LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976
LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - TABLE OF PROVISIONS
LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192 of 1976 TABLE OF PROVISIONS Section 1. Short title 2. Commencement 3. Repeal and savings 4. Interpretation 5. Application of the Act 6. Meaning of authority of a State 7. Regulations with respect to previous service with prescribed authorities, &c. 8. Meaning of salary 9. Delegation by Public Service Board 10. Meaning of employment in Government Service 11. Period of service 12. Continuity of service 13. Modifications of sections 11 and 12 in relation to service in the Independent State of Papua New Guinea 14. Concurrent employment 15. Award, &c., in relation to long service leave for seamen 16. Long service leave and payments in lieu of long service leave 17. Extended leave or pay in lieu of leave for employees not entitled to long service leave 18. Calculation of long service leave credit 19. Application of section 18 20. Rate of salary while absent on long service leave 21. Rate of salary in relation to pay in lieu of leave 22. Long service leave benefits not to be granted under other laws 23. Additional provisions relating to death of an employee 24. Transitional provision 25. Consequential amendment 26. Regulations LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 1. Short title.
LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192 of 1976 An Act to make Provision for Long Service Leave in respect of Employees of the Commonwealth and certain other Persons, and for other purposes. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:- 1. This Act may be cited as the Long Service Leave (Commonwealth Employees) Act 1976.*1* LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 2. Commencement.
2. This Act shall come into operation on the day on which it receives the Royal Assent.*1* LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 3. Repeal and savings.
3. (1) The following Acts are repealed:- Commonwealth Employees' Furlough Act 1943 Commonwealth Employees' Furlough Act 1944 Commonwealth Employees' Furlough Act 1951 Commonwealth Employees'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 sub-section (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 sub-section (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
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(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 sub-section (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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 4. Interpretation.
4. (1) In this Act, unless the contrary intention appears- ''approving authority'' means- (a) in relation to a person who is, or was at the time of his 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 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 ceasing to be an employee whether by reason of death or otherwise, employed in the Department of the Parliamentary Library, the Department of the Parliamentary Reporting Staff or the Joint House Department-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 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 sub-section (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 relation to any other person-the Public Service Board; ''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; ''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; ''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); ''officer'' has the same meaning as in the Public Service Act 1922; ''public authority of the Commonwealth'' means an authority established or constituted by or under a law of the Commonwealth or of an internal Territory; ''retrenchment'', in relation to an employee, means the compulsory termination of the service of the employee for the reason that- (a) his service or position is not necessary; (b) the work for which he was engaged is finished; or (c) a reduction in the number of employees is necessary because the quantity of work has diminished. (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 sub-section 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
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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 is performing his 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; or (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 sub-section applies. (7) For the purposes of this Act- (a) a member of the Police Force of the Australian Capital Territory shall be deemed to be employed in Government Service; and (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 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 sub-section (1) applies. (9) For the purposes of this Act, the minimum retiring age of an employee is- (a) in the case of an employee who is an officer- (i) subject to sub-paragraph (ii)-the age upon the attainment of which the officer is, under section 85 of the Public Service Act 1922, required to retire from the Australian Public Service; or (ii) if, under that section, he may retire from the Australian Public Service by reason only of his having attained an age that is less than the age upon the attainment of which he is so required to retire from the Australian Public Service-that lesser age; (b) in the case of an employee who is employed under the Public Service Act 1922 otherwise than as an officer- (i) subject to sub-paragraph (ii)-the age of 60 years; or (ii) if the Public Service Board has, for the purposes of this Act, fixed an age less than 60 years of age as the minimum retiring age in respect of a class of employees in which the employee is included-the age so fixed; (c) in the case of an employee who is employed by a public authority of the Commonwealth otherwise than in a permanent capacity- (i) subject to sub-paragraph (ii)-the age of 60 years; or (ii) if the public authority has, for the purposes of this Act, fixed an age less than 60 years of age as the minimum retiring age in respect of a class of employees in which the employee is included-the age so fixed; or (d) in the case of any other employee- (i) if, under the terms and conditions of his employment, an age that is less than 60 years of age is fixed as the age upon the attainment of which he is required to retire from his employment and no other age is fixed as the age upon the attainment of which he may retire from his employment-the age fixed as the age upon the attainment of which he is required to retire from his employment; (ii) if, under the terms and conditions of his employment, an age that
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is less than 60 years of age is fixed as the age upon the attainment of which he may retire from his employment and the age so fixed is less than the age fixed as the age upon the attainment of which he is required to retire from his employment or no age is fixed as the age upon the attainment of which he is required to retire from his employment-the age fixed as the age upon the attainment of which he may retire from his employment; or (iii) if sub-paragraph (i) or (ii) does not apply in relation to the employee-the age of 60 years. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 5. Application of the Act.
5. 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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 6. Meaning of authority of a State.
6. 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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 7. Regulations with respect to previous service with prescribed authorities, &c.
7. (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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 8. Meaning of salary.
8. (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 sub-section (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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 9. Delegation by Public Service Board.
9. (1) The Public Service Board may, either generally or as otherwise provided by the instrument of delegation, by instrument under the hands of the members, or of a majority of the members, of the Board, delegate to- (a) a member of the Board; (b) an officer or employee of the Australian Public Service; or (c) a public authority of the Commonwealth, a member of such an authority or a person employed by such an authority, any of its powers under this Act or under the regulations, other than this power of delegation.
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(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Public Service Board. (3) A delegation under this section does not prevent the exercise of a power by the Public Service Board. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 10. Meaning of employment in Government Service.
10. (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 is so employed under a law or under a contract of service or apprenticeship and whether he is employed in a full-time or in a part-time capacity. (2) Without limiting by implication the generality of sub-section (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 employment shall, for those purposes, be deemed to be constituted by the performance of the duties of the authority, his duties as such a member or person acting as such a member or his duties as such a deputy, as the case may be. (3) Subject to sub-section (4), this Act does not apply to a person in respect of any period during which he 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 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 appointment as a Judge or as the Solicitor-General or, if he 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 sub-section (3) shall not apply to him and this Act shall then be deemed to have applied, or to apply, to and in relation to him in respect of any period during which he held or holds the appointment as if the performance of the duties of the appointment constituted employment in Government Service. (5) This Act does not apply to a person who was employed immediately before 7 October 1944 under the Commonwealth Railways Act 1917-1936 if the provisions of a by-law in force under the Australian National Railways Act 1917, being provisions for the granting of long service leave or pay in lieu of long service leave, are applicable to him. (6) A person- (a) who is remunerated by the Commonwealth by fees, allowances or commission; (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; (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; (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 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. LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976 No. 192, 1976 - SECT. 11. Period of service.
11. (1) Subject to this Act, the period of service of an employee for the purposes of this Act is the period during which he has been employed continuously in Government Service. (2) Where, prior to his current period of employment in Government Service, an employee was employed continuously in-
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(a) any service of a State; (b) any service of an authority of a State; (c) the Public Service of a Territory; (d) any service of an authority established or constituted by or under a law of an external Territory;