Employee cancellation - 4 year rule
PURPOSE:
The purpose of this policy is to state the guidelines of the Building and Construction (Portable Long Service Leave) Authority (the Authority) for the application of section 41 of the Building and Construction Industry (Portable Long Service Leave) Act 1991 (the Act) where a registered worker has not been credited with any service in the register of workers kept under the Act, or in a like register or record (an interstate register) kept under a corresponding law (as defined in the Act), for at least 4 consecutive years.
SCOPE:
This policy applies to registered workers under the Act.
CONTEXT:
Relevant excerpts from the Act
37 Authority to keep register of workers
(1) The authority must keep a register of persons who are workers in the building and construction industry.
41 Cancellation of registration
(1) The authority may cancel the registration of a registered worker if it is satisfied that the registered worker has not been credited with any service in the register of workers kept under this Act, or in a like register or record kept under a corresponding law, for at least 4 consecutive years.
(2) . . . . . . . . . . . . . . . . . . . . .
(3) If the authority cancels the registration of a person as a registered worker, it must remove the name of the person from the register of workers—
(a) as soon as practicable after 120 days from when the authority notifies the person of the cancellation; or
(b) if an application for a reconsideration or an appeal underpart 9 is lodged against the cancellation within that period—on the day the application or appeal is withdrawn or the cancellation is finally confirmed.
(3A) . . . . . . . . . . . . . . . .
(3B) . . . . . . . . . . . . . . . .
(4) When the name of a person is removed from the register of workers—
(a) the person ceases to be a registered worker; and
(b) the person or the personal representative of the person is not entitled to apply for or be paid long service leave in respect of any days’ service credited to the person in the register of workers at the time of the removal.
(5) Nothing in this section prevents a person whose name has been removed from the register of workers under this section from subsequently becoming a registered worker.
POLICY:
Step 1 Notice of proposed cancellation of registration
1 The Authority will invoke the process under section 41(1) of the Act if both—
- a registered worker has not been credited with any service in the register of workers for at least the last 4 consecutive years (the 4-year period); and
- the Authority is unaware of the worker having been credited with any service in an interstate register during the 4-year period.
When the Authority invokes the process under section 41(1) of the Act, it must give the worker a written notice stating that it intends to cancel the worker’s registration as a registered worker on the expiry of 1 month after issuing the notice (the 1-month period).
2 The notice must also state that the worker may prevent the worker’s registration being cancelled if the worker provides the Authority with any of the following information during the 1-month period—
- details of service of the worker in Queensland during the 4-year period
- evidence that the worker has been credited with service in an interstate register during the 4-year period.
If the worker provides the above mentioned information to the Authority and the Authority verifies the information, the worker’s registration will not be cancelled.
Step 2 Cancellation of registration
3 The Authority must cancel the worker’s registration after the expiry of the 1-month period if either—
- the worker does not provide the Authority with the information mentioned in paragraph 2 of this policy; or
- the worker provides the Authority with the information mentioned in paragraph 2 of this policy, but the information cannot be verified by the Authority.
4 The Authority must give the worker written notice of the cancellation, stating—
- the date of cancellation; and
- that the worker’s name will be removed by the Authority from the register of workers on the expiry of 120 days after issuing the notice (the 120-day period).
5 The notice must also state that the worker may prevent the worker’s name being removed from the register of workers if the worker provides the Authority with any of the following information during the 120-day period—
- details of service of the worker in Queensland during the 4-year period
- evidence that the worker has been credited with service in an interstate register during the 4-year period.
If the worker provides the information to the Authority during the 120-day period and the Authority verifies the information, the worker’s registration will be reinstated, effective from the date of its cancellation.
6 The notice must also state that the worker may prevent the worker’s name being removed from the register of workers if, during the 120-day period, the worker applies for a reconsideration, or lodges an appeal, under part 9 of the Act in relation to the Authority’s decision to cancel the worker’s registration.
If the worker applies for a reconsideration, or lodges an appeal, under part 9 of the Act in relation to the Authority’s decision to cancel the worker’s registration, the worker’s name will be removed from the register of workers if—
- the application or appeal is withdrawn; or
- the worker is unsuccessful on the application or appeal.
7 The notice must also state that if a person’s name is removed from the register of workers—
- the person ceases to be a registered worker; and
- the person, or the person’s personal representative, is no longer entitled to apply for or be paid long service leave for any days’ service credited to the person in the register of workers at the time of the removal.
Step 3 Removal of worker’s name from register of workers
8 The Authority must remove the worker's name from the register of workers as soon as practicable after the expiry of the 120-day period if—
- the worker does not provide the Authority with the information mentioned in paragraph 5 of this policy; or
- the worker provides the Authority with the information mentioned in paragraph 5 of this policy, but the information cannot be verified by the Authority.
9 However, if during the 120-day period, the worker applies for a reconsideration, or lodges an appeal, under part 9 of the Act in relation to the Authority’s decision to cancel the worker’s registration, the Authority must remove the worker's name from the register of workers—
- if the application or appeal is withdrawn—as soon as practicable after the withdrawal; or
- if the decision on the application or appeal is that the Authority’s decision be confirmed—as soon as practicable after the date of the decision on the application or appeal.