Definitions

The definition of “employee" means a person who is employed under a contract of service in a classification of work referred to in a prescribed industrial instrument relating to the construction industry that is a prescribed classification; or an apprentice.

‘Employer means a natural person, firm or body corporate who or which engages persons as employees in the construction industry’; or ‘labour hire agency which arranges for a person who is a party to a contract of service with the agency to do work in the construction industry for another person’.

Employees include individual subcontractors hired principally for labour and paid by the day or hour.

“Construction industry means the industry –

(a) of carrying out on a site the construction, erection, installation, reconstruction, re-erection, renovation, alteration, demolition, or maintenance of or repairs to any of the following-

i. buildings;
ii. swimming pools and spa pools;
iii. roads, railways, airfields or other works for the passage of persons, animals or vehicles;
iv. breakwaters, docks, jetties, piers, wharves or works for the improvement or alteration of any harbour, river or watercourse for the purposes of navigation;
v. works for the storage or supply of water or for the irrigation of land;
vi. works for the conveyance, treatment or disposal of sewage or of the effluent from any premises;
vii. works for the extraction, refining, processing or treatment of materials or for the production or extraction of products and by products from materials;
viii. bridges, viaducts, aqueducts or tunnels;
ix. chimney stacks, cooling towers, drilling rigs, gas holders or silos;
x. pipelines;
xi. navigational lights, beacons or markers;
xii. works for the drainage of land;
xiii. works for the storage of liquids (other than water) or gases;
xiv. works for the generation, supply or transmission of electric power;
xv. works for the transmission of wireless or telegraphic communications;
xvi. pile driving works;
xvii. structures, fixtures or works for use on or for the use of any buildings or works of a kind referred to in subparagraphs (i) to (xv);
xviii. works for the preparation of sites for any buildings or works of a kind referred to in subparagraphs (i) to (xvi); and,
xix. fences, other than fences on farms;

(b) of carrying out of works on a site of the construction, erection, installation, reconstruction, re erection, renovation, alteration or demolition of any buildings or works of a kind referred to in paragraph (a) for the fabrication, erection or installation of plant, plant facilities or equipment for those buildings or works;

(c) of carrying out of work performed by employees engaged in the work referred to in paragraph (a) or (b) and that is normally carried out on site but which is not necessarily carried out on site,

Work not included in the Construction Industry:

(d) the carrying out of any work on ships; or
(e) the maintenance of or repairs or minor alterations to lifts or escalators; or
(f) the carrying out of maintenance or repairs of a routine or minor nature by employees for an employer, or another person under an arrangement with a labour hire agency, who is not substantially engaged in the industry described in this interpretation.”

The wage rate used to calculate Returns and to pay an employee’s long service leave is the employees’ “ordinary rate of pay”.

Ordinary pay for reportable Service Days will vary depending on if the worker is entitled to paid leave or not.

For workers entitled to paid leave, ordinary pay means the rate of pay (disregarding any leave loading) to which the person is entitled for leave (other than long service leave) to which the person is entitled.

The ordinary pay reported for employees who are entitled to paid annual leave under their terms of employment (including contracts of employment) should be:

• Their daily rate of pay while on paid annual leave (inclusive of allowances that are paid while on annual leave and excluding leave loading) multiplied by;
• The number of days of service you are reporting for them. 

Please note that ordinary pay does not include annual leave loading but does include other amounts such as rental allowance, utilities allowance, living away from home allowance etc. – if these allowances are due to a worker when on paid leave.

If a worker is not entitled to paid leave (other than long service leave), the ordinary pay of the person is the rate of pay to which the person is entitled for ordinary hours of work. For instance, the ordinary rate for casuals will include casual loading, other applicable allowances, and may include weekend work.

If you are unsure of the rate to be used MyLeave can offer assistance in determining the appropriate pay rate to use. Please contact  us for assistance.

Reportable Service Days include part days and weekends, where an employee is employed in the construction industry, on which an employee is entitled to receive ordinary pay. This includes rostered days off, public holidays, annual leave, paid sick leave, paid maternity leave, workers compensation, and stand down. For the period 30/03/2020 – 28/03/2021, long-term casuals who were receiving JobKeeper payments are to be reported as Service Days.

Note: Each day or part day employed as an employee in the construction industry, in an eligible job role is to be reported as a full day.

Reportable Service Days can sometimes be difficult to assess for industrial instruments which are not based upon a standard 5-day week (Monday – Friday). The Compliance and Advisory team at MyLeave will be pleased to provide any necessary assistance to you in clarifying issues regarding penalty rates and/or Reportable Service Days.

You will be required to provide a copy of your industrial instrument to the team for review purposes.

In cases where the situation is not clear, click here for guidelines to assist in the determination of the matter.

Employers who have employees who are domiciled in other States and who work in Western Australia may apply for exemption from paying long service leave charges if direct payments are made for those employees to similar long service leave Schemes in other States. Employers who wish to continue payments on behalf of workers domiciled in Western Australia who are working outside the State, will need to apply to the relevant interstate long service leave bodies for exemption from paying into their Schemes. Approval of the exemption will be subject to the individual State legislation.