Ports,Harbours and Enclosed Water Vessels Award 2010

Ports,Harbours and Enclosed Water Vessels Award 2010

This Fair Work Commission consolidated modern award incorporates all amendments up to and including 4 December 2017 (PR598110).

Clause(s) affected by the most recent variation(s):

Current review matter(s):AM2014/47;AM2014/190;AM2014/196;AM2014/197;AM2014/241;AM2014/300;AM2014/301;AM2015/1;AM2015/2;AM2016/5;AM2016/8;AM2016/15

Table of Contents

[Varied by PR991560,PR994513,PR532631,PR544519,PR546288,PR557581,PR573679, PR585481,PR588737]

Part 1—Application and Operation

1. Title

2. Commencement and transitional

3. Definitions and interpretation

4. Coverage

5. Access to the award and the National Employment Standards

6. The National Employment Standards and this award

7. Award flexibility

Part 2—Consultation and Dispute Resolution

8. Consultation

9. Dispute resolution

Part 3—Types of Employment and Termination of Employment

10. Types of employment

11. Termination of employment

12. Redundancy

Part 4—Minimum Wages and Related Matters

13. Minimum wages

14. Allowances

15. Accident pay

16. Payment of wages

17. Superannuation

Part 5—Hours of Work and Related Matters

18. Ordinary hours of work and rostering

19. Breaks

20. Overtime and penalty rates

21. Shiftwork

Part 6—Leave and Public Holidays

22. Annual leave

23. Personal/carer’s leave and compassionate leave

24. Community service leave

25. Public holidays

Schedule A—Transitional Provisions

Schedule B—2017 Part-day Public Holidays

Schedule C—Agreement for Time Off Instead of Payment for Overtime

Schedule D—Agreement to Take Annual Leave in Advance

Schedule E—Agreement to Cash Out Annual Leave

Part 1—Application and Operation

1. Title

2. Commencement and transitional

3. Definitions and interpretation

4. Coverage

5. Access to the award and the National Employment Standards

6. The National Employment Standards and this award

7. Award flexibility

1. Title

This award is the Ports,Harbours and Enclosed Water Vessels Award 2010.

2. Commencement and transitional

[Varied by PR991560,PR542172]

2.1 This award commences on 1 January 2010.

2.2 The monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment.

2.3 This award contains transitional arrangements which specify when particular parts of the award come into effect. Some of the transitional arrangements are in clauses in the main part of the award. There are also transitional arrangements in Schedule A. The arrangements in Schedule A deal with:

    ●minimum wages and piecework rates;

    ●casual or part-time loadings;

    ●Saturday,Sunday,public holiday,evening or other penalties;and

    ●shift allowances/penalties.

[2.4 varied by PR542172 ppc 04Dec13]

2.4 Neither the making of this award nor the operation of any transitional arrangements is intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay as a result of the making of this award or the operation of any transitional arrangements,the Fair Work Commission may make any order it considers appropriate to remedy the situation.

[2.5 varied by PR542172 ppc 04Dec13]

2.5 The Fair Work Commission may review the transitional arrangements in this award and make a determination varying the award.

[2.6 varied by PR542172 ppc 04Dec13]

2.6 The Fair Work Commission may review the transitional arrangements:

    (a) on its own initiative;or

    (b) on application by an employer,employee,organisation or outworker entity covered by the modern award;or

    (c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award;or

    (d) in relation to outworker arrangements,on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the arrangements relate.

3. Definitions and interpretation

[Varied by PR994513,PR997772,PR503671,PR546026]

3.1 In this award,unless the contrary intention appears:

    Act means the Fair Work Act 2009 (Cth)

[Definition of agreement-based transitional instrument inserted by PR994513 from 01Jan10]

    agreement-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

    award-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

[Definition of default fund employee inserted by PR546026 ppc 01Jan14]

    default fund employee means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth)

[Definition of defined benefit member inserted by PR546026 ppc 01Jan14]

    defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth)

[Definition of Division 2B State award inserted by PR503671 ppc 01Jan11]

    Division 2B State award has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

[Definition of Division 2B State employment agreement inserted by PR503671 ppc 01Jan11]

    Division 2B State employment agreement has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

[Definition of employee substituted by PR997772 from 01Jan10]

    employee means national system employee within the meaning of the Act

[Definition of employer substituted by PR997772 from 01Jan10]

    employer means national system employer within the meaning of the Act

    enterprise award-based instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

[Definition of exempt public sector superannuation scheme inserted by PR546026 ppc 01Jan14]

    exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)

[Definition of MySuper product inserted by PR546026 ppc 01Jan14]

    MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)

    NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)

[Definition of on-hire inserted by PR994513 from 01Jan10]

    on-hire means the on-hire of an employee by their employer to a client,where such employee works under the general guidance and instruction of the client or a representative of the client

    standard rate means the minimum weekly rate for a General Purpose Hand in clause 13

[Definition of transitional minimum wage instrument inserted by PR994513 from 01Jan10]

    transitional minimum wage instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

3.2 Where this award refers to a condition of employment provided for in the NES,the NES definition applies.

4. Coverage

[Varied by PR994513,PR529165]

[4.1 varied by PR529165 ppc 27Sep12]

4.1 This award covers employers throughout Australia in the ports,harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:

    (a) the Maritime Offshore Oil and Gas Award 2010;

    (b) the Seagoing Industry Award 2010;

    (c) the Port Authorities Award 2010;

    (d) the Dredging Industry Award 2010;

    (e) the Stevedoring Industry Award 2010;

    (f) the Marine Towage Award 2010;and

    (g) the Marine Tourism and Charter Vessels Award 2010.

    For the purpose of clause 4.1,ports,harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port,harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.

4.2 The award does not cover maintenance contractors covered by the following awards:

    (a) the Manufacturing and Associated Industries and Occupations Award 2010;or

    (b) the Electrical,Electronic and Communications Contracting Award 2010.

4.3 The award does not cover employees of a local government covered by another award.

4.4 The award does not cover an employee excluded from award coverage by the Act.

4.5 The award does not cover employees who are covered by a modern enterprise award,or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)),or employers in relation to those employees.

[New 4.6 and 4.7 inserted by PR994513 from 01Jan10]

4.6 The award does not cover employees who are covered by a State reference public sector modern award,or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)),or employers in relation to those employees.

4.7 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award,and those on-hire employees,while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

[4.6 renumbered as 4.8 by PR994513 from 01Jan10]

4.8 Where an employer is covered by more than one award,an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

    NOTE:Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

5. Access to the award and the National Employment Standards

The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means,whichever makes them more accessible.

6. The National Employment Standards and this award

The NES and this award contain the minimum conditions of employment for employees covered by this award.

7. Award flexibility

[Varied by PR542172]

7.1 Notwithstanding any other provision of this award,an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:

    (a) arrangements for when work is performed;

    (b) overtime rates;

    (c) penalty rates;

    (d) allowances;and

    (e) leave loading.

[7.2 varied by PR542172 ppc 04Dec13]

7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.

7.3 The agreement between the employer and the individual employee must:

    (a) be confined to a variation in the application of one or more of the terms listed in clause 7.1;and

[7.3(b) varied by PR542172 ppc 04Dec13]

    (b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.

7.4 The agreement between the employer and the individual employee must also:

    (a) be in writing,name the parties to the agreement and be signed by the employer and the individual employee and,if the employee is under 18 years of age,the employee’s parent or guardian;

    (b) state each term of this award that the employer and the individual employee have agreed to vary;

    (c) detail how the application of each term has been varied by agreement between the employer and the individual employee;

    (d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment;and

    (e) state the date the agreement commences to operate.

7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.

7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.

7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures,including translation into an appropriate language,to ensure the employee understands the proposal.

7.8 The agreement may be terminated:

[7.8(a) varied by PR542172 ppc 04Dec13]

    (a) by the employer or the individual employee giving 13 weeks’notice of termination,in writing,to the other party and the agreement ceasing to operate at the end of the notice period;or

    (b) at any time,by written agreement between the employer and the individual employee.

[Note inserted by PR542172 ppc 04Dec13]

    Note:If any of the requirements of s.144(4),which are reflected in the requirements of this clause,are not met then the agreement may be terminated by either the employee or the employer,giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).

[New 7.9 inserted by PR542172 ppc 04Dec13]

7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a),subject to four weeks’notice of termination.

[7.9 renumbered as 7.10 by PR542172 ppc 04Dec13]

7.10 The right to make an agreement pursuant to this clause is in addition to,and is not intended to otherwise affect,any provision for an agreement between an employer and an individual employee contained in any other term of this award.

Part 2—Consultation and Dispute Resolution

8. Consultation

9. Dispute resolution

8. Consultation

[8—Consultation regarding major workplace change renamed and substituted by PR546288 ppc 01Jan14]

8.1 Consultation regarding major workplace change

    (a) Employer to notify

      (i) Where an employer has made a definite decision to introduce major changes in production,program,organisation,structure or technology that are likely to have significant effects on employees,the employer must notify the employees who may be affected by the proposed changes and their representatives,if any.

      (ii) Significant effects include termination of employment;major changes in the composition,operation or size of the employer’s workforce or in the skills required;the elimination or diminution of job opportunities,promotion opportunities or job tenure;the alteration of hours of work;the need for retraining or transfer of employees to other work or locations;and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

    (b) Employer to discuss change

      (i) The employer must discuss with the employees affected and their representatives,if any,the introduction of the changes referred to in clause 8.1(a),the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

      (ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

      (iii) For the purposes of such discussion,the employer must provide in writing to the employees concerned and their representatives,if any,all relevant information about the changes including the nature of the changes proposed,the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

8.2 Consultation about changes to rosters or hours of work

    (a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work,the employer must consult with the employee or employees affected and their representatives,if any,about the proposed change.

    (b) The employer must:

      (i) provide to the employee or employees affected and their representatives,if any,information about the proposed change (for example,information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

      (ii) invite the employee or employees affected and their representatives,if any,to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities);and

      (iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

    (c) The requirement to consult under this clause does not apply where an employee has irregular,sporadic or unpredictable working hours.

    (d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.

9. Dispute resolution

[Varied by PR542172]

9.1 In the event of a dispute about a matter under this award,or a dispute in relation to the NES,in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute,the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

[9.2 varied by PR542172 ppc 04Dec13]

9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace,and all appropriate steps under clause 9.1 have been taken,a party to the dispute may refer the dispute to the Fair Work Commission.

[9.3 varied by PR542172 ppc 04Dec13]

9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation,conciliation and consent arbitration.

[9.4 varied by PR542172 ppc 04Dec13]

9.4 Where the matter in dispute remains unresolved,the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.

9.5 An employer or employee may appoint another person,organisation or association to accompany and or represent them for the purposes of this clause.

9.6 While the dispute resolution procedure is being conducted,work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation,an employee must not unreasonably fail to comply with a direction by the employer to perform work,whether at the same or another workplace,that is safe and appropriate for the employee to perform.

Part 3—Types of Employment and Termination of Employment

10. Types of employment

11. Termination of employment

12. Redundancy

10. Types of employment

[Varied by PR529165]

10.1 General

    (a) Employees will be employed in one of the following categories:

      (i) full-time employees;

      (ii) part-time employees;or

      (iii) casual employees.

    (b) At the time of engagement an employer will inform each employee of the terms of their engagement and in particular whether they are to be full-time,part-time or casual employees.

10.2 Full-time employment

    An employer may employ an employee on a full-time basis of 38 hours per week.

10.3 Casual employment

    (a) A casual employee is an employee engaged as such.

[10.3(b) varied by PR529165 ppc 27Sep12]

    (b) A casual employee working within the ordinary hours of work pursuant to clause 18 will be paid per hour for the work performed plus 25% loading which incorporates the casual employees’entitlements to annual leave,annual leave loading and any other rates and allowances contained in this award except overtime and shift allowances.

    (c) Casual employees must be paid at the termination of each engagement,but may agree to be paid weekly or fortnightly.

    (d) On each occasion a casual employee is required to attend work they are entitled to a minimum payment for three hours work.

10.4 Part-time employees

    (a) An employer may employ part-time employees in any classification in this award.

    (b) A part-time employee is an employee who:

      (i) has reasonably predictable hours of work;and

      (ii) receives on a pro rata basis equivalent pay and conditions to those of full-time employees who do the same kind of work.

    (c) At the time of engagement the employer and the part-time employee will agree in writing,on a regular pattern of work,specifying at least the hours worked each day,which days of the week the employee will work and the actual starting and finishing times each day.

    (d) Any agreed variation to the regular pattern of work will be recorded in writing.

    (e) An employee is required to roster a regular part-time employee for a minimum of two consecutive hours on any shift.

    (f) An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee will be paid as a casual employee.

    (g) All time worked in excess of the hours as mutually arranged,excluding any additional hours,will be overtime.

    (h) A regular part-time employee employed under the provisions of this clause must be paid for ordinary hours worked on a pro rata basis of the full-time employee at the full-time employee rate.

    (i) All leave accruals and separation entitlements of part-time employees will be calculated and paid on a pro rata basis of the full-time employee at the full-time rate of pay.

    (j) Where an employee and their employer agree in writing,part-time employment may be converted to full-time and vice versa. If such an employee transfers from full-time to part-time (or vice versa),all accrued award and legislative entitlements will be maintained. Following transfer to part-time employment accrual will occur in accordance with the provisions relevant to part-time employment.

11. Termination of employment

11.1 Notice of termination is provided for in the NES.

11.2 Notice of termination by an employee

    The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES,an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.

11.3 Job search entitlement

    Where an employer has given notice of termination to an employee,an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.

11.4 Return to place of engagement

    If the employment of any employee is terminated by the employer elsewhere than at the place of engagement,for any reason other than misconduct,the employer will be responsible for conveying the employee to the place of engagement.

12. Redundancy

[Varied by PR994513,PR503671,PR561478]

12.1 Redundancy pay is provided for in the NES.

12.2 Transfer to lower paid duties

    Where an employee is transferred to lower paid duties by reason of redundancy,the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may,at the employer’s option,make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.

12.3 Employee leaving during notice period

    An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice,but is not entitled to payment instead of notice.

12.4 Job search entitlement

    (a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.

    (b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment,the employee must,at the request of the employer,produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.

    (c) This entitlement applies instead of clause 11.3.

12.5 Transitional provisions –NAPSA employees

[12.5 varied by PR994513;renamed by PR503671;deleted by PR561478 ppc 05Mar15]

12.6 Transitional provisions –Division 2B State employees

[12.6 inserted by PR503671;deleted by PR561478 ppc 05Mar15]

Part 4—Minimum Wages and Related Matters

13. Minimum wages

14. Allowances

15. Accident pay

16. Payment of wages

17. Superannuation

13. Minimum wages

[Varied by PR997945,PR509083,PR522914,PR536717,PR551640,PR566726,PR579822, PR592150]

[13.1 varied by PR997945,PR509083,PR522914,PR536717,PR551640,PR566726,PR579822,PR592150 ppc 01Jul17]

13.1 The minimum rates for each classification will be:

    Classification

    Minimum weekly rate
    $

    Master

    947.70

    Mate

    902.60

    Engineer

    902.60

    General Purpose Hand,Deckhand,Greaser,Passenger Attendant,Turnstile Attendant,Boating Attendant,Host,Fireman,Trimmer,Linesman,Cook,Sailor,Able Seaman,Leading Hand

    854.20

    Shipkeeper

    783.10

    Crane Driver (under 20 tonnes)

    797.00

    Crane Driver (over 20 tonnes)

    877.50

   

14. Allowances

To view the current monetary amounts of work-related allowances refer to the Allowances Sheet.

[Varied by PR994513,PR998176,PR509205,PR523035,PR529165,PR536838,PR551761,PR566862,PR579556,PR592312]

14.1 Bedding and other utensils

    (a) When vessels are away during the night,the employer will supply a mattress,two blankets,two sheets,one pillow,one pillow slip,towel,soap,eating utensils,washing cloths and drying towels. Laundering to be the responsibility of the employer.

    (b) On termination of employment an employee will be required to return to the employer all articles on issue to them.

14.2 Charge hands

    Charge hands will be paid an allowance of 3.26% of the standard rate per week. Charge hands not directly supervised by a foreman in the allocation of duties to employees will be paid an allowance of 4.85% of the standard rate per week.

14.3 Distant work

    (a) A relieving employee other than a casual employee who is required to work at a place away from their normal place of work will be paid all additional fares involved and additional travelling time involved at the rate of single time;provided that no employee will be paid more than their ordinary day’s wages for any time not exceeding 24 hours spent travelling.

    (b) A relieving employee including a casual employee who is temporarily transferred to a locality to carry out relieving duties,where it is necessary to sleep away from their home,will be provided with reasonable board and lodging or paid an allowance of 56.23% of the standard rate per week of seven days. In the case of broken parts of a week,the allowance will be all living expenses actually and reasonably incurred but not exceeding the rate of 8.00% of the standard rate per day.

14.4 Dual capacity allowance

    An employee who is a holder of a Certificate of Competency as a Marine Motor Engineer will be paid an allowance of 0.58% of the standard rate for each day or part of a day during which they are required to use such a certificate. The allowance prescribed by this subclause will,when paid,be deemed to be part of the ordinary rate of wages for the purpose of calculating overtime,annual leave,sick leave and long service leave.

14.5 Protective clothing

    On request an employee will be supplied by the employer with an oilskin,sou’wester,sea boots,overalls,gloves,hard hats,sunscreen lotion,safety glasses,safety shoes,sunglasses and ear protection devices for their own use when it is reasonably necessary to wear such protective clothing.

14.6 Uniforms

[14.6 varied by PR994513 from 01Jan10]

    Where employees are required to wear uniforms,these will be provided by the employer at no cost to the employee or,instead thereof,the employer will pay to the employee the sum of 2.01% of the standard rate per week. Such uniforms will be laundered by the employer.

14.7 Compensation for loss of personal effects

    If in the course of employment an employee should sustain damage to or loss of their personal effects by fire,explosion,foundering,shipwreck,collision,stranding or accident and where such damage was not caused by the employee’s own wilful neglect or fault or where such articles are lost through breaking or entering whilst securely stored at the employer’s direction in a room or building on the employer’s premises,vessel or work shop,the employer will compensate the employee to the extent of the damage or loss to a maximum of 210.30% of the standard rate.

14.8 Dirty work

    (a) An employee called upon to perform work which is more dirty or offensive than would normally apply will be paid an additional 0.07% of the standard rate per hour for the time spent on such work.

[14.8(b) varied by PR529165 ppc 27Sep12]

    (b) Provided that,instead of the above allowance,for all work an employee is required to perform alongside vessels in discharging alumina,petroleum,coke,sulphur,anhydrous ammonia and all phosphates,the employee will be paid an allowance of 0.18% of the standard rate per hour. Such employee will be eligible for this payment from the time the barge ties up to the vessel until the time it returns to its berth at the completion of the bunker.

14.9 Wet work

    (a) Any employee working in water or wet places will be paid an extra allowance of 0.03% of the standard rate per hour.

[14.9(b) varied by PR529165 ppc 27Sep12]

    (b) Wet places mean places where,in the performance of the work,the splashing of water or mud saturates the employee’s clothing,or where protection is not provided to prevent splashing or dripping sufficient to saturate their clothing,and will include wet material or wet ground in which it is impracticable for the employee wearing ordinary working boots to work without getting wet feet. Provided this clause will not apply to employees working on natural surfaces made wet by rain.

14.10 Unloading and loading garbage allowance

    An employee called upon to work at loading or unloading garbage and or ashes or other like material will be paid an allowance of 0.07% of the standard rate per hour.

14.11 Slipway etc. allowance

    A junior employee called to work on slipways,cleaning,scraping,painting or overhauling launches,barges,punts or any other floating plant will be paid an allowance of 0.08% of the standard rate per hour.

14.12 Bilge allowance

    An employee required to work in the bilges will be paid an allowance of 0.11% of the standard rate per hour.

14.13 Chipping hammers

    Employees using electric or pneumatic chipping hammers,wire brushing machine and sandblasting machine will be paid at the rate of 0.01% of the standard rate per hour in addition to any other ordinary or overtime rate for the time so occupied. Where a chipping hammer is being used in a confined space,suitable ventilation will be installed,if practicable,before work commences.

14.14 Expenses

    The employer will reimburse an employee any expenses reasonably incurred by them in the service or interest of the employer,provided the employee is able to prove such expense by way of receipts.

14.15 First aid

    An employee on becoming qualified as the holder of appropriate first aid qualifications such as a certificate from the St John Ambulance or its equivalent,and who is required by the employer to perform first aid duty will be paid an allowance of 1.70% of the standard rate per week.

14.16 Loading and discharge of cargo and supplies

    An employee directed by the employer to load or discharge cargo including personal belongings of passengers,foodstuffs,beverages,or laundry,will be paid allowances as set out below when so engaged.

    (a) On vessels including barges and landing craft transporting passengers and cargo including fuel and or water and roll on/roll off cargoes between the mainland and island resorts:

      (i) 2.99% of the standard rate per week of five working days;and

      (ii) where an employee is so engaged in any week in excess of five days they will be paid an additional 0.61% of the standard rate per day.

    (b) On vessels (including barges and landing craft) transporting cargo only between the mainland and island resorts or between island resorts 5.23% of the standard rate per trip.

    (c) On vessels engaged in overnight cruises one to six nights 2.01% of the standard rate per trip.

    (d) On vessels engaged in overnight cruises over six nights 3.00% of the standard rate per trip.

    (e) Provided that:

      (i) an additional amount will not be payable where the loading or discharge is restricted to ships stores,fuel and or water cargoes,incidental personal belongings of passengers,or other items required on board exclusively for a day cruise;and

      (ii) an employee may be required to supervise the loading or discharge (including roll on/roll off cargoes) where such work is part of their normal duties,without additional payment.

14.17 Meal allowances

[14.17 varied by PR994513 ppc 01Jan10,PR998176,PR509205,PR523035,PR536838, PR551761,PR566862,PR579556,PR592312 ppc 01Jul17]

    When an employee is required to work overtime in excess of one and a half hours after the usual ceasing time,without being notified the previous day,the employee will be provided with a suitable meal or be paid $16.28 instead. Should such overtime work continue for a further four hours,the employee will be provided with a second meal or be paid $16.28.

14.18 Waiting orders

    An employee who is required by their employer to telephone for orders will:

    (a) if an employee has a telephone installed at their home,be paid the annual rental of such telephone plus 16.51% of the standard rate per year for calls necessarily incurred by the employee for ringing for such orders. If the employee is required by their employer to have a phone installed,the installation fee will be paid by the employer;or

    (b) an off-duty employee required to ring for orders other than on a phone provided totally or in part by the employer,will receive an allowance of 0.42% of the standard rate for each call.

14.19 Tools

    Where employees are required to provide and use their own tools the employer will be responsible for the replacement of such tools broken,worn out,lost or stolen in the course of employment.

14.20 Towing

    (a) Employees on any vessel either towing or carrying explosives will be paid an additional 0.29% of the standard rate for each day or part thereof while so engaged. This rate will be treated as part of the wages for all purposes of this award. For the purposes of this subclause,explosives means any material used as an explosive,such as gunpowder,blasting powder or materials,or any other material of like nature,but does not include petroleum products.

    (b) Masters engaged in towing non self-propelled bunker barges having a carrying capacity of 400 tonnes or more,will be paid an additional amount of 0.27% of the standard rate for each day or part thereof while so engaged. Provided that moving such bunker barges at terminal points is not regarded as towing within this provision. This rate will be treated as part of the wages for all purposes of this award.

    (c) Employees on vessels proceeding beyond the limits of a harbour,river or bay will whilst so engaged be paid their normal wage plus an allowance of 25% of their normal wage for each day with a minimum payment for four hours.

14.21 Ships stranded or wrecked or on fire

    (a) If a ship in the course of a voyage becomes wrecked or stranded and the employees are called on for special efforts while the ship is still wrecked or stranded they will,for the time during which they so assist,be paid 1.71% of the standard rate per hour.

    (b) For the purposes of this clause a ship will be deemed to be wrecked if,while at sea,it is so disabled it becomes a dangerous crisis and unable for the time being to continue its voyage in the ordinary course of its operations.

    (c) Where a ship grounds in a tidal river or harbour and is refloated by ordinary means,with or without cargo,and without special work such as laying out anchors and handling hawsers being required of the employees,it will not be deemed to be wrecked or stranded within the meaning of clause 14.21(b).

14.22 Transport

    (a) Where an employee commences or finishes work or is required for call-out between the hours of 11.00 pm and 6.00 am the employer will:

      (i) supply them with a conveyance to or from their home whichever is appropriate;

      (ii) pay them for time spent in reaching their home or travelling there from at the employee’s minimum weekly rate with a minimum of half an hour and a maximum of one hour;or

[14.22(a)(iii) varied by PR523035,PR536838, PR551761 ppc 01Jul14]

      (iii) if by arrangement with their employer the employee uses their own motor vehicle they will receive an allowance of not less than $0.78 per kilometre.

[14.22(b) varied by PR523035,PR536838, PR551761 ppc 01Jul14]

    (b) An employee required to use their own vehicle to travel to or from a starting or finishing point other than their regular starting or finishing point will be paid for the distance and time in excess of the distance or time involved in getting to their normal starting or finishing point,$0.78 per kilometre for the excess distance travelled and will be paid at their minimum weekly rate for the excess time occupied in travelling with a minimum of half an hour and a maximum of one hour.

    (c) An employee not required to use their own motor vehicle and should in the ordinary course of employment begin their work for the day at a particular place,is required to finish work at a place other than that particular place will be paid any reasonable travelling expenses and will also be paid at overtime rates of pay for any travelling time occasioned beyond their ordinary travelling time.

14.23 Travelling to another port

    (a) When an employee is required to travel from their home port to another port,time spent outside of their ordinary hours will be paid for as travelling time.

    (b) The rate of pay for travelling time will be ordinary rates,except on Sundays and public holidays when it will be time and a half.

    (c) The maximum travelling time to be paid for will be eight hours on any one day.

14.24 Travelling expenses

    Where an employee is required to join or leave a vessel at a place other than their place of engagement,they will be entitled to a free passage and to be reimbursed all out of pocket expenses reasonably incurred by them. The free passage if by rail will be first class and will include a sleeping berth when the train includes sleeping berth accommodation. The free passage if by air is to be in commercial aircraft,first class if available.

14.25 Loading for duties outside normal work

    An amount of 0.55% of the standard rate per day will be paid in excess of other wages and allowances to employees,for each day they are required to perform the duties of diving to clean glass bottom boats or to clear obstructions from boats propellers.

14.26 Living away from home

    (a) Whilst away from the vessel’s home port,an employer will provide the employee with proper meals and accommodation and be responsible for payment of reasonable expenses actually incurred for such meals and accommodation ashore.

    (b) Whilst at sea,every employee will be provided with proper meals,attendance,bedding and soap,and be supplied once a week with clean bed linen and twice a week with clean towels. The employer will be responsible for the laundering of linen and towels.

    (c) Where it is the employer’s responsibility to provide the employee with proper meals and accommodation ashore,and the employer fails to do so,the employer will reimburse the employee for all costs incurred in relation to normal meals and charges incurred for a good standard of accommodation.

    (d) Tea,sugar,milk and coffee will be provided on all vessels for employees at the employer’s expense.

14.27 Higher duties

    An employee engaged for more than two hours during one day on duties carrying a higher rate than their ordinary classification will be paid the higher rate for such day. If engaged for two hours or less during one day they will be paid the higher rate for the time so worked.

14.28 Adjustment of expense related allowances

    (a) At the time of any adjustment to the standard rate,each expense related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.

    (b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0),as follows:

    Allowance

    Applicable Consumer Price Index figure

    Meal allowance

    Take away and fast foods sub-group

    Vehicle allowance

    Private motoring sub-group

   

15. Accident pay

[Varied by PR994513,PR503671;deleted by PR561478 ppc 05Mar15]

16. Payment of wages

Wages will be paid weekly or fortnightly. Wages may be paid by cash or electronic funds transfer (EFT).

17. Superannuation

[Varied by PR994513,PR546026]

17.1 Superannuation legislation

    (a) Superannuation legislation,including the Superannuation Guarantee (Administration) Act 1992 (Cth),the Superannuation Guarantee Charge Act 1992 (Cth),the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth),deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund,any superannuation fund nominated in the award covering the employee applies.

    (b) The rights and obligations in these clauses supplement those in superannuation legislation.

17.2 Employer contributions

    An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.

17.3 Voluntary employee contributions

    (a) Subject to the governing rules of the relevant superannuation fund,an employee may,in writing,authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 17.2.

    (b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of three months’written notice to their employer.

    (c) The employer must pay the amount authorised under clauses 17.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 17.3(a) or (b) was made.

17.4 Superannuation fund

[17.4 varied by PR994513 from 01Jan10]

    Unless,to comply with superannuation legislation,the employer is required to make the superannuation contributions provided for in clause 17.2 to another superannuation fund that is chosen by the employee,the employer must make the superannuation contributions provided for in clause 17.2 and pay the amount authorised under clauses 17.3(a) or (b) to one of the following superannuation funds or its successor:

    (a) Maritime Super;

    (b) AMP Superannuation Savings Trust;

[17.4(c) varied by PR546026 ppc 01Jan14]

    (c) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008,provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector scheme;or

[17.4(d) inserted by PR546026 ppc 01Jan14]

    (d) a superannuation fund or scheme which the employee is a defined benefit member of.

Part 5—Hours of Work and Related Matters

18. Ordinary hours of work and rostering

19. Breaks

20. Overtime and penalty rates

21. Shiftwork

18. Ordinary hours of work and rostering

18.1 This clause supplements Division 3 of the NES which deals with maximum weekly hours.

18.2 Span of hours

    Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day,Monday to Friday inclusive.

18.3 Rostering

    Rostered days off will be so arranged that in each week two of such days will be consecutive except where the employer and the employee agree otherwise.

18.4 Avoidance of physical exhaustion

    (a) An employee who has been on duty continuously,including meal breaks,for more than 18 hours will not be required by their employer to continue duty until they have had,for the purpose of rest,a period of 10 hours off duty.

    (b) Should an employee work at the request of the employer after they have been on duty continuously,including meal breaks for more than 18 hours,they will be entitled to be paid at the rate of double time for the period of such duty in addition to any other payment due to them until such time as the 10 hours’respite from duty commences.

    (c) Employees will receive their full weekly rate notwithstanding any rest period occurring in ordinary working hours.

19. Breaks

[Varied by PR994513]

19.1 An employee will not be required to work for more than five hours without a break for a meal.

    (a) Breakfast

[19.1(a) varied by PR994513 from 01Jan10]

      Breakfast is the hour preceding the usual starting time. The breakfast break will not be taken when employees are required to commence at 7.00 am or after,and preceding the usual starting time.

      (i) By mutual agreement between the employer and employees concerned,a 20 minutes rest period may be taken without deduction of pay instead of the prescribed hour for breakfast. This rest period will commence 20 minutes before the usual starting time unless otherwise mutually agreed.

      (ii) Employees ordered in to dock or shift a vessel at 7.00 am will not be entitled to a meal break before noon,but if ordered in at any time before 7.00 am they will have an hour for breakfast not later than 8.00 am or a rest period of 20 minutes as provided above.

    (b) Lunch

      Lunch is from noon to 12.45 pm or such period as is the usual custom of the establishment at which the employees are employed.

    (c) Tea

[19.1(c) substituted by PR994513 from 01Jan10]

      (i) Tea is from 5.00 pm to 6.00 pm or according to the usual custom of the establishment at which the employees are employed. Provided that by mutual agreement between the employer and employee concerned a rest period may be taken.

      (ii) The times prescribed above may be altered by mutual agreement between the employer and employee concerned.

19.2 Double time will be paid for all work done during the breakfast,lunch and tea breaks specified above,such double time to continue until the employees are granted a meal break or are released from duty. This provision has no application to establishments or jobs where,in accordance with this clause,it is customary for paid rest periods to be taken instead of the breakfast and or tea breaks,and such rest periods are allowed and taken.

20. Overtime and penalty rates

[Varied by PR585481]

20.1 Employees will be entitled to be paid:

    (a) a loading of 50% of the ordinary hourly base rate of pay for the first three hours,and 100% of the ordinary hourly base rate of pay thereafter for any time worked outside of ordinary hours on a Monday to Friday,except for public holidays;

    (b) a loading of 50% of the ordinary hourly base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday;and

    (c) a minimum of four hours if recalled to work overtime after leaving the employer’s premises.

20.2 Time off instead of payment for overtime

[20.2 substituted by PR585481 ppc 16Sep16]

    (a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

    (b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 20.2.

    (c) An agreement must state each of the following:

      (i) the number of overtime hours to which it applies and when those hours were worked;

      (ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

      (iii) that,if the employee requests at any time,the employer must pay the employee,for overtime covered by the agreement but not taken as time off,at the overtime rate applicable to the overtime when worked;

      (iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.

      Note:An example of the type of agreement required by this clause is set out at Schedule C. There is no requirement to use the form of agreement set out at Schedule C. An agreement under clause 20.2 can also be made by an exchange of emails between the employee and employer,or by other electronic means.

    (d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

      EXAMPLE:By making an agreement under clause 20.2 an employee who worked 2 overtime hours is entitled to 2 hours’time off.

    (e) Time off must be taken:

      (i) within the period of 6 months after the overtime is worked;and

      (ii) at a time or times within that period of 6 months agreed by the employee and employer.

    (f) If the employee requests at any time,to be paid for overtime covered by an agreement under clause 20.2 but not taken as time off,the employer must pay the employee for the overtime,in the next pay period following the request,at the overtime rate applicable to the overtime when worked.

    (g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e),the employer must pay the employee for the overtime,in the next pay period following those 6 months,at the overtime rate applicable to the overtime when worked.

    (h) The employer must keep a copy of any agreement under clause 20.2 as an employee record.

    (i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make,or not make,an agreement to take time off instead of payment for overtime.

    (j) An employee may,under section 65 of the Act,request to take time off,at a time or times specified in the request or to be subsequently agreed by the employer and the employee,instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 20.2 will apply,including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

      Note:If an employee makes a request under section 65 of the Act for a change in working arrangements,the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

    (k) If,on the termination of the employee’s employment,time off for overtime worked by the employee to which clause 20.2 applies has not been taken,the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

      Note:Under section 345(1) of the Act,a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 20.2.

20.3 Sunday work

    An employee will be paid a loading of 100% of the ordinary hourly base rate of pay for any hours,ordinary and overtime,worked on a Sunday.

20.4 Public holidays

    An employee will be paid a loading of 150% of the ordinary hourly base rate of pay,or any hours,ordinary and overtime,worked on a public holiday.

21. Shiftwork

[Varied by PR994513]

21.1 The following shifts may be worked:

    (a) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;

    (b) continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer;

    (c) night shift means any shift finishing subsequent to midnight and at or before 8.00 am;

    (d) permanent night shift employee means an employee who:

      (i) during a period of engagement on shift,works night shift only;

      (ii) remains on night shift for a period longer than four consecutive weeks;or

[21.1(d)(iii) varied by PR994513 from 01Jan10]

      (iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one third of their working time off night shift in each shift cycle during such engagement period or cycle.

21.2 Shiftwork rates

    Type of shift

    Percentage of the ordinary time rate

     

    %

    Afternoon shift

    115

    Night shift

    115

    Permanent night shift

    130

   

Part 6—Leave and Public Holidays

22. Annual leave

23. Personal/carer’s leave and compassionate leave

24. Community service leave

25. Public holidays

22. Annual leave

[Varied by PR994513,PR588737]

22.1 The following provisions supplement the NES.

22.2 Annual leave loading

    A loading of 17.5% (20% for shiftworkers) is payable in addition to the payment for the leave.

22.3 Shiftworkers

    For the purpose of Division 6 of the NES a shiftworker is an employee employed on shiftwork where three shifts per day are worked over a period of seven days per week or an employee regularly rostered to work on Sundays and public holidays.

22.4 Requirement to take annual leave

[22.4 varied by PR994513;deleted by PR588737 ppc 20Dec16]

22.5 Annual leave in advance

[22.5 inserted by PR588737 ppc 20Dec16]

    (a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.

    (b) An agreement must:

      (i) state the amount of leave to be taken in advance and the date on which leave is to commence;and

      (ii) be signed by the employer and employee and,if the employee is under 18 years of age,by the employee’s parent or guardian.

      Note:An example of the type of agreement required by clause 22.5 is set out at Schedule D. There is no requirement to use the form of agreement set out at Schedule D.

    (c) The employer must keep a copy of any agreement under clause 22.5 as an employee record.

    (d) If,on the termination of the employee’s employment,the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 22.5,the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

22.6 Cashing out of annual leave

[22.6 inserted by PR588737 ppc 20Dec16]

    (a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 22.6.

    (b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 22.6.

    (c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.

    (d) An agreement under clause 22.6 must state:

      (i) the amount of leave to be cashed out and the payment to be made to the employee for it;and

      (ii) the date on which the payment is to be made.

    (e) An agreement under clause 22.6 must be signed by the employer and employee and,if the employee is under 18 years of age,by the employee’s parent or guardian.

    (f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.

    (g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.

    (h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.

    (i) The employer must keep a copy of any agreement under clause 22.6 as an employee record.

    Note 1:Under section 344 of the Fair Work Act,an employer must not exert undue influence or undue pressure on an employee to make,or not make,an agreement under clause 22.6.

    Note 2:Under section 345(1) of the Fair Work Act,a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 22.6.

    Note 3:An example of the type of agreement required by clause 22.6 is set out at Schedule E. There is no requirement to use the form of agreement set out at Schedule E.

22.7 Excessive leave accruals:general provision

[22.7 inserted by PR588737 ppc 20Dec16]

    Note:Clauses 22.7 to 22.9 contain provisions,additional to the National Employment Standards,about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2,Division 6 of the Fair Work Act.

    (a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’paid annual leave (or 10 weeks’paid annual leave for a shiftworker,as defined by clause 22.3).

    (b) If an employee has an excessive leave accrual,the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.

    (c) Clause 22.8 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

    (d) Clause 22.9 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

22.8 Excessive leave accruals:direction by employer that leave be taken

[22.8 inserted by PR588737 ppc 20Dec16]

    (a) If an employer has genuinely tried to reach agreement with an employee under clause 22.7(b) but agreement is not reached (including because the employee refuses to confer),the employer may direct the employee in writing to take one or more periods of paid annual leave.

    (b) However,a direction by the employer under paragraph (a):

      (i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid annual leave arrangements (whether made under clause 22.7,22.8 or 22.9 or otherwise agreed by the employer and employee) are taken into account;and

      (ii) must not require the employee to take any period of paid annual leave of less than one week;and

      (iii) must not require the employee to take a period of paid annual leave beginning less than 8 weeks,or more than 12 months,after the direction is given;and

      (iv) must not be inconsistent with any leave arrangement agreed by the employer and employee.

    (c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.

    (d) An employee to whom a direction has been given under paragraph (a) may request to take a period of paid annual leave as if the direction had not been given.

    Note 1:Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 22.8(b)(i).

    Note 2:Under section 88(2) of the Fair Work Act,the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

22.9 Excessive leave accruals:request by employee for leave

[22.9 inserted by PR588737 ppc 20Dec16]

    (a) Clause 22.9 comes into operation from 20 December 2017.

    (b) If an employee has genuinely tried to reach agreement with an employer under clause 22.7(b) but agreement is not reached (including because the employer refuses to confer),the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.

    (c) However,an employee may only give a notice to the employer under paragraph (b) if:

      (i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice;and

      (ii) the employee has not been given a direction under clause 22.8(a) that,when any other paid annual leave arrangements (whether made under clause 22.7,22.8 or 22.9 or otherwise agreed by the employer and employee) are taken into account,would eliminate the employee’s excessive leave accrual.

    (d) A notice given by an employee under paragraph (b) must not:

      (i) if granted,result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than 6 weeks when any other paid annual leave arrangements (whether made under clause 22.7,22.8 or 22.9 or otherwise agreed by the employer and employee) are taken into account;or

      (ii) provide for the employee to take any period of paid annual leave of less than one week;or

      (iii) provide for the employee to take a period of paid annual leave beginning less than 8 weeks,or more than 12 months,after the notice is given;or

      (iv) be inconsistent with any leave arrangement agreed by the employer and employee.

    (e) An employee is not entitled to request by a notice under paragraph (b) more than 4 weeks’paid annual leave (or 5 weeks’paid annual leave for a shiftworker,as defined by clause 22.3) in any period of 12 months.

    (f) The employer must grant paid annual leave requested by a notice under paragraph (b).

23. Personal/carer’s leave and compassionate leave

Personal/carer’s leave and compassionate leave are provided for in the NES.

24. Community service leave

Community service leave is provided for in the NES.

25. Public holidays

25.1 Public holidays are provided for in the NES.

25.2 An employee will be paid at the rate of double time and a half with a minimum of four hours work when required to work on a public holiday.

Schedule A—Transitional Provisions

[Varied by PR991560,PR503671]

A.1 General

A.1.1 The provisions of this schedule deal with minimum obligations only.

A.1.2 The provisions of this schedule are to be applied:

    (a) when there is a difference,in money or percentage terms,between a provision in a relevant transitional minimum wage instrument (including the transitional default casual loading) or award-based transitional instrument on the one hand and an equivalent provision in this award on the other;

    (b) when a loading or penalty in a relevant transitional minimum wage instrument or award-based transitional instrument has no equivalent provision in this award;

    (c) when a loading or penalty in this award has no equivalent provision in a relevant transitional minimum wage instrument or award-based transitional instrument;or

    (d) when there is a loading or penalty in this award but there is no relevant transitional minimum wage instrument or award-based transitional instrument.

A.2 Minimum wages - existing minimum wage lower

A.2.1 The following transitional arrangements apply to an employer which,immediately prior to 1 January 2010:

    (a) was obliged,

    (b) but for the operation of an agreement-based transitional instrument or an enterprise agreement would have been obliged,or

    (c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged

    by a transitional minimum wage instrument and/or an award-based transitional instrument to pay a minimum wage lower than that in this award for any classification of employee.

A.2.2 In this clause minimum wage includes:

    (a) a minimum wage for a junior employee,an employee to whom training arrangements apply and an employee with a disability;

    (b) a piecework rate;and

    (c) any applicable industry allowance.

A.2.3 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.

A.2.4 The difference between the minimum wage for the classification in this award and the minimum wage in clause A.2.3 is referred to as the transitional amount.

A.2.5 From the following dates the employer must pay no less than the minimum wage for the classification in this award minus the specified proportion of the transitional amount:

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

A.2.6 The employer must apply any increase in minimum wages in this award resulting from an annual wage review.

A.2.7 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

A.3 Minimum wages - existing minimum wage higher

A.3.1 The following transitional arrangements apply to an employer which,immediately prior to 1 January 2010:

    (a) was obliged,

    (b) but for the operation of an agreement-based transitional instrument or an enterprise agreement would have been obliged,or

    (c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged

    by a transitional minimum wage instrument and/or an award-based transitional instrument to pay a minimum wage higher than that in this award for any classification of employee.

A.3.2 In this clause minimum wage includes:

    (a) a minimum wage for a junior employee,an employee to whom training arrangements apply and an employee with a disability;

    (b) a piecework rate;and

    (c) any applicable industry allowance.

A.3.3 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.

A.3.4 The difference between the minimum wage for the classification in this award and the minimum wage in clause A.3.3 is referred to as the transitional amount.

A.3.5 From the following dates the employer must pay no less than the minimum wage for the classification in this award plus the specified proportion of the transitional amount:

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

A.3.6 The employer must apply any increase in minimum wages in this award resulting from an annual wage review. If the transitional amount is equal to or less than any increase in minimum wages resulting from the 2010 annual wage review the transitional amount is to be set off against the increase and the other provisions of this clause will not apply.

A.3.7 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

A.4 Loadings and penalty rates

    For the purposes of this schedule loading or penalty means a:

    ●casual or part-time loading;

    ●Saturday,Sunday,public holiday,evening or other penalty;

    ●shift allowance/penalty.

A.5 Loadings and penalty rates - existing loading or penalty rate lower

A.5.1 The following transitional arrangements apply to an employer which,immediately prior to 1 January 2010:

    (a) was obliged,

    (b) but for the operation of an agreement-based transitional instrument or an enterprise agreement would have been obliged,or

    (c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged

    by the terms of a transitional minimum wage instrument or an award-based transitional instrument to pay a particular loading or penalty at a lower rate than the equivalent loading or penalty in this award for any classification of employee.

A.5.2 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the loading or penalty in the relevant transitional minimum wage instrument or award-based transitional instrument for the classification concerned.

A.5.3 The difference between the loading or penalty in this award and the rate in clause A.5.2 is referred to as the transitional percentage.

A.5.4 From the following dates the employer must pay no less than the loading or penalty in this award minus the specified proportion of the transitional percentage:

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

A.5.5 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

A.6 Loadings and penalty rates - existing loading or penalty rate higher

A.6.1 The following transitional arrangements apply to an employer which,immediately prior to 1 January 2010:

    (a) was obliged,

    (b) but for the operation of an agreement-based transitional instrument or an enterprise agreement would have been obliged,or

    (c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged

    by the terms of a transitional minimum wage instrument or an award-based transitional instrument to pay a particular loading or penalty at a higher rate than the equivalent loading or penalty in this award,or to pay a particular loading or penalty and there is no equivalent loading or penalty in this award,for any classification of employee.

A.6.2 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the loading or penalty in the relevant transitional minimum wage instrument or award-based transitional instrument.

A.6.3 The difference between the loading or penalty in this award and the rate in clause A.6.2 is referred to as the transitional percentage. Where there is no equivalent loading or penalty in this award,the transitional percentage is the rate in A.6.2.

A.6.4 From the following dates the employer must pay no less than the loading or penalty in this award plus the specified proportion of the transitional percentage:

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

A.6.5 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

A.7 Loadings and penalty rates - no existing loading or penalty rate

A.7.1 The following transitional arrangements apply to an employer not covered by clause A.5 or A.6 in relation to a particular loading or penalty in this award.

A.7.2 Prior to the first full pay period on or after 1 July 2010 the employer need not pay the loading or penalty in this award.

A.7.3 From the following dates the employer must pay no less than the following percentage of the loading or penalty in this award:

    First full pay period on or after

    %

    1 July 2010

    20

    1 July 2011

    40

    1 July 2012

    60

    1 July 2013

    80

A.7.4 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.

A.8 Former Division 2B employers

[A.8 inserted by PR503671 ppc 01Jan11]

A.8.1 This clause applies to an employer which,immediately prior to 1 January 2011,was covered by a Division 2B State award.

A.8.2 All of the terms of a Division 2B State award applying to a Division 2B employer are continued in effect until the end of the full pay period commencing before 1 February 2011.

A.8.3 Subject to this clause,from the first full pay period commencing on or after 1 February 2011 a Division 2B employer must pay no less than the minimum wages,loadings and penalty rates which it would be required to pay under this Schedule if it had been a national system employer immediately prior to 1 January 2010.

A.8.4 Despite clause A.8.3,where a minimum wage,loading or penalty rate in a Division 2B State award immediately prior to 1 February 2011 was lower than the corresponding minimum wage,loading or penalty rate in this award,nothing in this Schedule requires a Division 2B employer to pay more than the minimum wage,loading or penalty rate in this award.

A.8.5 Despite clause A.8.3,where a minimum wage,loading or penalty rate in a Division 2B State award immediately prior to 1 February 2011 was higher than the corresponding minimum wage,loading or penalty rate in this award,nothing in this Schedule requires a Division 2B employer to pay less than the minimum wage,loading or penalty rate in this award.

A.8.6 In relation to a Division 2B employer this Schedule commences to operate from the beginning of the first full pay period on or after 1 January 2011 and ceases to operate from the beginning of the first full pay period on or after 1 July 2014.

Schedule B—2017 Part-day Public Holidays

[Sched B inserted by PR532631 ppc 23Nov12;renamed and varied by PR544519 ppc 21Nov13;renamed and varied by PR557581,PR573679,PR580863,PR598110 ppc 04Dec17]

This schedule operates in conjunction with award provisions dealing with public holidays.

B.1 Where a part-day public holiday is declared or prescribed between 7.00 pm and midnight on Christmas Eve (24 December 2017) or New Year’s Even (31 December 2017) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

    (a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

    (b) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight but as a result of exercising their right under the NES does not work,they will be paid their ordinary rate of pay for such hours not worked.

    (c) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight but as a result of being on annual leave does not work,they will be taken not to be on annual leave between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

    (d) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00 pm and midnight,but as a result of having a rostered day off (RDO) provided under this award,does not work,the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

    (e) Excluding annualised salaried employees to whom clause B.1(f) applies,where an employee works any hours between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

    (f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday,they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked between 7.00 pm and midnight.

    (g) An employee not rostered to work between 7.00 pm and midnight,other than an employee who has exercised their right in accordance with clause B.1(a),will not be entitled to another day off,another day’s pay or another day of annual leave as a result of the part-day public holiday.

    (h) Nothing in this schedule affects the right of an employee and employer to agree to substitute public holidays.

This schedule is not intended to detract from or supplement the NES.

This schedule is an interim provision and subject to further review.

Schedule C—Agreement for Time Off Instead of Payment for Overtime

[Sched C inserted by PR585481 ppc 16Sep16]

Link to PDF copy of Agreement for Time Off Instead of Payment for Overtime.

Name of employee:_____________________________________________

Name of employer:_____________________________________________

The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:

Date and time overtime started:___/___/20___ ____ am/pm

Date and time overtime ended:___/___/20___ ____ am/pm

Amount of overtime worked:_______ hours and ______ minutes

The employer and employee further agree that,if requested by the employee at any time,the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer
representative:________________________________________

Signature of employer
representative:________________________________________

Date signed:___/___/20___

Schedule D—Agreement to Take Annual Leave in Advance

[Sched D inserted by PR588737 ppc 20Dec16]

Link to PDF copy of Agreement to Take Annual Leave in Advance.

Name of employee:_____________________________________________

Name of employer:_____________________________________________

The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:

The amount of leave to be taken in advance is:____ hours/days

The leave in advance will commence on:___/___/20___

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer representative:________________________________________

Signature of employer representative:________________________________________

Date signed:___/___/20___

[If the employee is under 18 years of age - include:]

I agree that:

if,on termination of the employee’s employment,the employee has not accrued an entitlement to all of a period of paid annual leave already taken under this agreement,then the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.

Name of parent/guardian:________________________________________

Signature of parent/guardian:________________________________________

Date signed:___/___/20___

Schedule E—Agreement to Cash Out Annual Leave

[Sched E inserted by PR588737 ppc 20Dec16]

Link to PDF copy of Agreement to Cash Out Annual Leave.

Name of employee:_____________________________________________

Name of employer:_____________________________________________

The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:

The amount of leave to be cashed out is:____ hours/days

The payment to be made to the employee for the leave is:$_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)

The payment will be made to the employee on:___/___/20___

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer representative:________________________________________

Signature of employer representative:________________________________________

Date signed:___/___/20___

Include if the employee is under 18 years of age:

Name of parent/guardian:________________________________________

Signature of parent/guardian:________________________________________

Date signed:___/___/20___

About this document
(1)
Code:
MA000052
Title:
Ports,Harbours and Enclosed Water Vessels Award 2010
Effective:
4 Dec 2017
Updated:
7 Dec 2017
Instrument Type:
Modern Award
(22)
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
Ports,Harbours and Enclosed Water Vessels Award 2010
(12)
(1)
4 Oct 2016
(20)
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