Local Government (Long Service Leave) Regulations 2002

i Local Government (Long Service Leave) Regulations 2002 S.R. No. 10/2002 TABLE OF PROVISIONS Regulation Page PART 1—PRELIMINARY 1 1. Objective 1 2. Authorising provision 1 3. Commencement 1 PART 2—ENTITLEMENT TO LONG SERVICE LEAVE 2 4. General entitlement 2 5. Entitlement on resignation or termination 2 6. Entitlement on death 2 7. Entitlement on retirement, termination or resignation 3 8. What constitutes a member's period of service? 4 9. Agreements between Council and authority or person 6 10. Entitlement if a member of council staff converts from full-time to part-time service or vice versa 7 11. Public holidays 7 PART 3—MANNER IN WHICH LONG SERVICE LEAVE ENTITLEMENT MAY BE TAKEN 8 12. When leave can be taken 8 13. Double leave at half pay 8 14. Dispute as to time for taking leave 8 15. No other employment 8 PART 4—GENERAL 9 16. Exchange of information between Councils 9 17. Provisions extend to joint bodies 9 18. Long Service Leave Account 9 19. Transfer of payments in respect of entitlements 11 -- 1 of 16 -- Regulation Page ii 20. Part-time service before 1 January 1986 12 21. Saving of earlier entitlements 13 ═══════════════ ENDNOTES 14 -- 2 of 16 -- 1 STATUTORY RULES 2002 S.R. No. 10/2002 Local Government Act 1989 Local Government (Long Service Leave) Regulations 2002 The Lieutenant-Governor as the Governor's Deputy makes the following Regulations: Dated: 19 February 2002 Responsible Minister: BOB CAMERON Minister for Local Government HELEN DOYE Clerk of the Executive Council PART 1—PRELIMINARY 1. Objective The objective of these Regulations is to provide for long service leave for members of Council staff. 2. Authorising provision These Regulations are made under section 243 of the Local Government Act 1989. 3. Commencement These Regulations come into operation on 19 February 2002. __________________ -- 3 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 2 PART 2—ENTITLEMENT TO LONG SERVICE LEAVE 4. General entitlement (1) Subject to the provisions of these Regulations, every member of Council staff who has been employed by a Council for a period of 10 years is entitled to 3 months long service leave with pay and one and a half months long service leave with pay in respect of each additional period of 5 years completed service. (2) The long service leave entitlement for part-time members of Council staff is to be calculated on a pro rata basis. 5. Entitlement on resignation or termination (1) A member of Council staff who has completed 10 or more years of service and who resigns or has his or her service terminated may, in writing, request the Council for pay instead of long service leave and the Council must pay the member one- tenth of 3 months pay for each completed year of service. (2) The Council must not pay the member for any period of service in respect of which the member has already taken long service leave or pay instead of leave. 6. Entitlement on death (1) A member of Council staff who has completed 5 or more years of service and who dies is entitled to be granted pay instead of long service leave at the rate of one-tenth of 3 months pay for each completed year of service in respect of which the member had not already taken long service leave or pay instead of leave. r. 4 -- 4 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 3 (2) If a member dies before or while taking long service leave, or before being paid in full for long service leave, the Council must pay to the legal personal representative of the member— (a) the pay which the member elected to take; and (b) pay instead of any long service leave to which the member was entitled and which he or she had not taken, or for which he or she had not been paid. 7. Entitlement on retirement, termination or resignation (1) A member of Council staff who has completed 5 or more years of service and who— (a) retires because of age or ill-health; or (b) has his or her services terminated for any reason other than serious or wilful misconduct or poor performance; or (c) resigns— (i) on account of, or in anticipation of, marriage; or (ii) on account of impending parenthood; or (iii) while on maternity or paternity leave— is entitled to be granted long service leave at the rate of one-tenth of 3 months leave for each completed year of service. (2) A member of Council staff who ceases employment in any of the circumstances set out under sub-regulation (1) may, by notice in writing to the Council, elect to take pay instead of all or any part of the long service leave to which he or she is entitled and the Council must pay him or her accordingly. r. 7 -- 5 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 4 (3) For the purposes of these Regulations a Council staff member retires— (a) because of age, if on or after attaining the age of 55 years he or she ceases to be a member of Council staff; (b) on account of ill-health, if the Council is satisfied that he or she ceased to be a member of the Council staff because of ill- health that is likely to be permanent. 8. What constitutes a member's period of service? (1) The period of service of a member of Council staff for the purposes of these Regulations is to be calculated in accordance with this regulation. (2) The period of service is to include any period during which the member was absent from work due to any of the following causes— (a) the taking of long service leave; or (b) the taking of any paid leave including paid sick leave; or (c) action by the Council with the intention of avoiding obligations in respect of long service leave or annual recreation leave; or (d) service in the defence forces of the Commonwealth (other than service as a member of the permanent defence forces after he or she became a member of Council staff); or (e) the taking of unpaid sick leave where the absence from work was not more than 6 months (total) in the initial 10 year entitlement period and 3 months (total) in each subsequent entitlement period; or r. 8 -- 6 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 5 (f) an injury for which weekly payments or compensation are payable under the Workers Compensation Act 1958, the Accident Compensation Act 1985 or the Accident Compensation (WorkCover Insurance) Act 1993. (3) Any period during which the member was absent from work due to any of the following causes is not to be included in the period of service— (a) an industrial dispute; or (b) resignation or dismissal; or (c) being stood down when no work was available for him or her; or (d) the taking of unpaid maternity or paternity leave. (4) The period of service is to include— (a) any period of prior service by the member with any local government authority under the law of Victoria after 1 March 1975; (b) any period of service by the member with any local government authority under the law of Victoria prior to 1 March 1975 where that local government authority was the member's employer on 1 March 1975. (5) If 2 or more Councils are amalgamated and any member of Council staff of the previously existing Councils is employed by the new Council, the period of service of the member with the previously existing Councils is to be taken as service with the new Council. (6) The period of service is not to include any prior period of employment with the Council or another local government authority if the member resigned or was dismissed from that employment r. 8 -- 7 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 6 and did not return to work for the Council or local government authority within 12 months. (7) The period of service is to include any prior period of service by the member with— (a) any local government authority under the law of the Commonwealth or of any State; or (b) any office under the Crown in the right of the Commonwealth or any State; or (c) any public authority of the Commonwealth or any State— to the extent provided for in any agreement made under regulation 9 between the Council and the local government authority, public authority or any person responsible for the office referred to in paragraph (b). (8) The Council may include, to the extent determined by the Council in each particular case, the whole or any portion of a period of service when the member was absent from duty with the prior or subsequent approval of the Council. (9) Periods of service are to be aggregated if they are not continuous. 9. Agreements between Council and authority or person A Council may enter into an agreement with a local government authority, public authority or any person responsible for an office referred to in regulation 8(7)(b) providing for— (a) payments by the Council to the authority or the person in respect of long service leave for people transferring from employment with the Council to employment with the authority or office; r. 9 -- 8 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 7 (b) payments to the Council by the authority or person in respect of long service leave for people transferring from employment with the authority or office to employment with the Council. 10. Entitlement if a member of council staff converts from full-time to part-time service or vice versa If a member of Council staff converts from full- time to part-time service or from part-time to full- time service, the member's entitlement to long service leave is to be calculated on a pro rata basis. 11. Public holidays (1) If a public holiday falls during any period taken as long service leave under these Regulations it is not to be regarded as part of the long service leave and the member of Council staff taking such leave is to be entitled to a day off instead of the public holiday. (2) The day off instead of the public holiday is to be taken by agreement at the conclusion of the long service leave period or at a mutually convenient time. __________________ r. 10 -- 9 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 8 PART 3—MANNER IN WHICH LONG SERVICE LEAVE ENTITLEMENT MAY BE TAKEN 12. When leave can be taken A member of Council staff may take all or part of his or her long service leave entitlement at any time which is mutually acceptable to the member and the Council. 13. Double leave at half pay A member of Council staff may, with Council approval, take all or part of his or her long service leave entitlement at half the salary for twice the period. 14. Dispute as to time for taking leave (1) If a member of Council staff and the Council cannot agree on the time for the member to take long service leave, the Minister, on the request of either the Council or the member, must decide. (2) A dispute may only be determined by the Minister after any internal dispute resolution avenues of the Council have been exhausted. 15. No other employment A member of Council staff on long service leave must not engage in any employment for hire or reward, except with the prior approval of the Council. __________________ r. 12 -- 10 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 9 PART 4—GENERAL 16. Exchange of information between Councils A Council must, at the request of any other Council, supply that other Council with any information in its possession which may be required by that other Council for the purposes of these Regulations. 17. Provisions extend to joint bodies The provisions of these Regulations, with such modifications as are necessary, extend and apply to every employee of a body that is constituted by 2 or more Councils for a joint purpose under an Act of Parliament. 18. Long Service Leave Account (1) A Council must establish and maintain an account with an authorised deposit-taking institution (within the meaning of the Banking Act 1959 of the Commonwealth) or an investment account to be called the "Long Service Leave Account" (in this regulation called "the Account") for the purpose of making payments for long service leave to which members of Council staff become entitled. (2) At least once in every financial year the Council must ensure that the Account contains an amount as calculated under sub-regulation (3). (3) The amount required in the Account must be calculated on the following basis— (a) (E x 1⋅3 x B) x 70% for full-time members with 5 years and up to 10 years service; and (b) (E x 1⋅3 x B) x 100% for full-time members with more than 10 years service; and r. 16 -- 11 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 10 (c) (A x 1⋅3 x B) x 70% for part-time members with 5 years and up to 10 years service; and (d) (A x 1⋅3 x B) x 100% for part-time members with more than 10 years service— where— A = Average weekly earnings for the previous financial year; B = Number of years of service of the member; and Present annual wage or salary E = 52 (1⋅3 is the annual weekly long service leave entitlement). (4) The Council must pay into the Account— (a) any money received from any other Council on account of long service leave entitlements; and (b) any money received under an agreement made under regulation 9; and (c) any interest earned on money in the Account. (5) The Council must not make any payment from the Account except— (a) for the purpose of meeting payments to be made under the Act or these Regulations; or (b) for the purpose of meeting payments to be made under an agreement made under regulation 9; or (c) by way of transfer to the other accounts of the Council of any amount standing to the credit of the Account which the Council considers is in excess of actual or contingent liabilities. r. 18 -- 12 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 11 (6) If the money in the Account is insufficient to cover any payment to be made by the Council under the Act or these Regulations or under any agreement under regulation 9, the Council may make those payments from the other accounts of the Council. 19. Transfer of payments in respect of entitlements (1) If a member of a Council's staff is employed by the Council within 12 months of ceasing employment with another Council— (a) the Council must inform the other Council of the employment within 2 months of the commencement of the employment; and (b) the other Council must, within 2 months of being informed of the employment, pay to the Council an amount equal to one-fortieth of one month's pay for each completed month of service of the member with— (i) the other Council; and (ii) with any other Council, local government authority, public authority or office where service with that other Council, authority or office is to be included in the member's period of service under regulation 8. (2) The amount to be paid by the other Council to the Council under sub-regulation (1) is to be computed on the basis of the member's normal weekly number of hours of work and his or her ordinary time rate of pay as at the time he or she ceased being employed by the other Council. (3) If no ordinary time rate of pay was fixed for the member's work under the terms of his or her employment, the ordinary time rate of pay is to be taken to be the average weekly rate earned by him or her while actually working during the period of r. 19 -- 13 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 12 12 months immediately before the date he or she ceased being employed by the other Council. (4) If no normal weekly number of hours was fixed for a member of Council staff under the terms of his or her employment, the normal weekly number of hours is to be taken to be the average weekly number of hours worked by him or her during the period of 12 months immediately before the date he or she ceased being employed by the other Council. (5) A Council must refund a payment made to it under sub-regulation (1) if— (a) the member in respect of whom the payment was made ceases to be employed by the Council; and (b) 14 months after the cessation— (i) the Council has not been informed that he or she has been employed by another Council; and (ii) no agreement has been made by the Council with another employer in respect of the member's service to which the payment relates; and (c) the member did not receive any long service leave, or pay instead of long service leave, from the Council; and (d) the member is not entitled to receive any long service leave, or pay instead of long service leave, from the Council. 20. Part-time service before 1 January 1986 Despite regulation 4(2), part-time members of Council staff who worked less than 24 hours per week before 1 January 1986 are not entitled to accrue long service leave entitlements in respect of any work carried out on that basis before that r. 20 -- 14 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 13 date on a pro rata basis. However, all work carried out on that basis before that date constitutes service for the purpose of the member's long service leave entitlement. 21. Saving of earlier entitlements (1) If any provision of these Regulations has the effect of— (a) reducing or adversely affecting the position of any person in respect of service; or (b) specifying a level of benefits for any person or class of person which is less than the level which applied— under the Local Government Act 1958 as in force before the commencement of section 101 of the Local Government Act 1989, that provision, to the extent that it has that effect, has no force. (2) If sub-section (1) applies, the position of the person, or the level of benefits which is to apply, is to be determined as if the Local Government Act 1958 (as in force just before the commencement of section 101 of the Local Government Act 1989) was still in force. ═══════════════ r. 21 -- 15 of 16 -- S.R. No. 10/2002 Local Government (Long Service Leave) Regulations 2002 14 ENDNOTES Note that the Local Government (Long Service Leave) Regulations 1991 S.R. No. 25/1991, as extended in operation by S.R. No. 6/2001, were revoked on 18 February 2002 under section 5 of the Subordinate Legislation Act 1994. Endnotes -- 16 of 16 --