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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-10-13 Daily Xml
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Bills

Long Service Leave (Calculation of Average Weekly Earnings) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (17:58): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Long Service Leave (Calculation of Average Weekly Earnings) Amendment Bill 2015 seeks to amend subsection 3(4)(a) and subsection 3(4)(b) of the Long Service Leave Act 1987. Subsection 3(4)(a) disregards whole weeks of unpaid leave from the calculation of long service leave payments for casual or part-time workers. Subsection 3(4)(b) stipulates that for the purposes of performing this calculation, the relevant periods when the worker was not at work due to work injury and in receipt of weekly payments will also be disregarded.

The intention of the amendments to subsection 3(4)(a) and subsection 3(4)(b) is to clarify that in addition to the unpaid leave exclusions, any week that a casual or part-time worker is absent from work for a work injury, is also excluded in the same manner.

The need for this clarity arises from a recent significant decision in the case of Flinders Ports Pty Ltd v Woolford, which was heard by the Full Court of the Supreme Court of South Australia.

In this matter, a worker’s long service leave payment was reduced to almost nothing as a result of the Full Court of the Supreme Court’s interpretation of ‘unpaid leave’ for the purpose of calculating a long service leave entitlement. The Full Court of the Supreme Court held that ‘unpaid leave’ does not include the absence of an employee from work due to a compensable injury.

The Bill aims to remedy the unsatisfactory consequences of the Flinders Ports decision for casual and part-time employees under the Long Service Leave Act 1987. If a casual or part-time employee is entitled to long service leave payments, they should not end up with a zero or minimal payment because they were injured while performing their work.

Further, a compelling argument for the Bill is that casual and part-time employees, as employees eligible for long service leave under the Long Service Leave Act, should have their long service leave payments protected in the same manner as full-time employees. Currently full-time workers who are absent from work because of a work-related injury do not have their payment in lieu of long service leave upon termination reduced under the Long Service Leave Act, as the averaging provision of subsection 3(2) does not apply to them.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Long Service Leave Act 1987

4—Amendment of section 3—Interpretation

This clause amends section 3 to ensure that any week in which a worker is absent from work on account of a work injury (within the meaning of the Return to Work Act 2014) for which the worker received weekly payments under that Act or, before 1 July 2015, under the Workers Rehabilitation and Compensation Act 1986 is excluded from the calculation of averaging weekly earnings under subsection (2)(a) or the number of hours worked per week under subsection (2)(b).

Schedule 1—Transitional provision

1—Transitional provision

This clause inserts a transitional provision to provide that the amendment effected to the Long Service Leave Act 1987 by this Act applies in relation to any long service leave taken (or any payment made in lieu of long service leave) on or after the commencement of this Act (including so as to apply in relation to absences of a worker occurring before the commencement of this Act).

Debate adjourned on motion of Hon. D.W. Ridgway.

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