Professional Diving Industry (Industrial) Award 2010

Professional Diving Industry (Industrial) Award 2010

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

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

Schedule C—2017 Part-day Public Holidays

Current review matter(s):AM2014/47;AM2014/84;AM2014/190;AM2014/196;AM2014/197;AM2014/300;AM2014/301;AM2015/1;AM2015/2;AM2016/8; AM2016/15

Table of Contents

[Varied by PR532631,PR544519,PR546288,PR557581,PR573679,PR585482,PR588750]

Part 1—Application and Operation

1. Title

2. Commencement and transitional

3. Definitions and interpretation

4. Coverage

5. Access to the award and the National Employment Standards

6. The National Employment Standards and this award

7. Award flexibility

Part 2—Consultation and Dispute Resolution

8. Consultation

9. Dispute resolution

Part 3—Types of Employment and Termination of Employment

10. Types of employment

11. Termination of employment

12. Redundancy

Part 4—Minimum Wages and Related Matters

13. Classifications and minimum wages

14. Allowances—offshore divers

15. Allowances—inshore divers

16. Adjustment of expense related allowances

17. Accident pay

18. Higher duties

19. Payment of wages

20. Superannuation

Part 5—Hours of Work and Related Matters

21. Ordinary hours of work

22. Rostering—offshore divers

23. Breaks

24. Overtime and penalty rates—inshore divers

Part 6—Leave and Public Holidays

25. Annual leave

26. Personal/carer’s leave and compassionate leave

27. Community service leave

28. Public holidays

Schedule A—Transitional Provisions

Schedule B—Classification Structure

Schedule C—2017 Part-day Public Holidays

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

Schedule E—Agreement to Take Annual Leave in Advance

Schedule F—Agreement to Cash Out Annual Leave

Part 1—Application and Operation

1. Title

2. Commencement and transitional

3. Definitions and interpretation

4. Coverage

5. Access to the award and the National Employment Standards

6. The National Employment Standards and this award

7. Award flexibility

1. Title

This award is the Professional Diving Industry (Industrial) Award 2010.

2. Commencement and transitional

[Varied by PR542228]

2.1 This award commences on 1 January 2010.

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

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

    ●minimum wages and piecework rates

    ●casual or part-time loadings

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

    ●shift allowances/penalties.

[2.4 varied by PR542228 ppc 04Dec13]

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

[2.5 varied by PR542228 ppc 04Dec13]

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

[2.6 varied by PR542228 ppc 04Dec13]

2.6 The Fair Work Commission may review the transitional arrangements:

    (a) on its own initiative;or

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

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

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

3. Definitions and interpretation

[Varied by PR997772,PR503682,PR546104]

3.1 In this award,unless the contrary intention appears:

    Act means the Fair Work Act 2009 (Cth)

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

    atmospheric diving systems (ADS) means a manned diving system such as OMB,ARMS,MOB,JIM,WASP and similar systems which allow an operator to work underwater without being subjected to greater than atmospheric pressure

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

[Definition of default fund employee inserted by PR546104 ppc 01Jan14]

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

[Definition of defined benefit member inserted by PR546104 ppc 01Jan14]

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

    designated assembly point means the point from which the employer provides transport to the designated point of embarkation

    designated point of embarkation means the point from which transport to the offshore location is provided

[Definition of Division 2B State award inserted by PR503682 ppc 01Jan11]

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

[Definition of Division 2B State employment agreement inserted by PR503682 ppc 01Jan11]

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

[Definition of employee substituted by PR997772 from 01Jan10]

    employee means national system employee within the meaning of the Act

[Definition of employer substituted by PR997772 from 01Jan10]

    employer means national system employer within the meaning of the Act

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

[Definition of exempt public sector superannuation scheme inserted by PR546104 ppc 01Jan14]

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

    inshore divers means employees qualified as ADS divers (parts 1,2,3 trained to the appropriate level of AS 2815.1,2815.2,2815.3) who undertake diving operations in coastal or inland waters under the jurisdiction of Australian State or Territory legislation and in keeping with the provisions of the operational standard AS/NZS 2299.1:2007

[Definition of MySuper product inserted by PR546104 ppc 01Jan14]

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

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

    offshore divers means employees qualified as ADS divers (parts 3,4 trained to the appropriate level of AS 2815.3 or 2815.4) who undertake an offshore petroleum diving operation conducted outside the State or Territory boundaries but within the jurisdiction of the Commonwealth

    offshore exploration and development diving means and includes all diving from oil drilling rigs,hydrocarbons exploration vessels or platforms and diving in or in connection with the construction and maintenance of platforms and associated submarine pipelines

    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

    saturation techniques means procedures in accordance with which a diver is continuously subjected to an ambient pressure greater than atmospheric pressure so that the body tissues and blood become saturated with the inert element of the breathing mixture

    short term project will be a continuous project not exceeding 56 days

    standard rate means the minimum weekly wage for an offshore or inshore Diver,as the case may be,in clause 13Classifications and minimum wages

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

    underwater inspector means an employee engaged in or in connection with the inspection of underwater structures

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

4. Coverage

4.1 This industry award covers employers throughout Australia engaged in the provision of underwater services to industry,including offshore exploration and development diving and related shipboard services,and their employees in the classifications listed in Schedule B—Classification Structure to the exclusion of any other modern award.

4.2 In this clause Australia means all areas within the Commonwealth of Australia or within the adjacent areas as defined in the Petroleum (Submerged Lands) Acts (State or Federal) and/or such areas that fall within the territorial jurisdiction of the Commonwealth of Australia.

4.3 The award does not cover employers and employees covered by the classifications listed in the Professional Diving Industry (Recreational) Award 2010.

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

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

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

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

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

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

5. Access to the award and the National Employment Standards

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

6. The National Employment Standards and this award

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

7. Award flexibility

[Varied by PR542228]

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

    (a) arrangements for when work is performed;

    (b) overtime rates;

    (c) penalty rates;

    (d) allowances;and

    (e) leave loading.

[7.2 varied by PR542228 ppc 04Dec13]

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

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

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

[7.3(b) varied by PR542228 ppc 04Dec13]

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

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

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

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

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

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

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

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

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

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

7.8 The agreement may be terminated:

[7.8(a) varied by PR542228 ppc 04Dec13]

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

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

[Note inserted by PR542228 ppc 04Dec13]

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

[New 7.9 inserted by PR542228 ppc 04Dec13]

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

[7.9 renumbered as 7.10 by PR542228 ppc 04Dec13]

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

Part 2—Consultation and Dispute Resolution

8. Consultation

9. Dispute resolution

8. Consultation

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

8.1 Consultation regarding major workplace change

    (a) Employer to notify

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

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

    (b) Employer to discuss change

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

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

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

8.2 Consultation about changes to rosters or hours of work

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

    (b) The employer must:

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

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

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

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

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

9. Dispute resolution

[Varied by PR542228]

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

[9.2 varied by PR542228 ppc 04Dec13]

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

[9.3 varied by PR542228 ppc 04Dec13]

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

[9.4 varied by PR542228 ppc 04Dec13]

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

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

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

Part 3—Types of Employment and Termination of Employment

10. Types of employment

11. Termination of employment

12. Redundancy

10. Types of employment

10.1 Employees under this award will be employed in one of the following categories:

    (a) full-time employees;or

    (b) casual employees.

10.2 Full-time employees

    (a) Inshore divers must be employed by the week.

    (b) For offshore divers,employment for the first four weeks will be on a weekly basis and thereafter will be on a calendar month basis.

    (c) A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.

    (d) Where employment is of less than four weeks’duration,employees will be paid casual rates.

10.3 Casual employees

    (a) A casual employee is one engaged and paid as such.

    (b) A casual employee will be paid an hourly rate with a minimum payment of eight hours,except as provided for in clause 10.3(e).

    (c) A casual employee will be paid per hour 1/38th of the relevant minimum wage in clause 13Classifications and minimum wages,plus a loading of 25%.

    (d) The casual loading is paid instead of annual leave,personal/carer’s leave,notice of termination,redundancy benefits and the other entitlements of full-time or part-time employment provided for in this award. The loading constitutes part of the casual employee’s all purpose rate.

    (e) Where casual employees are required to attend for work at the usual starting time and are not required to start work,they must be paid four hours’pay plus fares and travelling time in accordance with clause 15.6.

    (f) Casual employment is to be terminated by four hours’notice on either side,or by the payment or forfeiture of four hours’wages as the case may be.

11. Termination of employment

11.1 Notice of termination is provided for in the NES.

11.2 Notice of termination by an employee

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

11.3 Job search entitlement

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

12. Redundancy

[Varied by PR503682,PR561478]

12.1 Redundancy pay is provided for in the NES.

12.2 Transfer to lower paid duties

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

12.3 Employee leaving during notice period

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

12.4 Job search entitlement

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

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

    (c) This entitlement applies instead of clause 11.3.

12.5 Transitional provisions –NAPSA employees

[12.5 renamed by PR503682;deleted by PR561478 ppc 05Mar15]

12.6 Transitional provisions –Division 2B State employees

[12.6 inserted by PR503682;deleted by PR561478 ppc 05Mar15]

Part 4—Minimum Wages and Related Matters

13. Classifications and minimum wages

14. Allowances—offshore divers

15. Allowances—inshore divers

16. Adjustment of expense related allowances

17. Accident pay

18. Higher duties

19. Payment of wages

20. Superannuation

13. Classifications and minimum wages

[Varied by PR998008;PR509139,PR522970,PR536773,PR551696,PR566788,PR579899,PR592210]

13.1 Offshore divers

[13.1 varied by PR998008,PR509139,PR522970,PR536773,PR551696,PR566788,PR579899,PR592210 ppc 01Jul17]

    A full-time adult employee engaged in offshore diving must be paid the total weekly wage in Column C (the minimum wage in Column A plus the aggregate weekly factor in Column B) as set out below:

     

    Column A

    Column B

    Column C

    Classification

    Minimum weekly wage

    Aggregate weekly factor

    Total weekly wage

     

    $

    Percentage of minimum weekly wage

    $

    Diving Superintendent

    1068.10

    117%

    2317.78

    Diving Supervisor

    998.20

    116%

    2156.11

    Supervisor
    (ADS Operations)

    998.20

    116%

    2156.11

    Hyperbaric Welder

    963.50

    116%

    2081.16

    Life Support Technician

    913.40

    114%

    1954.68

    Senior Operator (OMB Operations)

    913.40

    114%

    1954.68

    Systems Maintenance Technician

    855.20

    113%

    1821.58

    Diver

    803.90

    111%

    1696.23

    Operator
    (ADS Operations)

    803.90

    111%

    1696.23

    Diver’s Attendant

    699.30

    108%

    1454.54

13.2 The aggregate weekly factor specified in Column B of clause 13.1 includes payment for the various rosters that may be worked,overtime,the nature of the industry and penalties and conditions of employment applicable to the work performed.

13.3 Minimum monthly wages are calculated by multiplying the relevant weekly wage derived from clause 13.1 by 4.35.

13.4 Inshore divers

[13.4 varied by PR998008,PR509139,PR522970,PR536773,PR551696,PR566788,PR579899,PR592210 ppc 01Jul17]

    A full-time adult employee engaged in inshore diving must be paid a minimum weekly wage as set out below:

    Classification

    Minimum weekly wage

     

    $

    Diving Supervisor

    1310.30

    Hyperbaric Welder

    1016.60

    Diver

    971.90

    Diver’s Attendant

    799.10

13.5 The classification structure and definitions for the above classifications are contained in Schedule B—Classification Structure.

14. Allowances—offshore divers

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

[Varied by PR998129,PR509260,PR523090,PR536893,PR551816,PR566917,PR579613,PR592361]

14.1 Disability allowance

    Employees will receive an additional payment of 8% of the standard rate for each on-duty day (or in the case of casual employees 9.49% of the standard rate per on-duty day) on a support vessel whether dynamically positioned or anchor moored in recognition of all disabilities and work requirements associated with living and working from such a vessel. The amounts shown reflect payment for the on-duty and off-duty period.

14.2 Diving allowances

    (a) Diving other than ADS Operations

      (i) In addition to the minimum wage set out in clause 13.1,a Diver will be paid a diving allowance of 0.47% of the standard rate per metre or 0.14% of the standard rate per foot or equivalent pressure. The minimum payment will be calculated as 50 times the diving allowance per foot,except where a Diver is engaged in a dive using saturation techniques in which case the minimum allowance will be calculated as 250 times the diving allowance per foot.

      (ii) Such allowance will be payable once in respect of the greatest depth or equivalent pressure incurred in each period worked. For the purposes of this clause,a period worked will begin from the time the Diver enters the water or is subject to greater than atmospheric pressure and will end 12 hours later. Further periods worked will begin again each 12 hours if at the end of a period worked,or a further period worked,a Diver is still subject to greater than atmospheric pressure.

    (b) ADS Operations

      In addition to the minimum wage set out in clause 13.1,a Senior Operator (OMB Operations) and Operator (ADS Operations) will be paid a diving allowance of 0.23% of the standard rate per metre or 0.07% of the standard rate per foot. The minimum payment will be calculated as 250 times the diving allowance per foot. Such allowance will be payable only once in respect of dives commenced within a 12 hour period.

    (c) Practice or training dives

      The diving allowances in clauses 14.2(a) and (b) must not be paid to persons performing practice or training dives or to an Operator (ADS Operations) during the first 12 month period of training. Underwater services must not be performed for the employer during practice or training dives.

    (d) Diving Superintendents,Diving Supervisors,Supervisors (ADS Operations) and Life Support Technicians

      (i) Diving Superintendents,Diving Supervisors and Supervisors (ADS Operations) will receive 20% and Life Support Technicians will receive 15% of the average diving allowance paid to Divers or Operators (ADS Operations) under their control. Average diving allowance will be calculated daily by dividing the total diving allowance earned in each day or part thereof by Divers or Operators (ADS Operations) under the control of a Diving Superintendent,Diving Supervisor or Supervisor (ADS Operations) by the number of Divers or Operators (ADS Operations) who earned a diving allowance in that day.

      (ii) Surface oriented dives made in conjunction with saturation diving operations must be calculated separately for the purpose of calculating the average diving allowance.

14.3 Non-destructive testing allowance

    Employees engaged in non-destructive testing of structures by the methods of magnetic particle testing,ultrasonic testing and radiography will,in addition to the minimum wage applicable to their classification,be paid an allowance for each day or part thereof on which they are engaged in such duties. The allowance will be 7.04% of the standard rate per day.

14.4 Hyperbaric welding allowance

    (a) The minimum wage for a Hyperbaric Welder as specified in clause 13.1 will apply from the date an employee is required to carry out such duties. The payment will cease when the employee is no longer required by the employer to carry out those duties.

    (b) A Hyperbaric Welder will be entitled to a payment of 0.58% of the standard rate per linear millimetre for a successfully completed weld. For the purpose of this clause,successfully completed means a weld which has been accepted by the client without the necessity for repair.

    (c) Provided that instead of clause 14.4(b) a Hyperbaric Welder will be entitled to payment of 0.39% of the standard rate per linear millimetre for a weld which requires repair prior to being accepted by the client.

    (d) The payments prescribed in clauses 14.4(b) and (c) will apply only to members of the nominated hyperbaric welding team who have been coded for that particular hyperbaric welding task.

14.5 Loss of personal effects reimbursement

[14.5 varied by PR998129,PR509260,PR523090,PR536893, PR551816,PR566917,PR592361 ppc 01Jul17]

    An employee will be reimbursed up to $2471.00 for the loss of personal effects normally required while offshore,which are lost due to fire,explosion,collision,foundering or collapse of a fixed platform,vessel or work barge. Provided that no payment will be made where the employee’s loss is made good by any insurance policy or other claim on the employer or any third party.

14.6 Living away from home allowance

[14.6 varied by PR998129,PR523090,PR536893, PR551816,PR566917 ppc 01Jul15]

    An allowance of $51.68 per day will be paid to each employee for each day or part thereof of their duty period offshore or in circumstances where employees would normally be working offshore and are temporarily accommodated onshore away from their home. With the exception of annual leave the allowance will not be payable during periods of leave or authorised absences nor during periods in which the employee is specifically engaged on shore-based duties including equipment mobilisation or demobilisation where the employee is able to live at home.

14.7 Transportation and accommodation allowances

    (a) At the beginning and end of each on-duty period,the employer must provide transport between the designated assembly point and the designated point of embarkation. Employees are required to present themselves at the designated point of embarkation by use of the transport provided by the employer or otherwise at their own expense. If the transport provided is in the form of a hired vehicle the employee will be responsible for the care of the vehicle and if an accident occurs while the employee is in charge of the vehicle and is proven to be under the influence of illegal drugs or alcohol,the employer will have the right to recover from the employee any cost incurred by the employer resulting from such accident.

    (b) During the period of duty,employees who cannot reasonably return to their usual residence will be reimbursed the cost of reasonable accommodation and meals. Where such accommodation and meals are provided by the employer the provisions of clause 14.7 do not apply.

    (c) The employer will notify the employees of the designated assembly point and designated point of embarkation for each job.

14.8 Clothing and equipment allowances

    (a) Employees will be reimbursed for the purchase of clothing and equipment required for the performance of duties. The provisions of clause 14.8 do not apply if the employer provides such clothing and equipment.

    (b) Where a full-time employee is required to supply and maintain their own wetsuit and approved safety footwear,they will be paid an allowance of $108.61 per calendar month.

    (c) In the case of a casual employee,the allowance will be $8.75 per day.

14.9 Medical examination allowance

    (a) Where the employer requests that a prospective employee undertake a pre-employment medical examination,the employee will be reimbursed for the costs of attending such examination.

    (b) Where Commonwealth,State or Territory legislation requires that employees bound by this award must submit to medical examination,then upon employees complying with such Act or Regulation,the employer will reimburse the employee for all costs associated with such examination.

14.10 Insurance policy reimbursement

[14.10 varied by PR523090,PR536893, PR551816,PR566917,PR592361 ppc 01Jul17]

    Where the employee elects to obtain insurance cover against death from any cause with a sum insured of $126,881 to apply during the period of the employee’s employment,then upon presentation of verifiable evidence of the purchase of such insurance policy,the employer will reimburse the employee for the cost of the policy. The provisions of this clause do not apply if the employer provides such insurance coverage directly.

15. Allowances—inshore divers

[Varied by PR998129,PR509260,PR523090,PR536893,PR551816,PR566917,PR579613,PR592361]

15.1 Diving allowance

    (a) A Diver will be paid a diving allowance of 0.43% of the standard rate per metre or 0.13% of the standard rate per foot of water or equivalent pressure. Such allowance will be payable once in respect of the greatest depth or equivalent pressure incurred each day.

    (b) Provided that the diving allowance specified herein will only apply to dives made in excess of 50 feet or 15 metres of water or equivalent pressure or when decompression is necessary whichever will occur first and will be calculated from the surface to the maximum depth or equivalent pressure attained during the dive.

    (c) The diving allowance referred to above will not be paid to persons performing practice or training dives. Underwater services will not be performed for the employer during practice or training dives.

    (d) Diving Supervisors will receive 20% of the average diving allowance paid to Divers under their control. Average diving allowance will be calculated daily by dividing the total diving allowance earned by divers whilst under the control of a Diving Supervisor by the number of divers who earned a diving allowance on that day.

15.2 Non-destructive testing allowance

    Employees engaged in non-destructive testing of structures by the methods of magnetic particle testing,ultrasonic testing and radiography will,in addition to the minimum wage applicable to their classification,be paid an allowance for each day or part thereof on which they are engaged in such duties. The allowance will be 6.51% of the standard rate per day.

15.3 Hyperbaric welding allowance

    (a) The Hyperbaric Welder rate as specified in clause 15.3(b) will apply from the date an employee is required to carry out such duties. The payment will cease when the employee is no longer required by the employer to carry out those duties.

    (b) A Hyperbaric Welder will be entitled to a payment of 0.49% of the standard rate per linear millimetre for a successfully completed weld. For the purpose of this clause,successfully completed means a weld which has been accepted by the client without the necessity for repair.

    (c) Provided that instead of clause 15.3(b) a Hyperbaric Welder will be entitled to payment of 0.33% of the standard rate per linear millimetre for a weld which requires repair prior to being accepted by the client.

    (d) The payments prescribed in clauses 15.3(b) and (c) will apply only to members of the nominated hyperbaric welding team who have been coded for the particular hyperbaric welding task.

15.4 Annual medical exam allowance

    Employees who are subjected to greater than atmospheric pressure will be reimbursed the cost of an annual medical examination which will include,but not be limited to,the requirement set out in Appendix A of the Standards Association of Australia Underwater Air Breathing Operations Standard AS 2299. The provisions of clause 15.4 do not apply where the employer provides for the service.

15.5 Meal allowance

[15.5 varied by PR998129,PR509260,PR523090,PR536893, PR551816,PR566917,PR592361 ppc 01Jul17]

    Employees who are required to work overtime for more than two hours on any day after the usual finishing time will be entitled to a meal allowance of $8.62 unless they are notified the previous day that their services are required or a hot meal is provided by the employer. Provided that where employees are notified that they will be required to work overtime the following day and such order is cancelled after they have left work on the day on which they were notified they will be paid the meal allowance of $8.62.

15.6 Fares and travelling time allowance

[15.6(a) varied by PR523090,PR536893, PR551816 ppc 01Jul14]

    (a) Employees who commence and finish work within a 50 km radius of the General Post Office in the city or town in which the employer’s business address is situated will receive a fare allowance of $11.63 per day.

    (b) Where employees commence and finish work beyond the 50 km radius referred to in clause 15.6(a) they will be reimbursed for the actual fares incurred and all time spent travelling beyond this radius will be paid at ordinary rates.

15.7 Distant work allowance

    (a) For the purpose of this clause distant work is that in which the distances,or the travelling facilities to and from such places of work,make it reasonably necessary that employees will live and sleep at some place other than their usual place of residence at the time of commencing such work. Provided that if employees,whilst employed on distant work,change their usual place of residence such new place of residence or any further change thereof (if made whilst employed on distant work) will be their usual place of residence for determination of whether the work is distant work within the meaning of this clause.

    (b) Employees engaged on distant work will be conveyed with equipment to and from work at their employer’s expense. Such conveyance will be made each time the employee is recalled and sent again to the place of work. Provided that return fares and travelling time need not be paid to employees who:

      (i) leave the employment of their own free will before the completion of the job or before being three months in such employment,whichever happens first;or

      (ii) are discharged for incompetence within one week of engagement;or

      (iii) are discharged for misconduct.

[15.7(c) varied by PR998129,PR523090,PR536893, PR551816,PR566917 ppc 01Jul15]

    (c) The rate of pay for time occupied in travelling to and from distant work will be ordinary rates,except on Sundays and public holidays when it will be time and a half. Employees will also be paid an amount of $6.37 to cover the expenses,if any,of reaching home and of transporting their personal diving equipment.

    (d) The maximum travelling time to be paid for will be 12 hours out of every 24 hours,or when a sleeping berth is provided by the employer for all night travel,eight hours out of every 24 hours.

[15.7(e) varied by PR998129,PR523090,PR536893, PR551816,PR566917 ppc 01Jul15]

    (e) On distant work employees may be paid,by agreement with the employer,an allowance of $333.09 per week,or such greater amount as may be agreed upon,in return for which employees will be responsible for securing their own accommodation and meals. In the case of broken parts of the week occurring at the beginning or ending of the employment on a distant job the allowance will be $47.63 per day or one seventh of any other weekly amount agreed upon. The provisions of this clause do not apply if the employer provides reasonable board and lodging.

[15.7(f) varied by PR523090,PR536893, PR551816 ppc 01Jul14]

    (f) Employees who consent to use their own vehicle in the course of their employment will be paid an allowance of $0.78 per kilometre. This allowance is for the use of the vehicle by the employee for transporting the employee and the employee’s personal diving equipment.

15.8 Diving clothing and equipment allowance

    Employees who supply their own wet suits and personal diving equipment including weightbelt and diving knife will be paid,in addition to the ordinary rate,an allowance of $7.08 per day on each day on which the equipment is used.

15.9 Protective clothing,footwear and equipment allowance

    (a) Employees will be reimbursed for the cost of all required industrial protective clothing,footwear and safety equipment other than that prescribed in clause 15.8. This provision does not apply if the clothing and the equipment is supplied by the employer.

    (b) Casual employees may,instead of the provision of footwear by the employer,be paid an amount of $2.53 per day of employment for the purchase of approved safety footwear. This allowance will not be payable where safety footwear is not required to be worn.

16. Adjustment of expense related allowances

[Varied by PR998129,PR523090]

16.1 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.

[16.2 varied by PR998129 ppc 01Jul10;PR523090 ppc 01Jul12]

16.2 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

    Clothing,footwear and equipment allowances

    Clothing and footwear group

    Distant work allowance

    Domestic holiday travel and accommodation sub-group

    Fares allowance

    Transport group

    Insurance policy reimbursement

    Insurance and financial services group

    Living away from home allowance

    Domestic holiday travel and accommodation sub-group

    Loss of personal effects reimbursement

    Consumer price index

    Meal allowance

    Take away and fast foods sub-group

    Vehicle allowance

    Private motoring sub-group

   

17. Accident pay

[Varied by PR503682;deleted by PR561478 ppc 05Mar15;new 17 inserted by PR571842 ppc 15Oct15]

17.1 Definitions

    For the purposes of this clause,the following definitions will apply:

    (a) Accident pay means a weekly payment made to an employee by the employer that is the difference between the weekly amount of compensation paid to an employee pursuant to the applicable workers’compensation legislation and the weekly amount that would have been received had the employee been on paid personal leave at the date of the injury (not including over award payments) provided the latter amount is greater than the former amount.

    (b) Injury will be given the same meaning and application as applying under the applicable workers’compensation legislation covering the employer.

17.2 Entitlement to accident pay

    The employer must pay accident pay where an employee suffers an injury and weekly payments of compensation are paid to the employee under the applicable workers’compensation legislation for a maximum period of 52 weeks.

17.3 Calculation of the period

    (a) The 52 week period commences from the date of injury. In the event of more than one absence arising from one injury,such absences are to be cumulative in the assessment of the 52 week period.

    (b) The termination by the employer of the employee’s employment within the 52 week period will not affect the employee’s entitlement to accident pay.

    (c) For a period of less than one week,accident pay (as defined) will be calculated on a pro rata basis.

17.4 When not entitled to payment

    An employee will not be entitled to any payment under this clause in respect of any period of paid annual leave or long service leave,or for any paid public holiday.

17.5 Return to work

    If an employee entitled to accident pay under this clause returns to work on reduced hours or modified duties,the amount of accident pay due will be reduced by any amounts paid for the performance of such work.

17.6 Redemptions

    In the event that an employee receives a lump sum payment in lieu of weekly payments under the applicable workers compensation legislation,the liability of the employer to pay accident pay as herein provided will cease from the date the employee receives that payment.

17.7 Damages independent of the Acts

    Where the employee recovers damages from the employer or from a third party in respect of the said injury independently of the applicable workers compensation legislation,such employee will be liable to repay to the employer the amount of accident pay which the employer has paid under this clause and the employee will not be entitled to any further accident pay thereafter.

17.8 Casual employees

    For a casual employee,the weekly payment referred to in clause 17.1(a) will be calculated using the employee’s average weekly ordinary hours with the employer over the previous 12 months or,if the employee has been employed for less than 12 months by the employer,the employee’s average weekly ordinary hours over the period of employment with the employer. The weekly payment will include casual loading but will not include over award payments.

18. Higher duties

18.1 Where employees perform the duties of a higher paid classification for a day or part thereof they will be paid at the higher rate for that day and paid at the higher rate for an equivalent day in their off-duty period.

18.2 For the purposes of this clause a higher paid classification means a classification which with salary and allowances is a higher paid classification than the employee’s current classification.

19. Payment of wages

[Varied by PR588655]

19.1 Wages will be paid weekly or fortnightly unless otherwise agreed between the employer and the employee.

19.2 Wages will be paid by cash,bank cheque or electronic funds transfer (EFT).

[19.3 substituted by PR588655 ppc 16Dec16]

19.3 Where an employee is paid by cash or cheque and the employee is kept waiting for their wages on pay day for more than 15 minutes after the usual time for ceasing work,the employee must be paid overtime rates after that 15 minutes for the duration spent waiting at the workplace.

19.4 On termination of employment,wages due to employees must be paid to them on the day of such termination or forwarded to them by post on the next working day.

20. Superannuation

[Varied by PR546104]

20.1 Superannuation legislation

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

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

20.2 Employer contributions

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

20.3 Voluntary employee contributions

    (a) Subject to the governing rules of the relevant superannuation fund,an employee may,in writing,authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 20.2.

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

    (c) The employer must pay the amount authorised under clauses 20.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 20.3(a) or (b) was made.

20.4 Superannuation fund

    Unless,to comply with superannuation legislation,the employer is required to make the superannuation contributions provided for in clause 20.2 to another superannuation fund that is chosen by the employee,the employer must make the superannuation contributions provided for in clause 20.2 and pay the amount authorised under clauses 20.3(a) or (b) to one of the following superannuation funds or its successor:

    (a) Maritime Super;

    (b) AMP Superannuation Savings Trust;

[20.4(c) varied by PR546104 ppc 01Jan14]

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

[20.4(d) inserted by PR546104 ppc 01Jan14]

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

Part 5—Hours of Work and Related Matters

21. Ordinary hours of work

22. Rostering—offshore divers

23. Breaks

24. Overtime and penalty rates—inshore divers

21. Ordinary hours of work

[Varied by PR593669]

21.1 Inshore divers

[21.1(a) varied by PR593669 ppc 13Jun17]

    (a) The ordinary hours of work will not exceed 38 hours per week which may be worked between 6.00 am and 6.00 pm Monday to Friday.

    (b) Work undertaken prior to the spread of hours provided by clause 21.1(a) for which overtime rates are payable will be deemed for the purposes of this clause to be part of the ordinary hours of work.

    (c) The spread of hours provided by clause 21.1(a) may be altered by up to one hour by mutual agreement between the employer and employees.

[21.1(a) varied by PR593669 ppc 13Jun17]

    (d) Where employees are not employed on diving operations as such during their ordinary hours,the employer will have the right to use their services on other work for any time remaining.

21.2 Offshore divers

    With the exception of employees engaged in operations rendering them subject to greater than atmospheric pressure,the average daily hours of work will be no greater than 12 hours. Starting and finishing times will be in accordance with a nominated regularly recurrent roster schedule.

22. Rostering—offshore divers

[Varied by PR561478]

22.1 Leave accrual

    For each on-duty day worked employees,other than casual employees,will receive one paid off-duty leave day.

22.2 Rosters

    The employer will establish a regularly recurring roster of equal on-duty and off-duty periods for each work site. The on-duty and off-duty periods will each be of 14 days’duration,provided that other equal periods may be worked by agreement between the parties.

22.3 On-duty period

    The on-duty period for employees,other than casual employees,will commence on the day of arrival at the designated point of embarkation to the work site.

22.4 Off-duty period

    The off-duty period for employees,other than casual employees,will commence on the day of departure from the work site. Provided that if the employee is held over beyond midnight on their crew change day and/or subsequent days,they will be paid one day’s pay at the Column A rate in clause 13.1 but they will not accrue a subsequent leave day.

22.5 Not attending for duty

    Employees not attending for duty in a rostered on-duty period other than as provided for elsewhere in this clause will not receive payment nor accrue off-duty leave days in respect of such period.

22.6 Authorised paid leave

[22.6 varied by PR561478 ppc 05Mar15]

22.7 Authorised unpaid leave

    At the request of an employee the employer may grant authorised unpaid leave to that employee. The employee will not receive payment nor accrue or use paid off-duty leave days in respect of such period of absence. The granting of authorised unpaid leave will be at the sole discretion of the employer.

22.8 Roster changes by the employer

    Where a roster is changed by the employer and the commencement of an employee’s on-duty period is brought forward,the employee will be considered to be on duty from the day of arrival at the designated point of embarkation.

22.9 Roster changes by the employee

    Where a roster is changed at the request of an employee,the employee will be either on duty and accruing off-duty leave days or off-duty and using off-duty leave days as provided in clauses 22.3 and 22.4.

22.10 Returning to work early

    Where an employee commences duty prior to the commencement of the employee’s rostered on-duty period,the employee will be considered to be on-duty from the day of arrival at the designated point of embarkation.

22.11 Prevented from commencing an on-duty period

    Where an employee reports for duty at a designated assembly point but cannot be transported to the offshore work site due to weather conditions,insufficient work or other circumstances beyond the employer’s control,the period of such delay will be regarded as an on-duty period provided that the employer may gainfully employ the employee onshore.

22.12 Prevented from remaining on duty

    Where during an on-duty period an employee cannot remain at the offshore work due to circumstances beyond the employer’s control,such days will be considered to be on-duty days provided that the employer may gainfully employ the employee onshore.

22.13 Prevented from commencing off-duty period

    Where due to weather conditions or other circumstances an employee is delayed offshore and prevented from commencing a rostered off-duty period the employee will be on duty and accruing off-duty leave days until the employee actually commences an off-duty period.

22.14 Imbalance of off-duty leave days owed and actually taken

    (a) Subject to clause 22,an employee may accrue more off-duty leave days than are taken or take more off-duty leave days than have been accrued.

    (b) Where the employee accrues more off-duty leave days than are taken the balance will be recorded and taken at another time.

    (c) Where the employee takes more off-duty leave days than are accrued they will be deducted from any balance of off-duty days yet to be taken. Where that results in a negative balance of off-duty leave days that number of days will be subtracted from the employee’s pay for that month.

    (d) A positive balance of off-duty days owed to the employee on termination will be paid to the employee at that time.

22.15 Work on first day of off-duty period

    To allow a smooth change over of on-duty and off-duty crews,employees will normally be required to work for some period of the first day of their off-duty period on the understanding that they will on average not work a corresponding period on the first day of their on-duty period.

23. Breaks

Inshore divers will be entitled to a meal break of a duration and at a time fixed by agreement provided that no employee will work more than three hours without such a break.

24. Overtime and penalty rates—inshore divers

[Varied by PR585482]

24.1 An employee will be paid the following rates for all work done in addition to their ordinary hours:

    (a) time and a half for the first two hours and double time thereafter,for overtime worked from Monday to Saturday;

    (b) double time for overtime worked on a Sunday;and

    (c) double time and a half for overtime worked on a public holiday.

24.2 An employee recalled to work overtime after leaving the employer’s premises (whether notified before or after leaving the premises) will be engaged to work for a minimum of four hours or will be paid for a minimum of four hours’work in circumstances where the employee is engaged for a lesser period.

24.3 Time off instead of payment for overtime—Inshore Divers only

[24.3 inserted by PR585482 ppc 16Sep16]

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

    (b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 24.3.

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

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

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

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

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

      Note:An example of the type of agreement required by this clause is set out at Schedule D. There is no requirement to use the form of agreement set out at Schedule D. An agreement under clause 24.3 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 24.3 an employee who worked 2 overtime hours is entitled to 2 hours’time off.

    (e) Time off must be taken:

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

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

    (f) If the employee requests at any time,to be paid for overtime covered by an agreement under clause 24.3 but not taken as time off,the employer must pay the employee for the overtime,in the next pay period following the request,at the overtime rate applicable to the overtime when worked.

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

    (h) The employer must keep a copy of any agreement under clause 24.3 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 24.3 will apply,including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

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

    (k) If,on the termination of the employee’s employment,time off for overtime worked by the employee to which clause 24.3 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 24.3.

Part 6—Leave and Public Holidays

25. Annual leave

26. Personal/carer’s leave and compassionate leave

27. Community service leave

28. Public holidays

25. Annual leave

[Varied by PR583053,PR588750]

25.1 Annual leave is provided for in the NES.

25.2 Payment for annual leave

    The amount to be paid to an employee prior to going on leave must be the amount the employee would have been paid for working ordinary hours during the period of annual leave in accordance with clause 21Ordinary hours of work.

25.3 Electronic funds transfer (EFT) payment of annual leave

[New 25.3 inserted by PR583053 ppc 29Jul16]

    Despite anything else in this clause,an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.

[25.3 renumbered as 25.4 by PR583053 ppc 29Jul16]

25.4 Leave for offshore divers is provided for in clause 22Rostering—offshore divers.

[25.4 renumbered as 25.5 by PR583053 ppc 29Jul16]

25.5 Inshore divers in addition to the payment required to be made under clause 25.2,will be paid an annual leave loading of 17.5%.

25.6 Annual leave in advance

[25.6 inserted by PR588750 ppc 20Dec16]

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

    (b) An agreement must:

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

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

      Note:An example of the type of agreement required by clause 25.6 is set out at Schedule E. There is no requirement to use the form of agreement set out at Schedule E.

    (c) The employer must keep a copy of any agreement under clause 25.6 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 25.6,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.

25.7 Cashing out of annual leave

[25.7 inserted by PR588750 ppc 20Dec16]

    (a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 25.7.

    (b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 25.7.

    (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 25.7 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 25.7 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 25.7 as an employee record.

    Note 1:Under section 344 of the Fair Work Act,an employer must not exert undue influence or undue pressure on an employee to make,or not make,an agreement under clause 25.7.

    Note 2:Under section 345(1) of the Fair Work Act,a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 25.7.

    Note 3:An example of the type of agreement required by clause 25.7 is set out at Schedule F. There is no requirement to use the form of agreement set out at Schedule F.

26. Personal/carer’s leave and compassionate leave

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

27. Community service leave

Community service leave is provided for in the NES.

28. Public holidays

28.1 Public holidays are provided for in the NES.

28.2 An inshore diver will be paid at the rate of double time and a half with a minimum payment for four hours’work when required to work on a public holiday.

Schedule A—Transitional Provisions

[Varied by PR503682]

A.1 General

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

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

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

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

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

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

A.2 Minimum wages –existing minimum wage lower

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

    (a) was obliged,

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

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

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

A.2.2 In this clause minimum wage includes:

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

    (b) a piecework rate;and

    (c) any applicable industry allowance.

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

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

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

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

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

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

A.3 Minimum wages –existing minimum wage higher

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

    (a) was obliged,

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

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

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

A.3.2 In this clause minimum wage includes:

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

    (b) a piecework rate;and

    (c) any applicable industry allowance.

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

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

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

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

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

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

A.4 Loadings and penalty rates

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

    ●casual or part-time loading;

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

    ●shift allowance/penalty.

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

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

    (a) was obliged,

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

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

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

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

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

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

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

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

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

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

    (a) was obliged,

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

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

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

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

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

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

    First full pay period on or after

     

    1 July 2010

    80%

    1 July 2011

    60%

    1 July 2012

    40%

    1 July 2013

    20%

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

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

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

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

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

    First full pay period on or after

     

    1 July 2010

    20%

    1 July 2011

    40%

    1 July 2012

    60%

    1 July 2013

    80%

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

A.8 Former Division 2B employers

[A.8 inserted by PR503682 ppc 01Jan11]

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

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

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

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

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

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

Schedule B—Classification Structure

An employer may direct an employee to carry out such duties that are within the limits of the employee’s skill,competence and training,consistent with the respective classification.

B.1 Diver means an employee trained and certified in accordance with AS 2815 Parts 1-3 and experienced in the use of Self-Contained Underwater Breathing Apparatus (SCUBA) and/or Surface Supplied Breathing Apparatus (SSBA) equipment,the physics and physiology of diving,underwater communication systems,use,inspection and maintenance of compressed air supplies,operation and maintenance of underwater tools,preparation and operation of compression chambers (Parts 1 and 2 under supervision),the performance of underwater work,first aid and the relevant legislation.

B.2 Diver’s Attendant means an employee who has adequate knowledge of underwater work,the signals and communication devices used in diving operations,decompression procedures and equipment used in diving operations. The Diver’s Attendant will carry out the functions of attending to a diver,including assisting the diver to dress and undress,handling hoses and/or lifelines and such other duties as may be assigned by the diving supervisor but will not be required to perform underwater services.

B.3 Diving Superintendent means an employee placed in charge of a 24 hour diving operation to co-ordinate the diving work and to relieve Diving Supervisors engaged in that operation where and when necessary.

B.4 Diving Supervisor means a diver experienced in diving and diving techniques,appointed by the employer in writing to supervise diving operations,to instruct other divers and to be responsible for safe diving practices. The diving supervisor will also be competent to supervise all classes of hydrocarbon exploration and development diving applicable to and appropriate to the particular operation which may include using helium/oxygen or similar mixtures,using submarine observation chambers and operating from submarine working chambers. In addition,the diving supervisor is responsible to the employer for other on-site supervisory functions relating to matters within the scope of this award,including liaison with other companies,supervision of employees,keeping of appropriate records and reports ensuring that all equipment is kept and properly maintained to comply with all rules and regulations and that all expendable items are maintained at an acceptable stock level. An employee must have worked as a diver for a period of not less than six months before being designated as a diving supervisor.

B.5 Hyperbaric Welder means an employee who is a trained and certified diver and is a qualified welder appointed to perform work in such capacity by the employer.

B.6 Life Support Technician means an employee who will,under the supervision of a diving supervisor,control and monitor all the systems and functions which relate to the life support,safety and health of any person inside hyperbaric chambers used in saturation diving.

B.7 Operator (ADS Operations) means an operator in relation to ADS Operations as defined in clause 3.1.

B.8 Senior Operator (OMB Operations) means an employee appointed as such to operate an observation manipulator bell as OMB,ARMS or MOB.

B.9 Supervisor (ADS Operations) means a supervisor in relation to ADS Operations as defined in clause 3.1.

B.10 Systems Maintenance Technician means an employee engaged specifically to perform maintenance and repair tasks on diving and ancillary equipment. Such an employee will typically have a relevant trade qualification and be familiar with diving operations.

Schedule C—2017 Part-day Public Holidays

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Sched D inserted by PR585482 ppc 16Sep16]

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

Name of employee:_____________________________________________

Name of employer:_____________________________________________

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

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

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

Amount of overtime worked:_______ hours and ______ minutes

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

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer
representative:________________________________________

Signature of employer
representative:________________________________________

Date signed:___/___/20___

Schedule E—Agreement to Take Annual Leave in Advance

[Sched E inserted by PR588750 ppc 20Dec16]

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

Name of employee:_____________________________________________

Name of employer:_____________________________________________

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

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

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

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer representative:________________________________________

Signature of employer representative:________________________________________

Date signed:___/___/20___

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

I agree that:

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

Name of parent/guardian:________________________________________

Signature of parent/guardian:________________________________________

Date signed:___/___/20___

Schedule F—Agreement to Cash Out Annual Leave

[Sched F inserted by PR588750 ppc 20Dec16]

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

Name of employee:_____________________________________________

Name of employer:_____________________________________________

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

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

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

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

Signature of employee:________________________________________

Date signed:___/___/20___

Name of employer representative:________________________________________

Signature of employer representative:________________________________________

Date signed:___/___/20___

Include if the employee is under 18 years of age:

Name of parent/guardian:________________________________________

Signature of parent/guardian:________________________________________

Date signed:___/___/20___

About this document
(1)
Code:
MA000108
Title:
Professional Diving Industry (Industrial) Award 2010
Effective:
4 Dec 2017
Updated:
7 Dec 2017
Instrument Type:
Modern Award
(22)
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
Professional Diving Industry (Industrial) Award 2010
(11)
(1)
4 Oct 2016
(22)
1.0.10.0