Part 3 Registration of workers and service credits
Division 1 Register of workers
15 Corporation to keep register of workers
(1) The Corporation shall keep a register of workers in which it shall cause to be entered:(a) the names of all persons who are registered under section 17,(b) the date on which each such person became a registered worker,(c) in respect of each such person, the number of days’ service in the building and construction industry with which that person is credited in accordance with Division 3, and(d) such other information relating to workers, employers and other persons as the Corporation deems necessary for the purpose of administering this Act.(2) The Corporation may, for the purposes of entering in the register of workers the particulars referred to in subsection (1) (c), rely on the information contained in a certificate of service furnished under section 20 (1) or a claim for service credits furnished under section 21 (1) or on such other information as the Corporation thinks fit.
Division 2 Registration of workers
16 Applications for registration
(1) A person may at any time apply to the Corporation to be registered as a worker.(2) (Repealed)(3) An application must be made in the approved form.
16A Employer to notify Corporation of employment of workers
An employer who employs a worker under a contract of employment must notify the Corporation of that employment within 7 days after the worker commences to perform building and construction work in New South Wales under that contract.Maximum penalty: 20 penalty units.
Note. An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 63.
(1) The Corporation is to register every person who the Corporation is satisfied is a worker.(2) The Corporation may register a person as a worker in response to an application by the person for registration or on its own initiative.
(1) The date on which a person becomes a registered worker is:(a) if the person applied to be registered as a worker—the date on which application for the person’s registration was lodged with the Corporation, or(b) if the Corporation registered the person on its own initiative—the date of that registration.(2) Despite subsection (1), the Corporation may, on its own initiative or at the request of a person who is registered as a worker, fix, in respect of any person or class of persons, a date of registration that is earlier than the date referred to in that subsection.(3) However, if a person who is registered as a worker has requested an earlier date in accordance with subsection (2), the Corporation must not fix a date that is earlier than 2 years before the request was made, unless the Corporation is satisfied that special circumstances warrant its doing so.(4) On the fixing of a date in accordance with subsection (2):(a) the person or class of persons for whom the date is fixed are taken for all purposes to have been registered on and from that date, and(b) service credits to which the person or those persons are entitled under this Act may be credited to the person or those persons in respect of any subsequent dates.
19 Cancellation or suspension of registration
(1) In this section, non-service day, in respect of a registered worker, means a day in respect of which the worker did not accumulate a service credit (not being a day prescribed by the regulations as a day to be disregarded in calculations made under subsection (1A) or (1B) in respect of the worker).(1A) The Corporation is to cancel the registration of a registered worker who has not been credited with at least 5 years’ service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law.(1B) The Corporation may suspend the registration of a registered worker who has been credited with at least 5 years’ service in the register of workers if non-service days amounting to 4 years have elapsed since the last date in respect of which the worker was credited with service under this Act or in a record of building and construction workers kept under a corresponding law.(2) The Corporation may at any time cancel the registration of a registered worker if it is satisfied that the person concerned is not a worker and that the person’s application to become a registered worker should have been refused.(2A) The Corporation is to cancel the registration of a worker:(a) on the making of any payment in accordance with section 28 (1) (c), (d) or (e), or section 28 (2), in respect of the worker, or(b) at the request of the worker.(3) The cancellation of the registration of a registered worker under subsection (1A) or (2) takes effect:(a) on the expiration of the period of 42 days after the Corporation notifies the registered worker of the cancellation, or(b) if an appeal under Part 6 is lodged against the cancellation within that period—on the date the appeal is withdrawn or the cancellation is confirmed.(4) On the cancellation of the registration of a worker taking effect:(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 any long service payment in respect of any days’ service then credited to the person in the register of workers.(5) A person whose registration has been cancelled in accordance with this section may (if eligible) subsequently be registered as a worker.(6) The Corporation may:(a) restore a suspended registration at any time, or(b) restore a cancelled registration:(i) at any time within 6 years after the date of cancellation, if the Corporation is satisfied that special circumstances exist warranting reinstatement, or(ii) at any time, if required to do so in accordance with an agreement in force under section 55.(7) Restoration under subsection (6) (b) (i) of a cancelled registration may be taken by the Corporation to be effective from any date within 6 years after the date of cancellation.(8) While the registration of a worker is suspended:(a) the worker is not to be credited in the register of workers with any service under this Act (being service during the period of suspension), and(b) the Corporation is not required to serve any notice under section 25 (1) on the worker, and(c) subject to section 30:(i) the worker is entitled to apply for and be paid any long service payment in respect of any days’ service then credited to the worker in the register of workers, and(ii) if the worker has died (whether before or after the worker’s registration was suspended)—the personal representative of the worker is entitled to apply for and be paid any long service payment in respect of any days’ service then credited to the worker in the register of workers, but only if the application is made within 2 years after the date of suspension or the date of the worker’s death (whichever is the later).(9) If a suspended registration is restored under subsection (6) (a), any days’ service under this Act that are credited to the worker as at the date of the suspension are to be restored.
20 Contract of employment workers—certificates of service to be supplied by employers
(1) An employer who employs, under a contract of employment, a worker shall:(a) within 1 month after 30 June in each year, furnish to the Corporation a certificate of service in respect of the worker for the year immediately preceding that 30 June,(b) within 7 days (or such other time as may be prescribed by the regulations) after the worker ceases to be so employed, furnish to the Corporation a certificate of service in respect of the worker for the period commencing on 1 July immediately preceding that cessation of employment and ending on that cessation of employment, and(c) within such time as is specified by the Corporation in a notice served on the employer, furnish to the Corporation a certificate of service in respect of the worker for the period specified in the notice.Maximum penalty: 20 penalty units.
(2) The Corporation may, in any particular case, extend the period within which an employer is required to furnish a certificate of service under subsection (1), but any such extension shall not exceed 2 months.(3) A certificate of service under subsection (1) shall:(a) be in an approved written, electronic or other form,(b) state whether the worker was employed by the employer during the whole of the period to which the certificate relates or, if so employed during a part only of that period, the period during which the worker was so employed,(c) contain such particulars as are requested in the form in respect of the time spent in the performance of building and construction work,(d) contain such particulars of building and construction work performed by the worker outside New South Wales as are requested in the form,(e) contain such other particulars as are required by the Corporation, and(f) be completed in accordance with any directions given by the Corporation.(g) (Repealed)(4) A certificate of service under subsection (1) must be verified in such manner as the Corporation may require.(5) An employer is not required to furnish a certificate of service in respect of a worker or any class of workers if:(a) the employer applies to the Corporation for an exemption from that requirement,(b) the employer satisfies the Corporation that contributions are made to a like scheme relating to the payment of long service payments to the worker or that class of workers, as the case may be, in a Territory of the Commonwealth or in a State other than New South Wales, and(c) the Corporation has, by notice in writing to the employer, granted the exemption and has not, by such a notice, revoked the exemption.
21 Subcontract workers—claims for service credits
(1) A registered worker may furnish to the Corporation a claim for service credits in respect of building and construction work performed by the registered worker under a contract other than a contract of employment.(2) A claim for service credits under subsection (1) may be furnished:(a) within 12 months after 30 June in any year, in respect of building and construction work performed by the registered worker in the year immediately preceding that 30 June,(b) within 12 months after the registered worker permanently ceases work in the building and construction industry, in respect of building and construction work performed by the registered worker in the period commencing on 1 July immediately preceding that cessation of work and ending on that cessation of work, or(c) at such other times as the Corporation may approve in any particular case, in respect of building and construction work performed by the registered worker in the period specified by the Corporation in that approval.(3) The Corporation may, in any particular case or class of cases, extend the period within which a registered worker may furnish a claim for service credits under subsection (1).(4) A claim for service credits under subsection (1) shall:(a) be in an approved written, electronic or other form,(b) specify the amount of the assessable income (within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth) derived by the registered worker from the building and construction work to which the claim relates,(c) specify the amount of the prescribed costs incurred by the registered worker in deriving the assessable income referred to in paragraph (b),(d) contain such particulars of building and construction work performed by the registered worker outside New South Wales as are requested in the form,(e) contain such other particulars as are required by the Corporation, and(f) be completed in accordance with any directions given by the Corporation.(g) (Repealed)(5) A claim for service credits under subsection (1) must be verified in such manner as the Corporation may require.(6) The regulations may make provision for or with respect to the manner of determining the assessable income and the prescribed costs referred to in subsection (4) (b) and (c).(7) A claim for service credits may be furnished by a registered worker under subsection (1) for the purpose of obtaining service credits in accordance with section 23 notwithstanding that the registered worker did not perform building and construction work in the period to which the claim relates.
22 Service credits for building and construction work
(1) A registered worker who was employed on a full-time basis under a contract of employment in the performance of building and construction work for the whole of a financial year is entitled to be credited in the register of workers with 220 days’ service.(2) A registered worker who was so employed for a period consisting of part of a financial year only is entitled to be credited in the register of workers with a number of days’ service equal to two-thirds of the number of days in that period.(3) A registered worker:(a) who was employed on a part-time basis under a contract of employment in the performance of building and construction work, or(b) who was employed in the performance of building and construction work and other work,during the whole or any part of a financial year is entitled to be credited in the register of workers with a number of days’ service equivalent to the number of full days (as calculated by the Corporation) of employment in building and construction work.(3A) For the purposes of subsection (3), when calculating the number of days’ service equivalent to the number of full days of employment in building and construction work, the Corporation is to:(a) count any day on which the registered worker performed building and construction work for more than half the worker’s ordinary work day as a full day of employment in building and construction work, and(b) disregard any day on which the registered worker performed work (other than building and construction work) for more than half the worker’s ordinary work day.(4) A registered worker who was a subcontract worker performing building and construction work and who lodges a claim for service credits under section 21 is entitled to be credited in the register of workers with:(a) 220 days’ service, if the worker’s annual income was not less than the minimum annual income, or(b) a number of days’ service that bears to 220 the same proportion as the worker’s annual income bears to the minimum annual income, in any other case.(5) In this section:income of a subcontract worker means the amount of assessable income specified, pursuant to section 21 (4) (b), in the subcontract worker’s claim under section 21 less the amount of the prescribed costs specified, pursuant to section 21 (4) (c), in the claim.
minimum annual income of a subcontract worker means an amount equal to 52-times standard pay, calculated as at 1 January last preceding the end of the period to which the worker’s claim under section 21 relates.
(6) This section has effect subject to section 24.
23 Service credits in other cases
(1) A registered worker who:(a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and(b) has not, since the termination of that contract, performed paid work of any kind, and(c) in the financial year in which the contract was terminated, or in any of the 3 subsequent financial years, suffered an illness or injury that is certified in writing by a medical practitioner to be of such a nature as to render the registered worker reasonably unable to perform building and construction work (whether or not any such work was available for the registered worker and whether or not the illness or injury existed before the registered worker last performed any such work),is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days during which the worker was certified as being unable to perform building and construction work.(2) A registered worker who:(a) performed building and construction work under a contract (whether or not a contract of employment) that was terminated (whether by the worker or the employer), and(b) has not, since the termination of that contract, performed paid work of any kind, and(c) has, since the termination of that contract, in any financial year undertaken a training course recognised by the Corporation as being relevant to the building and construction industry in order to enhance the registered worker’s prospects of being employed in the industry,is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent undertaking the course while unemployed during that year.(3) A registered worker who in any financial year performs voluntary work in the nature of building and construction work in New South Wales as a result of an emergency declared or otherwise recognised under the State Emergency and Rescue Management Act 1989 or under any similar Act of the State or of the Commonwealth, is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent performing that voluntary work during that year.(4) A registered worker who in any financial year performs light duty work assigned to the worker in accordance with the Workers Compensation Act 1987, while partially incapacitated for work as a result of an injury (as defined in that Act) sustained while performing building and construction work is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent performing that light duty work during that year.(5) Subsection (4) does not apply in respect of light duty work performed during a financial year that commenced more than 3 years after the date of the relevant injury.(6) A registered worker who in any financial year performed unpaid work in the nature of building and construction work on a residential building (being a building constructed or acquired by the worker solely for the purpose of subsequent sale by the worker) is entitled to be credited in the register of workers with a number of days’ service determined by the Corporation to be equivalent to the number of full days spent performing that unpaid work while unemployed during that year.(7) Without limiting the power of the Corporation to determine a number of days’ service to be equivalent, for the purposes of an entitlement under this section, to a number of full days in a period during which such an entitlement arises, the Corporation may, in the case of any such period that is greater than one week, determine that two-thirds of the number of days in the period is the proper service equivalent.(8) Entitlements under this section must be claimed by the registered worker concerned, who must make out the claim to the satisfaction of the Corporation.(9) This section has effect subject to section 24.
24 Limitations on and adjustments of service credits
(1) A person shall not be credited in the register of workers with any day’s service in the building and construction industry unless that day was on or after the date, shown in that register, on which the person became a registered worker.(2) A registered worker shall not be credited in the register of workers with more than 220 days’ service in the building and construction industry in respect of any financial year.(2A) Where:(a) in respect of any financial year a registered worker would, but for this subsection, be entitled to be credited in the register of workers kept under this Act with a period of service and to be credited in a record of building and construction workers’ service kept under a corresponding law with another period of service, and(b) those periods of service together amount to more than 220 days,the period of service with which the worker may be credited in the register of workers kept under this Act shall be adjusted as prescribed.(2B) The adjustment referred to in subsection (2A) shall be made:(a) on the making of an application under this Act or under a corresponding law for a long service payment to be made or a long service benefit to be paid in respect of a period of service that includes either or both of the periods of service referred to in that subsection, or(b) at such other times as the Corporation may decide.(3) Where:(a) a long service payment is made to a person as a result of an application made under section 28 (1) by virtue of the person’s having fulfilled the requirements specified in section 28 (1) (c) or (d), or(b) a long service benefit is paid to a person as a result of an application made under a provision of a corresponding law that corresponds to section 28 (1) by virtue of the person’s having fulfilled requirements similar to those so specified,the person shall not be credited in the register of workers with any day’s service in respect of building and construction work performed by that person during that period of 12 months immediately following the date of that application.(4) Section 32, however, applies to each day’s service referred to in subsection (3) as though it had been credited to the worker.(6) A service credit that, calculated in accordance with section 22 or 23, results in a number of days consisting of a whole number plus a fraction is to be adjusted to the next succeeding whole number.
25 Notice to registered workers of service credits
(1) The Corporation shall, as soon as practicable after 31 July in each year, serve on each person who on 30 June in that year was a registered worker a notice:(a) specifying the number of days’ service in the building and construction industry, as shown in the register of workers, with which that registered worker has, in accordance with this Division, been credited in respect of the year ended on that 30 June, and(b) specifying the total number of days’ service in the building and construction industry with which that registered worker has, in accordance with this Division, been credited.(2) Any person on whom a notice is served under subsection (1) may, within 6 months after the service of the notice, lodge with the Corporation an objection against the accuracy of the notice in relation to the number of days specified in the notice pursuant to subsection (1) (a).(3) The Corporation shall determine an objection lodged pursuant to subsection (2) and the determination of the Corporation shall, subject to any determination made by the Committee in an appeal under Part 6, be final and conclusive.(4) Where no objection is lodged pursuant to subsection (2) in relation to a notice or any objection so lodged is determined under subsection (3), the Corporation shall not consider any other objection relating to the accuracy of the notice unless:(a) the objection is lodged with the Corporation within 2 years after the date of the work, activity or circumstance to which the objection relates, or(b) the Corporation considers that special circumstances warrant its doing so.(5) Nothing in this section requires the Corporation to serve notice on a person who the Corporation has reason to believe is no longer to be found at the address last entered in the register of workers as the person’s place of residence or business and for whom no other address for service (including any destination for electronic transmission) is known to the Corporation.(6) Without limiting the generality of subsection (5), notice is not required to be served on a person for whom no more current address is known if the last 2 notices sent by the Corporation by post to the address last entered in the register of workers as the person’s place of residence or business have been returned to the sender.(7) Despite subsection (1), the Corporation is not required to serve a notice on a person:(a) whose registration has been cancelled (whether before or after the 30 June to which the notice relates), or(b) whose registration, in the opinion of the Corporation, is likely to be cancelled before the following 30 June.(8) However, if the Corporation has, by reason of subsection (7) (b), not served a notice on a person and by that following 30 June the person’s registration has not been cancelled, the Corporation must, as soon as possible, ensure that the relevant notice is served on the person.