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Real Estate Industry Award 2020
This Fair Work Commission consolidated modern award incorporates all amendments up to and including 9 April 2024 (PR771381).
Clause(s) affected by the most recent variation(s):
18—Superannuation
Table of Contents
[Varied by PR718141, PR721593, PR742724, PR747457, PR750533]
Schedule E —Agreement to Take Annual Leave in Advance............................................ 55
Schedule G —Agreement for Time Off Instead of Payment for Overtime....................... 57
Part 1—Application and Operation of this Award
1.1 This award is the Real Estate Industry Award 2020.
1.2 This modern award commenced operation on 1 January 2010. The terms of the award have been varied since that date.
1.3 A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the award as it existed prior to that variation.
[Varied by PR733936]
In this award, unless the contrary intention appears:
Act means Fair Work Act 2009 (Cth).
[Definition of casual employee inserted by PR733936 from 27Sep21]
casual employee has the meaning given by section 15A of the Act.
casual hourly rate includes the casual loading which is payable for all purposes.
conjunctional agent fee means the proportion of commission received from a client from a sales or commercial leasing transaction and paid to a real estate agent external to the employer’s business in respect of that transaction.
defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth).
employee means national system employee within the meaning of the Act.
employer means national system employer within the meaning of the Act.
employer’s gross commission for a commission-only employee means the commission received by the employer from a client for a sales or leasing transaction less GST and conjunctional agent fees.
exchange in relation to a real estate sales transaction means that a contract for the sale of a property or business is a legally-enforceable contract.
exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).
existing employee means a person who was employed by the employer prior to 1 January 2010 and who is still employed on 1 January 2010.
junior casual hourly rate is based on a percentage of the appropriate adult rate and includes the casual loading which is payable for all purposes.
junior hourly rate is based on a percentage of the appropriate adult rate in accordance with clause 14.4. Adult rates apply from 21 years of age.
legally-enforceable contract means a contract of sale, lease or agreement to lease that is signed by both the property owner and the intending buyer or lessee.
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).
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.
operational employee means an employee who is engaged under a property sales classification or a property or strata management classification, as defined in Schedule A—Classification Structure and Definitions.
real estate industry has the meaning given in clause 4.2.
real estate law means legislation enacted by a State or Territory government for the purposes of regulating the conduct of the real estate industry.
3. The National Employment Standards and this award
3.1 The National Employment Standards (NES) and this award contain the minimum conditions of employment for employees covered by this award.
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
3.3 The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.
4.1 This industry award covers employers in Australia engaged in the real estate industry in respect to their employees engaged in classifications in clause 14—Minimum rates to the exclusion of any other modern award.
(a) real estate agency;
(b) business and hotel broking;
(c) strata and community title management (or similar service however described);
(d) stock and station agency;
(e) buyers agency; and
(f) real estate valuation.
4.3 This award covers any employer which supplies labour on an on-hire basis in the real estate industry 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. Clause 4.3 operates subject to the exclusions from coverage in this award.
4.4 This award covers employers which provide group training services for trainees engaged in the real estate industry and/or parts of that industry and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.4 operates subject to the exclusions from coverage in this award.
4.5 The award does not cover:
(a) an employee excluded from award coverage by the Act;
(b) 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; or
(c) 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.
4.6 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. Individual flexibility arrangements
5.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:
(a) arrangements for when work is performed; or
(b) overtime rates; or
(c) penalty rates; or
(d) allowances; or
(e) annual leave loading.
5.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.
5.3 An agreement may only be made after the individual employee has commenced employment with the employer.
5.4 An employer who wishes to initiate the making of an agreement must:
(a) give the employee a written proposal; and
(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.
5.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.
5.6 An agreement must do all of the following:
(a) state the names of the employer and the employee; and
(b) identify the award term, or award terms, the application of which is to be varied; and
(c) set out how the application of the award term, or each award term, is varied; and
(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and
(e) state the date the agreement is to start.
5.7 An agreement must be:
(a) in writing; and
5.8 Except as provided in clause 5.7(b), an agreement must not require the approval or consent of a person other than the employer and the employee.
5.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.
5.10 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.
5.11 An agreement may be terminated:
(a) at any time, by written agreement between the employer and the employee; or
NOTE: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in section 144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see section 145 of the Act).
5.12 An agreement terminated as mentioned in clause 5.11(b) ceases to have effect at the end of the period of notice required under that clause.
5.13 The right to make an agreement under clause 5 is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.
6. Requests for flexible working arrangements
[6 substituted by PR763313 ppc 01Aug23]
Requests for flexible working arrangements are provided for in the NES.
NOTE: Disputes about requests for flexible working arrangements may be dealt with under clause 28—Dispute resolution and/or under section 65B of the Act.
7.2 Facilitative provisions in this award are contained in the following clauses:
|
Clause |
Provision |
Agreement between an employer and: |
|
19.2 |
Time off instead of payment for overtime |
An individual |
|
20.7 |
Annual leave in advance |
An individual |
|
20.8 |
Cashing out of annual leave |
An individual |
Part 2—Types of Employment and Classifications
At the time of engagement, the employer must advise the employee in writing of the terms and conditions of their employment, including whether the employee is engaged as a full-time, part-time or casual employee.
A full-time employee is engaged to work an average of 38 ordinary hours per week.
10. Part-time employees
10.1 A part-time employee:
(a) works less than an average 38 hours per week; and
(b) receives, on a pro rata basis, pay and conditions equivalent to those of full-time employees who do the same kind of work.
10.2 Payment for part-time employment
Part-time employees will be paid no less than 1/38th of the minimum weekly rate of pay for their relevant classification for each ordinary hour worked.
[Varied by PR723964, PR733936]
[11.1 deleted by PR733936 from 27Sep21]
[11.2 renumbered as 11.1 by PR733936 from 27Sep21]
11.1 The minimum engagement for a casual employee is 3 hours.
[11.3 renumbered as 11.2 by PR733936 from 27Sep21]
[11.2(a) substituted by PR723964 ppc 20Nov20]
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate for the classification in which they are employed; and
(ii) a loading of 25% of the minimum hourly rate.
(b) The casual loading is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment.
(c) The loading constitutes part of the casual employee’s all‑purpose rate.
[New 11.4 inserted by PR723964 ppc 20Nov20; 11.4 renumbered as 11.3 by PR733936 from 27Sep21]
11.3 When a casual employee works overtime, they must be paid the overtime rates in clause 19.1.
[11.4 renumbered as 11.5 by PR723964; 11.5 renumbered as 11.4 and substituted by PR733936 from 27Sep21]
11.4 A casual employee must not be employed on a commission-only basis under clause 16.7.
11.5 Offers and requests for casual conversion
[11.5 renumbered as 11.6 by PR723964; 11.6 renumbered as 11.5 and renamed and substituted by PR733936 from 27Sep21]]
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution.
12.1 Schedule A—Classification Structure and Definitions to this award contains a definition for each classification in clause 14.1.
12.2 At the time of engagement the employer must advise the employee in writing of their classification and also at any time when there is a change to an employee’s classification.
13. Ordinary hours of work and rostering
13.1 Subject to clause 13.2, ordinary hours of work are 38 hours per week, which may be worked on any day of the week.
13.2 Averaging of hours of work
Hours of work may be averaged over an 8 week period. The average weekly hours over the period must not exceed:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
13.3 Rostered time off
(a) An employee, other than a casual, will be allowed either one and a half or 2 rostered days free of duty each week.
(b) Rostered time off may be taken in one of the following ways:
(i) one consecutive period;
(ii) 2 periods; or
(iii) 3 periods comprising one day and 2 half days.
13.4 Unpaid meal break
(a) No employee will be required to work more than 5 hours without an unpaid meal break of at least 30 minutes duration.
(b) If the employee’s rostered hours are not longer than 6 hours the employee may elect, with the employer’s approval, to not take a meal break.
(c) Meal breaks are not treated as time worked.
[Varied by PR720159, PR718924, PR729367, PR740792, PR762215]
[14.1 varied by PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
14.1 An employer must pay adult employees the following minimum rates for ordinary hours worked by the employee:
|
Employee classification |
Minimum weekly rate (full-time employee) |
|
|
$ |
|
Real Estate Employee Level 1 (Associate Level)—first 12 months of employment at this level |
898.50 |
|
Real Estate Employee Level 1 (Associate Level)—after first 12 months of employment at this level |
945.90 |
|
Real Estate Employee Level 2 (Representative Level) |
995.00 |
|
Real Estate Employee Level 3 (Supervisory Level) |
1094.50 |
|
Real Estate Employee Level 4 (In-Charge Level) |
1144.40 |
NOTE: See Schedule B—Summary of Hourly Rates of Pay for a summary of hourly rates of pay including overtime and penalty rates.
14.2 No employee will suffer a reduction in rates as a result of the introduction of the new classification structure and wage rates.
NOTE: All past service of an employee engaged as a Real Estate Employee Level 1 (Associate Level) as at the coming into force of clause 14.1, shall count for the purpose of determining if the employee is to be paid the minimum rate in their first 12 months of employment or higher.
14.3 The minimum weekly rate in clause 14.1 is not payable to an employee engaged on a commission-only basis pursuant to clause 16.7.
(a) Where the law permits junior employees to perform the work covered by this award they will be entitled to the percentage of the applicable adult minimum weekly rate for their classification, as set out below:
|
Age |
% of adult rate |
|
Under 19 years |
60 |
|
At 19 years |
70 |
|
At 20 years |
80 |
|
At 21 years |
100 |
(b) A junior employee must not be employed on a commission-only basis.
14.5 Supported wage system
For employees who because of the effects of a disability are eligible for a supported wages, see Schedule D—Supported Wage System.
[14.6(a) varied by PR720159 ppc 18Jun20]
(a) Schedule E to the Miscellaneous Award 2020 sets out minimum wage rates and conditions for employees undertaking traineeships.
[14.6(b) varied by PR720159 ppc 18Jun20, PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
(b) This award incorporates the terms of Schedule E to the Miscellaneous Award 2020 as at 1 July 2023. Provided that any reference to “this award” in Schedule E to the Miscellaneous Award 2020 is to be read as referring to the Real Estate Industry Award 2020 and not the Miscellaneous Award 2020.
NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.
15.1 Frequency of payment
(a) Wages and allowances will be paid by the employer on a weekly, fortnightly or monthly cycle, except as provided in clause 15.2.
(b) A casual employee will be paid at the end of the employer’s usual pay cycle unless the parties agree to payment being made upon conclusion of the employee’s shift.
15.2 Commission, bonus or incentive payments
(a) If an employee is entitled to receive any commission, bonus or incentive payment in accordance with a written agreement made under clause 16—Commission, bonus or incentive payments, payment to the employee must be made within 14 days of the entitlement becoming payable.
(b) The employee’s entitlement to commission, bonus or incentive payment only becomes payable once the employer has received cleared funds from its client for the transaction(s) to which the employee’s entitlement relates.
15.3 Payment may be made by cash, cheque or electronic funds transfer (EFT), at the discretion of the employer.
15.4 Payment on termination of employment
(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and
(ii) all other amounts that are due to the employee under this award and the NES.
(b) The requirement to pay wages and other amounts under clause 15.4(a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.
NOTE 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.
NOTE 2: Clause 15.4(b) allows the Commission to make an order delaying the requirement to make a payment under clause 15.4. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.
NOTE 3: State and Territory long service leave laws or long service leave entitlements under section 113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.
16. Commission, bonus or incentive payments
[Varied by PR771015]
16.1 Payment by wages with commission, bonus or incentive payments
(b) Where it has been agreed between the employer and the employee that the employee will be entitled to a bonus or an incentive payment (as opposed to commission under clause 16.1(a)) particulars of the bonus or incentive payment entitlement must be evidenced in a written agreement between the employer and the employee.
16.2 Written agreements generally
(a) Once a written agreement has been made as provided for in clause 16.1 or clause 16.7, any subsequent agreement to vary the employee’s commission, bonus or incentive payment arrangements must be evidenced in a further written agreement between the employer and the employee.
(b) Where an employee agrees with the employer to a change in his or her commission, bonus or incentive arrangement, the employee will be entitled to receive sales commission, bonus or incentive payments calculated in accordance with the written agreement (whether made under clause 16.2 or clause 16.1) which was in force on the date the contract for sale or lease of property became legally enforceable. Provided that in circumstances where a non-commission-only employee is changing to a commission-only agreement, then the commission-only agreement must not include any provision for a deduction arising from any agreement which was in force immediately prior to the commission-only agreement becoming operative.
(c) A signed copy of every written agreement regarding commission, bonus or incentive payment arrangements must be provided by the employer to the employee.
16.3 Account to employee
The employer must account to the employee in written form for any commission, bonus or incentive payment-based entitlement as it becomes due and payable in accordance with the terms of any written agreement.
16.4 Entitlements after employment ends
(a) Following cessation of employment, the employee is entitled to be credited with a portion of the commission, incentive payments or bonuses calculated in accordance with the terms of the written agreement made pursuant to clauses 16.1 or 16.7 of the award, but only in the following circumstances:
(ii) where the employee’s employment terminates for any other reason, there was a legally enforceable contract in place for the sale or lease of the property prior to the expiration date of the exclusive agency period.
(b) For the purpose of clause 16.4, “exclusive agency period” means the period for which the employer has the exclusive right to sell or lease a property under the executed and valid agency agreement that was in effect at the time the employee’s employment ceased. There is no entitlement under clause 16.4 where the property for sale or lease has been listed other than on an exclusive agency basis.
(c) Unless the written agreement made either under clauses 16.1 or 16.7 specifies otherwise, the portion of the commission, incentive payments or bonuses referred to in clause 16.4(a) must be the same as that with which the employee would have been entitled to be credited if their employment had continued.
(d) Any entitlement to commission, incentive payments or bonuses calculated under clause 16.4 only arises once the employer is paid commission by the client in respect of the sale or lease of the property to which the legally enforceable contract relates and the commission payment is cleared into the employer’s bank account.
If there is a dispute between the employer and the employee as to whether all or any part of the commission is due to an employee pursuant to clauses 16.1 or 16.7, the matter will be dealt with in accordance with clause 28—Dispute resolution.
16.6 Calculation of NES entitlements
(a) Commission-only employees will be paid for periods of leave to which they are entitled under the NES, at the time the leave is taken, at no less than the employee’s base rate of pay. Where an employee is subject to a commission-only agreement which provides for a percentage in excess of the minimum commission-only rate in clause 16.7(f) the payment made for leave may be treated as a debit on the employee’s account for this additional percentage.
(b) Any inclusions as referred to in clause 16.6(a) must be clearly set out in a written agreement.
(c) The base rate of pay in relation to entitlements under the NES for an employee, who is paid on a commission-only basis, is the minimum wage in clause 14.1 for the employee’s classification level.
(d) The full rate of pay in relation to entitlements under the NES for an employee, who is paid on a commission-only basis, is:
(i) the minimum wage in clause 14—Minimum rates for the employee’s classification level; or
(ii) the employee’s average weekly remuneration over the 12 months (or, if the employee has been employed less than 12 months, that period) immediately prior to when the full rate of pay is to be calculated, whichever is the greater.
16.7 Commission-only employment
(a) Agreement to enter into commission-only employment arrangements
(i) An employee engaged in property sales or commercial, industrial or retail leasing as a Real Estate Employee Level 2 or higher (other than a casual employee) may agree with the employer to be paid on a commission-only basis. Such an employee is considered a pieceworker and is referred to in this award (and within the real estate industry) as a commission-only employee.
(ii) An employee paid on a commission-only basis must not be engaged as a part-time or casual employee.
(b) Objective of commission-only employment
The objective of commission-only employment arrangements is to provide a mechanism by which a salesperson who meets the requirements set out below should achieve remuneration of 125% or more of the annualised minimum wage that an employee working at the same property sales level under this award would be entitled to be paid.
(c) Minimum requirements for commission-only employment
· the employee and the employer have made a written agreement as provided in clause 16.2 that the employee will be remunerated on a commission-only basis setting out the basis upon which the entitlement to commission will be calculated as provide in clause 16.2;
· the employee has been issued with a real estate agent’s license or is registered or permitted to perform the duties of a real estate salesperson under real estate law;
· the employee has been engaged in property sales or commercial, industrial or retail leasing as a Real Estate Employee Level 2 or higher with any Licenced Real Estate Agent, or has operated his or her own real estate business, for at least 12 consecutive months in the 3 years prior to entering into a commission-only agreement;
· the employee is at least 21 years of age;
· the employee is not engaged as a part-time employee, a casual, a junior, a Real Estate Employee Level 1 or a trainee; and
· for an employee employed on a commission-only basis after 2 April 2018 the employee can establish (with the present or any past employer) that he or she has achieved the Minimum Income Threshold Amount (MITA) prescribed by clause 16.7(d) as may be amended from time to time). Provided that, the MITA will not have to be achieved in circumstances where the employee has operated his or her own real estate business within the last 3 years.
(ii) For the purpose of clause 16.7(c)(i), “real estate business” shall mean a business involved in the sale of real property or businesses.
(d) Minimum income threshold amount (MITA)
(i) For the purpose of entering into commission-only employment, the MITA has been achieved if the employee can establish that in any consecutive 12-month period in the 3 years immediately preceding entering into the commission-only agreement, the employee received annual remuneration (including any commission or bonus payments) at least equal to 125% of the employee’s classification rate as specified in clause 14—Minimum rates, calculated as an annual amount, excluding statutory superannuation.
· individual payment summaries;
· pay slips; and/or
· commission statement records or other sales records.
(iii) The employer must be satisfied on reasonable grounds that the employee has established that he or she has achieved the MITA within the prescribed time period.
(iv) At the request of the employer, the employee will provide the employer with a statutory declaration which declares the accuracy and legitimacy of any documentation provided by the employee under clause 16.7(d)(ii).
(e) The following clauses of this award do not apply to a commission-only employee:
(i) clause 10—Part-time employees;
(ii) clause 11—Casual employees;
(iii) clause 14—Minimum rates;
(iv) clause 16.1—Payment by wages with commission, bonus or incentive payments;
[New 16.7(e)(v) inserted by PR771015 ppc 1Mar24]
(v) 17.11—Excess travelling
[16.7(e)(v) renumbered as 16.7(e)(vi) by PR771015 ppc 1Mar24]
(vi) clause 17.2 to 17.8—Allowances;
[16.7(e)(vi) renumbered as 16.7(e)(vii) by PR771015 ppc 1Mar24]
(vii) clause 19.1 and 19.2—Overtime; and
[16.7(e)(vii) renumbered as 16.7(e)(viii) by PR771015 ppc 1Mar24]
(viii) clause 20.6—Annual leave loading.
(f) Minimum commission-only rate
(i) The minimum commission-only rate is calculated as 31.5% of the employer’s gross commission as defined in clause 2—Definitions.
(ii) Subject to clauses 16.7(f)(iii) and 16.7(f)(iv), a commission-only employee is always entitled to at least the minimum commission-only rate for each sales or commercial leasing transaction for which the employee was responsible.
· 2 or more employees are separately responsible for different components of a sales or commercial leasing transaction; and
· the employee portion of the employer’s gross commission is to be split amongst the employees according to the component(s) for which the particular employee was responsible,
any commission-only employee responsible for one or more component(s) is entitled to at least the minimum commission-only rate proportionate to the value of each component.
(iv) With respect to clause 16.7(f)(iii), component(s) may include, but are not limited to:
· commercial leasing of a property;
· listing a property or business;
· managing the listing of a property or business;
· selling a property or business; and/or
· nurturing a legally-enforceable contract to completion,
(v) The proportionate value of each component will be as agreed in writing between the employer and the employee.
(g) Where it is agreed that an employee will also be entitled to a portion of the commission paid to the employer greater than the minimum commission-only rate prescribed in clause 16.7(f) then any method of calculation, or any formula for calculating what amount of commission will be payable to the employee in excess of the minimum commission-only rate, must be evidenced in a written agreement between the employer and the employee.
(h) When commission-only arrangements must cease
(i) The gross income of commission-only employees must be reviewed annually to establish gross income.
(ii) For employees on commission-only arrangements entered into prior to 2 April 2018 the review must occur no later than 12 months from 2 April 2018.
(iii) For employees engaged on commission-only arrangements entered into after 2 April 2018 the review must occur no later than 12 months from the date those arrangements were entered into.
(iv) Where the review establishes that the gross income of a commission-only employee for the year under review is less than the MITA as provided in clause 16.7(d) the commission-only arrangement must cease.
(i) Resumption of commission-only arrangements
Where a commission-only employee has ceased to be employed on a commission-only arrangement because of the operation of clause 16.7(h), the 3 year period for the purpose of assessing whether the employee has achieved the MITA for the purposes of entering into further commission-only arrangements, commences from the date the employee ceased to be a commission-only employee because of the operation of clause 16.7(h).
[Varied by PR729549, PR740955, PR743461, PR762384, PR771015]
NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.
17.1 Employers must pay to an employee the allowances the employee is entitled to under this award.
NOTE: See Schedule C—Summary of Monetary Allowances for a summary of monetary allowances and method of adjustment.
[17.2(a) substituted by PR771015 ppc 1Mar24]
(a) If the employer requires the employee to use the employee’s own motor vehicle in the course of their employment, including to undertake excess travelling as described in clause 17.11, the employee must be reimbursed for the use of their motor vehicle in accordance with clause 17.2(b), 17.2(c) or 17.3. Clause 17.2 does not apply to the use of a motor scooter or motorcycle.
(i) An employee must be paid a weekly standing charge allowance plus the amount per kilometre for the distance travelled in performing duties under this award as set out in the table at clause 17.2(b)(iii), calculated by reference to the age and engine capacity of the vehicle.
(ii) If the employer and employee expressly agree in writing, a weekly lump sum payment as set out in the table calculated by reference to the engine capacity of the vehicle, may be applied instead of the standing charge and per kilometre rate.
[17.2(b)(iii) varied by PR729549, PR740955, PR762384 ppc 01Jul23]
|
Engine capacity |
Allowance |
Rate $ |
|
Up to 5 years old |
|
|
|
Up to and including 1600cc |
Standing charge |
97.31 |
|
Up to and including 1600cc |
Per kilometre |
0.16 |
|
Up to and including 1600cc |
Lump sum |
178.67 |
|
1601cc up to and including 2600cc |
Standing charge |
133.38 |
|
1601cc up to and including 2600cc |
Per kilometre |
0.19 |
|
1601cc up to and including 2600cc |
Lump sum |
229.73 |
|
Over 2600cc |
Standing charge |
138.78 |
|
Over 2600cc |
Per kilometre |
0.21 |
|
Over 2600cc |
Lump sum |
248.87 |
|
Over 5 years old |
|
|
|
Up to and including 1600cc |
Standing charge |
49.45 |
|
Up to and including 1600cc |
Per kilometre |
0.16 |
|
Up to and including 1600cc |
Lump sum |
134.01 |
|
1601cc up to and including 2600cc |
Standing charge |
74.03 |
|
1601cc up to and including 2600cc |
Per kilometre |
0.19 |
|
1601cc up to and including 2600cc |
Lump sum |
172.29 |
|
Over 2600cc |
Standing charge |
80.73 |
|
Over 2600cc |
Per kilometre |
0.23 |
|
Over 2600cc |
Lump sum |
204.20 |
(c) Part-time and casual employees entitled to be paid a motor vehicle allowance in accordance with clause 17.2, will have the entitlement calculated on the basis of one fifth of the appropriate standing charge or lump sum rate for each day worked.
(d) For the purpose of clauses 17.2(b) and 17.2(c), the age of the vehicle will be determined by reference to the date stamp on the compliance plate of the vehicle.
(e) Notwithstanding any other provision of clause 17.2, a full-time employee may be reimbursed for the use of their vehicle for the days only where the vehicle is required to be used to perform duties under this award. In such instances, the employee will be entitled to receive one fifth of the weekly lump sum rate in accordance with the above tables for each day the vehicle is used at the direction of the employer. Provided that, where the vehicle is used on 3 or more days in any week, the full weekly rate will be payable for that week.
(f) If an employee is entitled to a car allowance in accordance with clause 17.2 and the employee changes the motor vehicle thereby entitling the employee to either a higher or lower car allowance rate, the following shall apply:
(i) If the change in the vehicle provided by the employee entitles the employee to a higher car allowance rate, such rate will be payable from the first full pay period after the date the employee provides the employer with a true copy of the registration papers of the new motor vehicle; or
(ii) If the change in the vehicle provided by the employee entitles the employee to a lower car allowance rate, the employee must notify the employer within 7 days of the change and provide a copy of the registration papers of the new motor vehicle.
17.3 Motor vehicle allowance—alternative
[17.3(a) varied by PR729549, PR740955, PR762384 ppc 01Jul23]
(a) Instead of the provisions contained in clause 17.2, the employer may elect to pay the employee a $0.95 per kilometre allowance for all use of the employee’s own motor vehicle in the course of employment, to a maximum of 400 km per week.
(b) If the employee claims the motor vehicle allowance under clause 17.3, the employee must keep a record of all such usage which will show:
(i) the date and odometer reading of the first such usage of the motor vehicle at the commencement of the log book;
(ii) the date and commencement and final odometer reading for each day on which the allowance is claimed;
(iii) total business kilometres each day;
(iv) the purpose of each usage; and
(v) the signature of the employee, certifying the usage.
17.4 Motor vehicle allowance not payable
(a) Nothing prescribed under clauses 17.2 or 17.3 shall entitle an employee to be paid any motor vehicle allowance where:
(i) the employee is absent from duty without the consent of the employer;
(ii) the employee is on any period of paid and/or unpaid leave;
(iii) the employee is unable to perform his or her duties under this award due to the loss of their driver’s licence; or
(iv) the motor vehicle is unavailable due to accident or mechanical defect, provided that such payments will be payable for any day on which the employee provides an alternate motor vehicle for the purpose of performing their work-related duties.
(b) In these circumstances the motor vehicle entitlement will be reduced by one-fifth of the weekly standing charge or lump sum rate, whichever is applicable, for each day the car is not used by the employee in the course of employment.
[17.5(a) varied by PR729549, PR740955, PR762384 ppc 01Jul23]
(a) Where the employer requires the employee to use the employee’s own motor scooter or motor cycle in the course of employment, the employee will be entitled to be reimbursed for the use of the motor scooter or motor cycle at a rate of $0.32 per kilometre for its use in the course of employment with a maximum payment as for 400 kilometres per week. Where the employee claims the allowance under clause 17.5, the employee must keep a record of all such usage which will show:
(i) the date and odometer reading of the first such usage of the motor scooter or motor cycle at the commencement of the log book;
(ii) the date and commencement and final odometer reading for each day on which the allowance is claimed;
(iii) total business kilometres each day;
(iv) the purpose of each usage; and
(v) the signature of the employee, certifying the usage.
17.6 Employer’s motor vehicles
(a) If the employer provides a motor vehicle for the use of the employee when performing work-related duties, the expenses arising out of the provision, maintenance and lawful operation of such vehicle will be met by the employer.
(b) The employee must adhere to the employer’s lawful directions, conditions or policies in relation to the use of the employer’s vehicle.
17.7 Mobile telephone allowance
(i) the mobile telephone is provided under a mobile phone plan from a telecommunications provider, the employer and employee must agree in writing on the amount of reasonable reimbursement payable by the employer to the employee for the use of the employee’s mobile phone in the course of employment provided that such reimbursement must not be less than 50% of the cost of the employee’s monthly mobile phone plan, up to a maximum monthly phone plan of $100.00; or
(b) Without limiting an agreed method of payment for reimbursement, an employee’s salary in excess of the minimum weekly wage may be inclusive of reimbursement providing the reimbursement component of the salary is identified in the agreement.
(c) The mobile phone allowance under clause 17.7(a) is payable during the entire period of employment, except when the employee is on any period of leave either paid or unpaid.
(d) If requested, the employee must provide the employer with a copy of the mobile phone plan associated with the mobile telephone to be used by the employee in the course of employment.
(e) If the employee enters into a new mobile phone plan or arrangement with a telecommunications provider entitling the employee to a different allowance under clause 17.7, the new allowance will become payable from the first full pay period after the date the employee provides the employer with a true copy of the new mobile phone plan.
(a) If the employer requires the employee to wear a uniform, the employer will either pay for or provide the uniform.
(b) The basis on which the uniform is provided, including what constitutes the uniform, will be at the discretion of the employer.
(c) The uniform will remain the property of the employer and be returned upon termination of employment.
(d) The care, laundering and dry cleaning of the uniform will be the responsibility of the employee.
17.9 Adjustment of expense-related allowances
[17.9(b) varied by PR743461 ppc 11Jul22]
(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 |
|
Motor vehicle allowance |
Private motoring sub-group |
|
Motorcycle allowance |
Private motoring sub-group |
|
Mobile telephone allowance |
Telecommunication equipment and services sub-group |
(b) If reasonably practicable, expenses will be paid in advance.
(c) Clause 17.10(a) will not apply where this award prescribes an allowance for the expense.
[17.11 inserted by PR771015 ppc 1Mar24]
(b) Such excess time is to be treated as working time under clause 13—Ordinary hours of work and rostering, clause 19—Overtime and is counted for the purposes of the minimum engagement for casual employees in clause 11.1 and paid at the ordinary rates prescribed in clause 14—Minimum rates or the overtime rates in clause 19, as appropriate.
(c) In addition to the payment for excess time spent travelling as provided in clause 17.11(a), if the employer requires the employee to use the employee’s own motor vehicle in the course of employment, the employee will be paid the applicable motor vehicle allowance in accordance with clause 17.2(b), 17.2(c) or clause 17.3 as agreed between the employer and the employee.
[Varied by PR771381]
18.1 Superannuation legislation
[18.1 substituted by PR771381 ppc 09Apr24]
(a) The NES and 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), deal with the superannuation rights and obligations of employers and employees.
(b) The rights and obligations in clause 18 supplement those in superannuation legislation and the NES.
NOTE: Under superannuation legislation:
(a) Individual employees generally have the opportunity to choose their own superannuation fund.
(b) If a new employee does not choose a superannuation fund, the employer must ask the Australian Taxation Office (ATO) whether the employee is an existing member of a stapled superannuation fund and, if stapled fund details are provided by the ATO, make contributions to the stapled fund.
(c) If an employee does not choose a superannuation fund and does not have a stapled fund, the choice of superannuation fund requirements will be satisfied by contributions made to a superannuation fund nominated in the award covering the employee, provided the fund is able to accept contributions for the benefit of the employee.
(d) A fund may not be able to accept contributions for the benefit of an employee if the employee would be a new member of the fund’s MySuper product and the MySuper product is closed to new members because it has failed the performance tests of Australian Prudential Regulation Authority (APRA) for 2 consecutive years.
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.
18.3 Voluntary employee contributions
(c) The employer must pay the amount authorised under clauses 18.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 18.3(a) or (b) was made.
18.4 Superannuation fund
[18.4 varied by PR771381 ppc 09Apr24]
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 18.2 to another superannuation fund, the employer must make the superannuation contributions provided for in clause 18.2 and pay any amount authorised under clauses 18.3(a) or 18.3(b) to one of the following superannuation funds or its successor, provided that, in respect of new employees, the fund is able to accept new beneficiaries:
(a) REI Super;
(b) CareSuper;
(c) Tasplan;
(d) 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 superannuation scheme; or
(e) a superannuation fund or scheme which the employee is a defined benefit member of.
[Varied by PR723964, PR763313]
[19.1(a) substituted by PR723964 ppc 20Nov20]
(a) Hours worked at the specific direction of the employer in excess of those prescribed in clause 13—Ordinary hours of work and rostering other than on an employee’s rostered day or half day off work will be paid at the hourly rate of pay or taken as time off instead of payment for overtime as prescribed in clause 19.2 or paid at the following rates:
|
Day |
Full-time and part-time overtime rates |
Casual overtime rates |
|
|
|
% of minimum hourly rate |
||
|
(i) |
Hours other than on a rostered day or half day off—all day |
100 |
125 |
|
(ii) |
Hours on a rostered day or half day off—first 2 hours |
150 |
|
|
(iii) |
Hours on a rostered day or half day off —after 2 hours |
200 |
|
NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the overtime rates for full-time and part-time employees prescribed by clause 19.1(a).
(b) For the purpose of clause 19.1, specific direction means that the employee was given an express instruction to perform work in excess of the hours prescribed under clause 13—Ordinary hours of work and rostering.
(c) If the employee works hours in excess of those prescribed under clause 13—Ordinary hours of work and rostering at their own initiative (i.e. without any express instruction from the employer to do so) the employee will not be entitled to payment in accordance with clause 19.1(a).
19.2 Time off instead of payment for overtime
(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.
(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;
(iv) that any payment mentioned in clause 19.2(c)(iii) must be made in the next pay period following the request.
NOTE: An example of the type of agreement required by clause 19.2 is set out at Schedule G—Agreement for Time Off Instead of Payment for Overtime. There is no requirement to use the form of agreement set out at Schedule G—Agreement for Time Off Instead of Payment for Overtime. An agreement under clause 19.2 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 19.2 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(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 19.2 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 clause 19.2(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 19.2 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 19.2 will apply, including the requirement for separate written agreements under clause 19.2(b) for overtime that has been worked.
[Note varied by PR763313 ppc 01Aug23]
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 65A(3) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 19.2 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 19.2.
(c) The agreement made in accordance with 19.3 clause must be reasonable when considering the extent to which the employee is required to be on stand-by and/or call-out.
(d) If the employee is on stand-by and/or call-out outside of ordinary hours of work and:
(i) the employer and employee have agreed in writing under clauses 19.3(a) and 19.3(b) for the employee to be paid due compensation for being on stand-by and/or call-out, the time during which the employee is on stand-by and/or call-out will not count towards an accrual of ordinary hours of work; or
(ii) the employer and employee have not agreed in writing under clauses 19.3(a) and 19.3(b) for the employee to be paid due compensation for being on stand-by and/or call-out, the time during which the employee is on stand-by and/or call-out will count towards an accrual of ordinary hours of work.
Part 6—Leave and Public Holidays
[Varied by PR751107]
20.1 Annual leave is provided for in the NES. Clause 20 contains additional and supplementary provisions.
Subject to clause 16.6, payment for annual leave will be made either at the time the employee takes annual leave or on the employee’s normal pay day(s) throughout the period of leave.
NOTE: Where an employee is receiving over-award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).
20.3 Electronic funds transfer (EFT) payment of annual leave
Despite anything else in clause 20, an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.
20.4 Taking leave
(a) The employer and employee may agree when and for what period the employee is to take the employee’s accrued annual leave, having regard to the personal circumstances of the employee and the operational requirements of the employer.
(b) The employer must not unreasonably refuse to agree to a request by the employee to take accrued annual leave.
(c) Annual leave should be taken by the employee in the employee’s anniversary year in which the entitlement accrues, except if agreed otherwise.
20.5 Direction to take annual leave during shutdown
[20.5 renamed and substituted by PR751107 ppc 01May23]
(a) Clause 20.5 applies if an employer:
(i) intends to shut down all or part of its operation for a particular period (temporary shutdown period); and
(ii) wishes to require affected employees to take paid annual leave during that period.
(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under clause 20.5(b) and who will be affected by that period, as soon as reasonably practicable after the employee is engaged.
(e) A direction by the employer under clause 20.5(d):
(i) must be in writing; and
(ii) must be reasonable.
(f) The employee must take paid annual leave in accordance with a direction under clause 20.5(d).
(g) In respect of any part of a temporary shutdown period which is not the subject of a direction under clause 20.5(d), an employer and an employee may agree, in writing, for the employee to take leave without pay during that part of the temporary shutdown period.
(h) An employee may take annual leave in advance during a temporary shutdown period in accordance with an agreement under clause 20.7.
(i) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause 20.7, to which an entitlement has not been accrued, is to be taken into account.
(j) Clauses 20.9 to 20.11 do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause 20.5.
(a) During a period of annual leave the employee will receive a loading of 17.5% calculated on the minimum weekly wage for the employee’s classification under this award.
(b) Annual leave loading is:
(i) only payable on leave accrued and not when leave is taken in advance; and
(ii) not payable to commission-only employees.
(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 20.7 is set out at Schedule E—Agreement to Take Annual Leave in Advance. There is no requirement to use the form of agreement set out at Schedule E—Agreement to Take Annual Leave in Advance.
(c) The employer must keep a copy of any agreement under clause 20.7 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 20.7, 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.
20.8 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 20.8.
(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 20.8.
(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 20.8 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 20.8 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 20.8 as an employee record.
NOTE 1: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make, or not make, an agreement under clause 20.8.
NOTE 2: 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 20.8.
NOTE 3: An example of the type of agreement required by clause 20.8 is set out at Schedule F—Agreement to Cash Out Annual Leave. There is no requirement to use the form of agreement set out at Schedule F—Agreement to Cash Out Annual Leave.
20.9 Excessive leave accruals: general provision
NOTE: Clauses 20.9 to 20.11 contain provisions, additional to the NES, 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 Act.
(c) Clause 20.10 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
(d) Clause 20.11 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
20.10 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under clause 20.9(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 clause 20.10(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 20.9, 20.10 or 20.11 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 clause 20.10(a) that is in effect.
(d) An employee to whom a direction has been given under clause 20.10(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 clause 20.10(d) may result in the direction ceasing to have effect. See clause 20.10(b)(i).
NOTE 2: Under section 88(2) of the Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
20.11 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under clause 20.9(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.
(b) However, an employee may only give a notice to the employer under clause 20.11(a) 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 20.10(a) that, when any other paid annual leave arrangements (whether made under clause 20.9, 20.10 or 20.11 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.
(c) A notice given by an employee under clause 20.11(a) 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 20.9, 20.10 or 20.11 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.
(d) An employee is not entitled to request by a notice under clause 20.11(a) more than 4 weeks’ paid annual leave in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under clause 20.11(a).
21. Personal/carer’s leave and compassionate leave
Personal/carer’s leave and compassionate leave are provided for in the NES.
22. Parental leave and related entitlements
[22 varied by PR763313 ppc 01Aug23]
Parental leave and related entitlements are provided for in the NES.
NOTE: Disputes about requests for extensions to unpaid parental leave may be dealt with under clause 28—Dispute resolution and/or under section 76B of the Act.
Community service leave is provided for in the NES.
24. Family and domestic violence leave
[24—Unpaid family and domestic violence leave renamed and substituted by PR750533 ppc 15Mar23]
Family and domestic violence leave is provided for in the NES.
NOTE 1: Information provided to employers concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers are subject to confidentiality requirements regarding the handling of this information under section 106C of the Act and requirements as to what can be reported on payslips pursuant to regulations 3.47 and 3.48 of the Fair Work Regulations 2009.
NOTE 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.
[Varied by PR747457]
25.1 Public holiday entitlements are provided for in the NES.
25.2 Subject to the Act, the employer may require the employee to work on a public holiday.
[25.4 substituted by PR747457 ppc 14Nov22]
25.4 Hours of work performed immediately before or after a part-day public holiday, that form part of one continuous shift, are counted as part of the minimum payment/engagement period in clause 25.3.
Part 7—Consultation and Dispute Resolution
26. Consultation about major workplace change
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
26.2 For the purposes of the discussion under clause 26.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
26.3 Clause 26.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
26.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 26.1(b).
26.5 In clause 26 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
26.6 Where this award makes provision for alteration of any of the matters defined at clause 26.5, such alteration is taken not to have significant effect.
27. Consultation about changes to rosters or hours of work
27.1 Clause 27 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.
27.3 For the purpose of the consultation, the employer must:
(a) provide to the employees and representatives mentioned in clause 27.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
27.4 The employer must consider any views given under clause 27.3(b).
27.5 Clause 27 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.
[Varied by PR763313]
28.1 Clause 28 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
28.3 If the dispute is not resolved through discussion as mentioned in clause 28.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
28.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 28.2 and 28.3, a party to the dispute may refer it to the Fair Work Commission.
28.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
28.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
28.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 28.
28.8 While procedures are being followed under clause 28 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
28.9 Clause 28.8 is subject to any applicable work health and safety legislation.
[Note 1 inserted by PR763313 ppc 01Aug23]
NOTE 1: In addition to clause 28, a dispute resolution procedure for disputes regarding the NES entitlement to request flexible working arrangements is contained in section 65B of the Act.
[Note 2 inserted by PR763313 ppc 01Aug23]
NOTE 2: In addition to clause 28, a dispute resolution procedure for disputes regarding the NES entitlement to request an extension to unpaid parental leave is contained in section 76B of the Act.
Part 8—Termination of Employment and Redundancy
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
29.1 Notice of termination by an employee
(a) Clause 29.1 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give one week’s notice to the employer to terminate employment. The employer may then elect to pay the employee one week’s pay instead of notice. Unless the parties mutually agree in writing to a notice period greater than one week, employment will terminate one week from the date that the employee gives the employer notice to terminate employment.
(c) If an employee who is at least 18 years old does not give the period of notice required under clause 29.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(d) Any deduction made under clause 29.1(c) must not be unreasonable in the circumstances.
(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
(b) The time off under clause 29.2 is to be taken at times that are convenient to the employee after consultation with the employer.
NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act.
30.1 Transfer to lower paid duties on redundancy
(a) Clause 30.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.
(b) The employer may:
(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
(c) If the employer acts as mentioned in clause 30.1(b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
30.2 Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 30 or under sections 119 to 123 of the Act had they remained in employment until the expiry of the notice.
(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
30.3 Job search entitlement
(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.
(b) If an employee is allowed time off without loss of pay of more than one day under clause 30.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.
(c) A statutory declaration is sufficient for the purpose of clause 30.3(b).
(d) An employee who fails to produce proof when required under clause 30.3(b) is not entitled to be paid for the time off.
(e) This entitlement applies instead of clause 29.2.
Schedule A—Classification Structure and Definitions
A.1 Real Estate Employee Level 1 (Associate level)
A.1.1 Employees at this level have not been classified as a Level 2, 3 or 4 employee by the employer. An employee at this level is principally engaged to assist and work under the supervision of an employee(s) at a higher level. An employee at this level will not have responsibility for listing and/or selling of real property or businesses or managing rental or strata/community title properties.
A.1.2 Indicative job titles of a Real Estate Employee Level 1 (Associate Level) include:
· Property Sales Assistant or Property Sales Associate;
· Buyer’s Agent Assistant or Associate;
· Property Management Assistant or Property Management Associate;
· Property Officer;
· Leasing Officer or Assistant;
· Strata/Community Title Management Assistant or Strata/Community Title Management Associate.
A.1.3 Indicative tasks
Indicative tasks at this level may include:
(a) assisting an employee(s) at a higher level;
(b) under the guidance and/or direction of a more senior person, following up enquiries with sellers and/or buyers of real property and businesses;
(c) responding to general enquiries from potential tenants for properties under management;
(d) providing support to an employee(s) at a higher level in undertaking a range of functions associated with the selling, leasing and/or management of real property (including strata title management) and businesses;
(e) assisting in the preparation of documentation and correspondence in relation to the sale, leasing and/or management of real property (including strata title management) or businesses. Such documentation and correspondence may include:
· agency agreements;
· commercial and/or residential leases;
· advertising material associated with the sale or leasing of real property and businesses;
· property inspection reports (ingoing, outgoing and periodic) under the direction of a more senior person;
· strata/community title management agreements;
· the preparation of minutes from meetings of owner’s corporations;
(f) collecting rents from tenants and/or issuing rental receipts;
(g) investigating and arranging for the collection of rental arrears;
(h) prospecting and canvassing under direction of an employee at a higher level, including phone canvassing, door knocking and letter box dropping;
(i) in consultation with a more senior person, arranging maintenance and repairs to properties under management (including under strata/community title management);
(j) provide support to an employee at a higher level in a range of functions associated with strata and community title management, in accordance with owners’ corporations instructions;
(k) respond to general enquiries from the owner’s corporation of strata/community title schemes;
(l) assisting with auctions of real property or businesses to the extent permitted under real estate law;
(m) assisting with property inspections (including open for inspections), including the placement of sign boards, maintaining attendee lists from property inspections, opening and closing homes after inspection;
(n) assisting with post sale processes including pest and building inspections, searches and checking progress of the conveyance process; and
(o) preparing and updating rental lists and website material.
A.2 Real Estate Employee Level 2 (Representative level)
A.2.1 Employees at this level have been classified as Level 2 by the employer. An employee at this level may perform any of the duties of a Real Estate Employee Level 1 (Associate Level) but will also have responsibility for the listing and/or selling of real property or businesses, for helping clients to buy real property or businesses or for managing rental or strata/community title properties or for sourcing and/or securing new property managements (including strata title managements).
A.2.2 Indicative job titles of a Real Estate Employee Level 2 (Representative Level) include:
· Property Sales Representative or Real Estate Salesperson;
· Buyer’s Agent;
· Property Management Representative or Property Manager;
· Business Development Manager;
· Strata/Community Title Management Representative or Strata Title Manager.
A.2.3 Indicative tasks
Indicative tasks at this level may include:
(a) performing market appraisals for sale or lease of real property or businesses;
(b) conducting and/or supervising the preparation of documentation and correspondence associated with the sale or leasing of real property or businesses. Such documentation and correspondence may include:
· agency agreements for both sale and property management;
· tenancy agreements;
· rental bond documents;
· commercial and/or residential leases;
· advertising material associated with the sale or leasing of real property and businesses;
· inventory reports;
· strata/community title management agreements;
· property inspection reports (ingoing, outgoing and periodic);
(c) conducting or supervising property inspections (ingoing, outgoing and periodic);
(d) organising advertising of a property;
(e) organising sign boards for open for inspections;
(f) conducting inspections with interested parties for real property or businesses that are for sale or lease;
(g) conducting negotiations between a prospective buyer and seller of real property or a business, or between a prospective tenant and the property owner;
(h) using personal initiative to source and secure prospective properties to sell or manage;
(i) the listing and/or sale of real property or businesses;
(j) the leasing of commercial, industrial or retail property;
(k) conducting market research and providing marketing advice to customers;
(l) conducting auctions of real property;
(m) liaising with conveyancers and solicitors involved in the sale of real property or businesses or in the commercial leasing process;
(n) assessing and processing tenancy applications;
(o) organising property repairs and maintenance, including ingoing and outgoing property condition reports;
(p) providing advice to property owners and tenants on preventative and planned maintenance;
(q) accounting for rents and expenses to property owners;
(r) liaising with and report to property owners and/or owners corporations;
(s) appearing before tenancy tribunals and providing advice to property owners on state and territory residential tenancy matters (including the termination of tenancies);
(t) attending and/or conduct strata management meetings;
(u) completing strata management documentation;
(v) carrying out all duties and functions required under a strata managing agency agreement.
A.3 Real Estate Employee Level 3 (Supervisory level)
A.3.1 A principal requirement of an employee at this level is the supervision of employee(s) classified as Real Estate Employee Level 2 (Representative Level). An employee at this level may perform any of the duties of a Real Estate Employee Level 2 (Representative Level) but will also have responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems of an employee(s) at a lower level.
A.3.2 Indicative job titles of a Real Estate Employee Level 3 (Supervisory Level) include:
· Property Sales Manager or Property Sales Supervisor;
· Property Management Supervisor;
· Strata/Community Title Management Supervisor.
A.3.3 Indicative tasks
Indicative tasks at this level may include:
(a) providing leadership and supervision to level 1 and level 2 employees;
(b) the supervision and/or management of work teams;
(c) implementing and/or supervising quality customer service;
(d) monitoring of operational plans;
(e) assisting in the resolution of customer complaints;
(f) monitoring safe workplace practices;
(g) managing personal work priorities and professional development of self and assisting with the professional development of others in the work team(s);
(h) training employees at lower level by personal instruction and demonstration;
(i) involvement in either selling of real property or businesses, leasing of commercial, industrial, retail or residential property, or supervision of a portfolio of rental properties or strata/community title schemes;
(j) managing the owners corporation processes.
A.4 Real Estate Employee Level 4 (In-Charge-Level)
A.4.1 Employees at this level have been classified as Level 4 by the employer. An employee at this level may perform any of the duties of a Real Estate Employee Level 3 (Supervisory Level). The employee at this level will hold applicable qualification(s) under real estate law and have been appointed by the employer to be responsible for ensuring the business complies with its statutory obligations under real estate law.
A.4.2 Indicative job titles of a Real Estate Employee Level 4 include:
· Licensee-In-Charge;
· Agency Manager.
A.4.3 Indicative tasks
Indicative tasks at this level may include:
(a) overall supervision and management of the office;
(b) planning and managing business finances for the organisation;
(c) ensuring that the office complies with all of its statutory obligations imposed under relevant real estate law;
(d) facilitating change and innovation.
Schedule B—Summary of Hourly Rates of Pay
[Varied by PR718924, PR729367, PR740792, PR762215]
B.1 Adult full-time and part-time employees
B.1.1 Adult full-time and part-time employees—ordinary, penalty and overtime rates
[B.1.1 varied by PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
B.2 Adult casual employees
B.2.1 Adult casual hourly rate includes the casual loading which is payable for all purposes.
B.2.2 Adult casual employees—ordinary and penalty rates
[B.2.2 varied by PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
|
|
Ordinary hours |
Public holiday |
|
|
|
% of casual hourly rate |
|
|
|
|
100% |
200% |
|
|
|
$ |
$ |
|
|
Real Estate Employee Level 1 (Associate Level)—first 12 months of employment at this level |
29.55 |
59.10 |
|
|
Real Estate Employee Level 1 (Associate Level)—after first 12 months of employment at this level |
31.11 |
62.22 |
|
|
Real Estate Employee Level 2 (Representative Level) |
32.73 |
65.46 |
|
|
Real Estate Employee Level 3 (Supervisory Level) |
36.00 |
72.00 |
|
|
Real Estate Employee Level 4 (In-Charge Level) |
37.65 |
75.30 |
|
B.3.1 Full-time and part-time junior employees—ordinary, penalty and overtime rates
[B.3.1 varied by PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
The junior hourly rate is based on a percentage of the appropriate adult rate in accordance with clause 14.4. Adult rates apply from 21 years of age.
|
|
Junior hourly rate—ordinary hours |
Public holidays—ordinary hours |
Overtime—Monday to Sunday on a rostered day off |
Overtime—public holidays |
|
|
First 2 hours |
After 2 hours |
||||
|
|
% of junior hourly rate |
||||
|
|
100% |
200% |
150% |
200% |
200% |
|
|
$ |
$ |
$ |
$ |
$ |
|
Real Estate Employee Level 1 (Associate Level)—first 12 months of employment at this level |
|
|
|
|
|
|
Under 19 years |
14.19 |
28.38 |
21.29 |
28.38 |
28.38 |
|
19 years |
16.55 |
33.10 |
24.83 |
33.10 |
33.10 |
|
20 years |
18.92 |
37.84 |
28.38 |
37.84 |
37.84 |
|
Real Estate Employee Level 1 (Associate Level)—after first 12 months of employment at this level |
|
|
|
|
|
|
Under 19 years |
14.94 |
29.88 |
22.41 |
29.88 |
29.88 |
|
19 years |
17.42 |
34.84 |
26.13 |
34.84 |
34.84 |
|
20 years |
19.91 |
39.82 |
29.87 |
39.82 |
39.82 |
|
Real Estate Employee Level 2 (Representative Level) |
|
|
|
|
|
|
Under 19 years |
15.71 |
31.42 |
23.57 |
31.42 |
31.42 |
|
19 years |
18.33 |
36.66 |
27.50 |
36.66 |
36.66 |
|
20 years |
20.95 |
41.90 |
31.43 |
41.90 |
41.90 |
|
Real Estate Employee Level 3 (Supervisory Level) |
|
|
|
|
|
|
Under 19 years |
17.28 |
34.56 |
25.92 |
34.56 |
34.56 |
|
19 years |
20.16 |
40.32 |
30.24 |
40.32 |
40.32 |
|
20 years |
23.04 |
46.08 |
34.56 |
46.08 |
46.08 |
|
Real Estate Employee Level 4 (In-Charge Level) |
|
|
|
|
|
|
Under 19 years |
18.07 |
36.14 |
27.11 |
36.14 |
36.14 |
|
19 years |
21.08 |
42.16 |
31.62 |
42.16 |
42.16 |
|
20 years |
24.09 |
48.18 |
36.14 |
48.18 |
48.18 |
B.3.2 Casual junior employees—ordinary and penalty rates
[B.3.2 varied by PR718924, PR729367, PR740792, PR762215 ppc 01Jul23]
The junior casual hourly rate is based on a percentage of the appropriate adult rate and includes the casual loading which is payable for all purposes.
|
|
Junior hourly rate—ordinary hours |
Public holidays |
|
|
% of junior casual hourly rate |
|
|
|
100% |
200% |
|
|
$ |
$ |
|
Real Estate Employee Level 1 (Associate Level)—first 12 months of employment at this level |
|
|
|
Under 19 years |
17.74 |
35.48 |
|
19 years |
20.69 |
41.38 |
|
20 years |
23.65 |
47.30 |
|
Real Estate Employee Level 1 (Associate Level)—after first 12 months of employment at this level |
|
|
|
Under 19 years |
18.68 |
37.36 |
|
19 years |
21.78 |
43.56 |
|
20 years |
24.89 |
49.78 |
|
Real Estate Employee Level 2 (Representative Level) |
|
|
|
Under 19 years |
19.64 |
39.28 |
|
19 years |
22.91 |
45.82 |
|
20 years |
26.19 |
52.38 |
|
Real Estate Employee Level 3 (Supervisory Level) |
|
|
|
Under 19 years |
21.60 |
43.20 |
|
19 years |
25.20 |
50.40 |
|
20 years |
28.80 |
57.60 |
|
Real Estate Employee Level 4 (In-Charge Level) |
|
|
|
Under 19 years |
22.59 |
45.18 |
|
19 years |
26.35 |
52.70 |
|
20 years |
30.11 |
60.22 |
Schedule C—Summary of Monetary Allowances
[Varied by PR729549, PR740955, PR762384]
See clause 17—Allowances for full details of allowances payable under this award.
C.1 Expense-related allowances
[C.1.1 varied by PR729549, PR740955, PR762384 ppc 01Jul23]
C.1.1 The following expense-related allowances will be payable to employees in accordance with clause 17—Allowances:
|
Allowance |
Clause |
$ |
Payable |
|
Vehicle up to 5 years of age: |
17.2(b)(iii) |
|
|
|
Up to and including 1600cc—Standing charge |
|
97.31 |
per week |
|
Up to and including 1600cc—Per kilometre |
|
0.16 |
per km |
|
Up to and including 1600cc—Lump sum |
|
178.67 |
per week (if agreed on) |
|
1601cc up to and including 2600cc—Standing charge |
|
133.38 |
per week |
|
1601cc up to and including 2600cc—Per kilometre |
|
0.19 |
per km |
|
1601cc up to and including 2600cc—Lump sum |
|
229.73 |
per week (if agreed on) |
|
Over 2600cc—Standing charge |
|
138.78 |
per week |
|
Over 2600cc—Per kilometre |
|
0.21 |
per km |
|
Over 2600cc—Lump sum |
|
248.87 |
per week (if agreed on) |
|
Vehicle over 5 years of age: |
17.2(b)(iii) |
|
|
|
Up to and including 1600cc—Standing charge |
|
49.45 |
per week |
|
Up to and including 1600cc—Per kilometre |
|
0.16 |
per km |
|
Up to and including 1600cc—Lump sum |
|
134.01 |
per week (if agreed on) |
|
1601cc up to and including 2600cc—Standing charge |
|
74.03 |
per week |
|
1601cc up to and including 2600cc—Per kilometre |
|
0.19 |
per km |
|
1601cc up to and including 2600cc—Lump sum |
|
172.29 |
per week (if agreed on) |
|
Over 2600cc—Standing charge |
|
80.73 |
per week |
|
Over 2600cc—Per kilometre |
|
0.23 |
per km |
|
Over 2600cc—Lump sum |
|
204.20 |
per week (if agreed on) |
|
Vehicle allowance (alternative)—to a maximum of 400 kilometres per week |
17.3(a) |
0.95 |
per km |
|
Motor cycle allowance—to a maximum of 400 kilometres per week |
17.5(a) |
0.32 |
per km |
|
Mobile telephone allowance—maximum phone plan payable |
17.7(a)(i) |
100.00 |
per month (reimbursement see clause 17.7(a)(ii)) |
C.1.2 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 |
|
Motor vehicle allowance |
Private motoring sub-group |
|
Motor cycle allowance |
Private motoring sub-group |
|
Mobile telephone allowance |
Telecommunication equipment and services sub-group |
Schedule D—Supported Wage System
[Varied by PR719661, PR729672, PR742256, PR762969]
D.1 This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.
D.2 In this schedule:
approved assessor means a person accredited by the management unit established by the Commonwealth under the supported wage system to perform assessments of an individual’s productive capacity within the supported wage system.
assessment instrument means the tool provided for under the supported wage system that records the assessment of the productive capacity of the person to be employed under the supported wage system.
disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991 (Cth), as amended from time to time, or any successor to that scheme.
relevant minimum wage means the minimum wage prescribed in this award for the class of work for which an employee is engaged.
supported wage system (SWS) means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website: www.jobaccess.gov.au.
SWS wage assessment agreement means the document in the form required by the Department of Social Services that records the employee’s productive capacity and agreed wage rate.
D.3 Eligibility criteria
D.3.1 Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.
D.3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.
D.4 Supported wage rates
D.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:
|
Assessed capacity (clause D.5) % |
Relevant minimum wage % |
|
10 |
10 |
|
20 |
20 |
|
30 |
30 |
|
40 |
40 |
|
50 |
50 |
|
60 |
60 |
|
70 |
70 |
|
80 |
80 |
|
90 |
90 |
[D.4.2 varied by PR719661, PR729672, PR742256, PR762969 ppc 01Jul23]
D.4.2 Provided that the minimum amount payable must be not less than $102 per week.
D.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.
D.5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the SWS by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.
D.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.
D.6 Lodgement of SWS wage assessment agreement
D.6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with the Fair Work Commission.
D.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by the Fair Work Commission to the union by certified mail and the agreement will take effect unless an objection is notified to the Fair Work Commission within 10 working days.
D.7 Review of assessment
The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the SWS.
D.8 Other terms and conditions of employment
Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.
D.9 Workplace adjustment
An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.
D.10 Trial period
D.10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding 4 weeks) may be needed.
D.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.
[D.10.3 varied by PR719661, PR729672, PR742256, PR762969 ppc 01Jul23]
D.10.3 The minimum amount payable to the employee during the trial period must be no less than $102 per week.
D.10.4 Work trials should include induction or training as appropriate to the job being trialled.
D.10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause D.5.
Schedule E—Agreement to Take Annual Leave in Advance
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 F—Agreement to Cash Out Annual Leave
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___ |
Schedule G—Agreement for Time Off Instead of Payment for Overtime
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 H—Part-day Public Holidays deleted by PR747457 ppc 14Nov22]
[Schedule I—Award Flexibility During the COVID-19 Pandemic inserted by PR721593 ppc 06Aug20; deleted by PR742724 ppc 17June22]
[Schedule X—Additional Measures During the COVID-19 Pandemic inserted by PR718141 ppc 08Apr20; deleted by PR742724 ppc 17June22]
Modern award and related determinations on the Find My Award tool or otherwise on the Fair Work Ombudsman’s website display content taken from the Fair Work Commission’s website. The Fair Work Commission and Fair Work Ombudsman take care to ensure that modern award and related determination copies are accurate at the time of publication but do not guarantee, and accept no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of the information displayed by the Find My Award tool or otherwise on the Fair Work Ombudsman’s website or resources.
Any data extracts must be read in conjunction with the provisions in the modern award. These copies and extracts are not a substitute for independent professional advice and users should obtain any appropriate professional advice relevant to their particular circumstances.
The Fair Work Ombudsman acknowledges the Traditional Custodians of Country throughout Australia and their continuing connection to land, waters, skies and communities. We pay our respects to them, their Cultures, and Elders past, present and future.