Days service - inclusion of periods of leave / aggregation of part days

PURPOSE:

This policy relates to the calculation of a worker's day's service under Part 6 Division 3 of the Building and Construction Industry (Portable Long Service Leave) Act 1991 (the Act) if the period of employment includes part-time employment and/or periods of leave.

SCOPE:

This policy is for use by all Client Services staff who have authority under the Delegations Manual to determine or adjust a worker's service entitlement under Part 6 Division 3 of the Act.

CONTEXT:

Division 1 of the Act places a requirement on the Authority to maintain a register of persons who are workers in the building and construction industry and include in that register, the number of days' service each worker must be credited with under Part 6 Division 3.

Division 3 determines what day's service must be credited to a worker who is employed under a contract of employment in the performance of building and construction work.

However, the Act is silent on whether a period of paid leave taken by a worker who is an employee during any such contract of employment would constitute service for the purposes of this Division.  In addition, sub-section 50(1)(b) Part 6 of Division 3 requires the Authority to form an opinion as to how many days' service (should be) credited to a worker had the service been full-time rather than part-time.

(i) Under this Policy "Parts of several day's service are to be aggregated and the worker is to be credited with as many full days' service as may be achieved by the aggregation.... (and) .... it is an incorrect interpretation of the Act to construe a part of a days' service as the equivalent of a full days' service for the purpose of calculating long service leave entitlements.":

(ii) "...periods of RDOs, public holidays, sick leave, annual leave and long service leave should be recognised for the purpose of crediting employee service to the industry"  In forming this opinion, Under this Policy that it was a principle of statutory interpretation that detrimental provisions must be express and therefore, by its silence, the Act never intended to exclude long service leave.  As to the other forms of leave, the opinion referred back to the table of recommendations contained the  Working Party Report and drew its argument from that source.

POLICY:

Service

A worker is not to be credited with any service unless the worker is a registered member of the portable long service leave scheme and a worker is not to be credited with more than 220 days' service in any financial year.

Periods of Leave

A worker is to be credited with periods of paid leave taken whilst otherwise employed under a contract of employment in the performance of building and construction work.  This leave includes sick leave, annual leave, rostered days off (RDOs), public holidays and long service leave.

In the case of an absence from work while in receipt of workers compensation benefits, a worker is entitled to accrue service in accordance with Section 51A of the Act.

A worker is not to be credited with additional service for work performed during paid long service leave (sub-section 52(5) of the Act).

A worker is not to be credited with service for unpaid leave, approved or otherwise (e.g. being stood down due to slackness of  trade, strike action etc).

Aggregation of Service

A worker is to be credited with a day's service for every full day worked, including weekends but no more than 7 days per week.

While no consideration can be given to the additional hours worked on overtime, if a worker who is an employee is working a compressed hours schedule, e.g. working fourteen hours a day two weeks on then two weeks off, special consideration needs to be given if this is the employee's ordinary work pattern.  If it is, and it represents full-time employment for that part of the industry, work type or region, approval should be sought at a managerial level to ensure that the employee receives the annual equivalent of days' service.

If QLeave is advised that a worker was engaged on a full-time basis, the worker is to be credited with five days' service per week unless it can be demonstrated that the worker actually worked for a greater period of service.

A worker engaged on other than a full-time basis (i.e. less than five days per week) is to be credited with the sum of the whole days worked.

Subject to the foregoing provisions, if a worker is engaged, or sometimes engaged, for periods of less than an ordinary working day, the number of hours worked is to be aggregated and divided by the workers ordinary hours to determine the number of whole additional days' service to be granted (e.g. if the worker ordinarily works an 8 hour day and the aggregate of the hours worked in a fortnight is 18, the worker is entitled to two days credit with no credit entitlement for the remaining 2 hours service).