Government Service by virtue of holding
that office or appointment or of being so employed, then, unless otherwise
expressly provided by a relevant law, nothing in a relevant law shall be taken
to authorize the provision of long service leave benefits for or in relation to
the person under a relevant law or under terms and conditions of employment
determined under a relevant law.
(2) In subsection (1):
(a) relevant law means a
law of the Commonwealth or of an internal Territory that is in force on the day
on which this Act receives the Royal Assent or that comes into force on or
after that day; and
(b) long service leave benefits
means any benefits of the kind provided under section 16 and 17.
23
Additional provisions relating to death of an employee
(1) Where the approving authority, after
consideration of all the circumstances, directs that, for the purposes of this
Act, the death of an employee whose period of service is at least 1 year is to
be presumed to have occurred on a specified date, this Act applies in relation
to the employee as if he or she had died on that date.
(2) Where there are 2 or more dependants of a
deceased employee, the approving authority shall, in exercising the powers
conferred on it by subsection 16(7) or 17(5), have regard to the respective
losses suffered by those dependants as a result of the loss of earnings of the
employee.
(3) Where an employee dies:
(a) the approving authority may, if it
has not authorized a payment or payments under subsection 16(7) or 17(5),
whichever is applicable, authorize payment of an amount equal to the amount
referred to in whichever of those subsections is applicable to the legal
personal representative of the employee; and
(b) the approving authority shall, if
it has not authorized a payment to a dependant, or payments to dependants, of
the employee or a payment to the legal personal representative of the employee,
of an amount equal to the amount referred to in subsection 16(7) or 17(5),
whichever is applicable, within 12 months after the death of the employee or,
if the approving authority gave a direction in relation to the employee under subsection (1),
the date on which it gave that direction, authorize payment of that amount to
the legal personal representative of the employee.
(4) Where an amount is payable under this Act
to a person, being an employee or a dependant of an employee, who is under a
legal disability, the approving authority may, instead of authorizing payment
of the amount to the person, authorize payment of the amount to such trustee or
trustees as the approving authority appoints to be held by that trustee or
those trustees upon such trusts for the benefit of the person as the approving
authority directs and, when the amount is paid to that trustee or to those
trustees accordingly, the amount shall, for the purposes of this Act, other
than this section, be deemed to have been paid to the person.
(5) Where, upon the death of an employee, the
amount payable under this Act in relation to his or her death would be bona
vacantia, this Act does not authorize that amount to be paid in relation to
the employee and, if the amount is payable by a public authority of the
Commonwealth, the authority shall pay the amount to the Commonwealth.
24
Transitional provision
(1) Where an employee ceased to be an
employee on or after 1 January 1973 and before the commencement of this
Act and the amount that the approving authority could have authorized to be
paid to or in relation to him or her under this Act upon his or her ceasing to
be such an employee if this Act and the Public Service Amendment Act 1976 had
come into operation on that first‑mentioned date exceeds that amount (if
any) or the sum of the amounts (if any) that have been authorized or are
authorized to be paid to or in relation to him or her under whichever of the
relevant provisions were applicable to the employee:
(a) if the employee ceased to be an
employee by reason of his or her death:
(i) the approving
authority may authorize payment to a dependant of the employee of an amount
equal to, or payment to 2 or more dependants of the employee of amounts aggregating,
the excess;
(ii) if the approving
authority has not authorized a payment to a dependant, or payments to
dependants, under subparagraph (paragraph (i), the approving
authority may authorize payment of an amount equal to the excess to the legal personal
representative of the employee; and
(iii) if the approving
authority has not authorized any payment under subparagraph (paragraph (i)
or (ii) within 12 months after the commencement of this Act or, if it has been
directed that the death of the employee is to be presumed to have occurred,
within 12 months after the date on which that direction was given, the
approving authority shall authorize payment of an amount equal to the excess to
the legal personal representative of the employee;
(b) if the employee has died after
ceasing to be an employee—the approving authority shall authorize payment of an
amount equal to the excess to the legal personal representative of the
employee; or
(c) in any other case—the approving
authority shall authorize payment of an amount equal to the excess to the
employee.
(2) Where there are 2 or more dependants of a
deceased employee in relation to whom paragraph (1)(a) applies, the
approving authority shall, in exercising the power conferred on it by subparagraph (paragraph (1)(a)(i),
have regard to the respective losses suffered by those dependants as a result
of the loss of earnings of the employee.
(3) In subsection (1), a reference to
the relevant provisions is a reference to any of the following provisions:
(a) sections 7 and 8 of the Commonwealth
Employees’ Furlough Act 1943;
(b) sections 54C, 73, 74, 75A,
81K and 81V of the Public Service Act 1922; and
(c) section 14 of the Statistics
(Arrangements with States) Act 1956.
24A
Commonwealth Teaching Service—transitional
(1) In this section, unless the contrary
intention appears:
long service leave includes long leave,
furlough, extended leave and any other leave in the nature of long service
leave (however described).
member of the Service has the same meaning as
in the Commonwealth Teaching Service Act 1972 as in force on 1 November 1988.
prescribed teacher means:
(a) a member of the Service who became
such a member after 13 September 1973 and before 1 January 1974 and was, immediately before becoming such a member:
(i) employed in the
teaching service of New South Wales and engaged in teaching duties in a
Commonwealth school in the Australian Capital Territory; or
(ii) employed in the
teaching service of South Australia and engaged in teaching duties in a Commonwealth
school in the Northern Territory; or
(b) a member of the Service who became
such a member after 31 December 1976 and before 1 April 1977 and was,
immediately before becoming such a member, employed in the teaching service of
New South Wales and engaged in full‑time teaching duties in the
Australian Capital Territory in connection with the provision of technical and
further education, that is to say, education provided by way of a course of
instruction or training:
(i) that is, or that is
preparatory to, a course of a kind relevant to a trade, technical or other
skilled occupation; or
(ii) that otherwise meets
the educational needs of persons who are not enrolled in a full‑time
course of education at a primary school, a secondary school or a secondary
college.
relevant date
means:
(a) in relation to a prescribed
teacher referred to in paragraph (a) of the definition of prescribed
teacher—1 January 1974; and
(b) in relation to a prescribed
teacher referred to in paragraph (b) of that definition—1 April 1977.
relevant State means, in relation to a
prescribed teacher, the State in the teaching service of which he or she was
employed immediately before becoming a member of the Service.
Service means the Commonwealth Teaching
Service established by the Commonwealth Teaching Service Act 1972.
(2) Where, at any time, in the application to
or in relation to a prescribed teacher of this Act, the period of long service
leave to which he or she would, but for this section, be entitled, or the
amount of pay in lieu of long service leave that would, but for this section,
be payable to or in relation to him or her, under this Act is less than the
period of leave to which he or she would be entitled, or the amount that would
be payable to or in relation to him or her, as the case may be, if the scale of
accrual of long service leave that would have been applicable in relation to
him or her under the law of the relevant State as in force on the relevant date
if he or she had continued to be employed in the teaching service of the
relevant State were substituted for the scale of accrual of long service leave
applicable to him or her at that time under this Act, the period of long
service leave to which he or she is entitled, or the amount of pay in lieu of
long service leave payable to or in relation to him or her, as the case may be,
shall be determined in accordance with the first‑mentioned scale of
accrual.
(3) This section ceases to apply on the
commencement of the amendment of the definition of public authority of
the Commonwealth in subsection 4(1) of this Act by the A.C.T. Self‑Government
(Consequential Provisions) Act 1988.
25
Amendment of the Meat Inspection Arrangements Act 1964
Note:
The amendment made by this section is incorporated in the
compilation on ComLaw.
Meat
Inspection Arrangements Act 1964
For access to the wording of the amendment made by this section, see Act No. 192, 1976.
25A
Schedule 1
The Act that is specified in Schedule 1
is amended as set out in the applicable items in the Schedule.
26
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters which are
required or permitted to be prescribed, or which are necessary or convenient to
be prescribed, for carrying out or giving effect to this Act.