1 Name of rules
These rules are the Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2016.
2 Commencement
These rules commence on the later of:
(a) the day after these rules are registered; or
(b) the day that Schedule 1 to the Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 commences.
3 Schedule
Schedule 1 amends the Business Services Wage Assessment Tool Payment Scheme Rules 2015.
Schedule 1—Amendments
1 Section 1.03(1)
Insert
approved legal personal representative — see subsection 10.03(4).
2 Section 1.03(1), definition of Act
Omit "2014", substitute "2015".
3 Section 3.19(1)
Omit the subsection, substitute
(1) Multiply the total excess amount for the person worked out in Step 3 (section 3.18) by 0.7.
Note: Paragraph 8(3)(a) of the Act provides that the amount a person should receive should broadly reflect the amount that is 70% of the excess of a productivity-scored wage over an actual wage indexed to reflect compounding increases in the Consumer Price Index since the financial years in which eligible days occurred.
4 Section 8.03(1) (after table item 7)
Insert
| 8 | Disclosure is reasonably necessary for the purposes of research or analysis into any of the following: (a) calculation and payment of wages using the BSWAT; or (b) the management, operation or administration of the Act or these rules. |
5 After Chapter 9
Insert
Chapter 10—Deceased persons
10.01 Purpose of this Chapter
This Chapter is made under subsection 97(3) of the Act and sets out the way in which a person can apply to be recognised by the Secretary as a deceased person's legal personal representative.
10.02 Making an application to be a legal personal representative
(1) A person may apply to the Secretary in the approved form for a determination that the person is a legal personal representative for a deceased person for the purposes of the Act and these rules.
(2) An application must be accompanied by such information and documents as are specified in the approved form.
10.03 Secretary may determine that a person is a legal personal representative
(1) If the Secretary receives an application under section 10.02, the Secretary may determine that the person (the LPR applicant) is a legal personal representative for a deceased person (the deceased person) for the purposes of the Act and these rules if the Secretary is satisfied that:
(a) the LPR applicant is an executor of the deceased person's estate; or
(b) the LPR applicant is an administrator of the deceased person's estate; or
(c) the LPR applicant has control of the deceased person's estate under a law of the Commonwealth or of a state or territory; or
(d) there is no executor or administrator of the deceased person's estate and it is appropriate (having regard to the matters specified in subsection (3)) for the LPR applicant to be the deceased person's legal personal representative for the purposes of the Act and these rules.
(2) To avoid doubt, for the purposes of paragraph 10.03(1)(d), the Secretary is not required to make inquiries about whether there is an executor or administrator of the deceased person's estate.
(3) The matters to which the Secretary must have regard in making a decision under paragraph 10.03(1)(d) are:
(a) whether it is likely that a person would be appointed as an executor or administrator of the deceased person's estate within the three months following an application under section 10.02; and
(b) the size of the deceased person's estate; and
(c) whether the LPR applicant is a relative of the deceased person; and
(d) whether there is another person who would be a more appropriate legal personal representative for the deceased person; and
(e) whether, prior to the deceased person's death, the LPR applicant was:
(i) a nominee of the deceased person under the Act or for the purposes of the social security law; or
(ii) a court-appointed decision-maker in relation to the deceased person; or
(iii) a participant-appointed decision-maker in relation to the deceased person; and
(f) any other relevant matter.
(4) When the Secretary determines that a LPR applicant is the legal personal representative for a deceased person, the LPR applicant is an approved legal personal representative for that deceased person.
10.04 More than one LPR applicant for a deceased person
If the Secretary receives applications under section 10.02 from more than one LPR applicant in respect of the same deceased person, the Secretary may decline to consider the applications because the Secretary believes that the matter should be dealt with by a court.
10.05 Cancellation of determination
(1) The Secretary may cancel a determination that a person is an approved legal personal representative if the Secretary is satisfied that:
(a) in the case of a determination made under paragraph 10.03(1)(d)—either:
(i) the Secretary is satisfied that there is another person who meets a description in paragraph 10.03(1)(a), (b) or (c); or
(ii) the Secretary is satisfied that it is no longer appropriate (having regard to the matters specified in subsection 10.03(3)) for the person to be the legal personal representative of the deceased person; or
(b) in any case—the Secretary is satisfied that the person has not acted or is not acting in the best interests of the estate of the deceased person.
(2) The Secretary may make a decision under subsection (1) without giving notice to any person affected by the decision or affording an opportunity to make submissions if the Secretary is satisfied that to do so is in the best interests of the estate of the deceased person.
(3) The Secretary may decline to consider whether to make a decision under subsection 10.05(1) because the Secretary believes that the matter should be dealt with by a court.
10.06 One approved legal personal representative
At any one time, there can only be one approved legal personal representative in respect of a deceased person.
10.07 Effect of making a payment
If the Secretary makes a payment under section 40 of the Act to an approved legal personal representative, no other person may make any claim or bring any action against the Secretary on account of any payment made under the Act to the approved legal personal representative.