Aquaculture Industry Award 2010

Aquaculture Industry Award 2010

This Fair Work Commission consolidated modern award incorporates all amendments up to and including 26 October 2018 (PR610149,PR610280).

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

7Individual flexibility arrangements

8Consultation about major workplace change

8A—Consultation about changes to rosters or hours of work

9Dispute resolution

11Termination of employment

17Payment of wages

Current review matter(s):AM2014/47;AM2014/190;AM2014/196;AM2014/197;AM2014/200;AM2014/300;AM2014/301;AM2015/1;AM2015/2;AM2016/15;AM2016/17;AM2016/8

Table of Contents

[Varied by PR532631,PR538859,PR544519,PR546288,PR557581,PR573679,PR582963,PR584074, PR609448,PR610280]

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. Individual flexibility arrangements

Part 2—Consultation and Dispute Resolution

8. Consultation about major workplace change

8A. Consultation about changes to rosters or hours of work

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

14. Minimum wages

15. Allowances

16. Higher duties

17. Payment of wages

18. Superannuation

Part 5—Hours of Work and Related Matters

19. Ordinary hours of work and rostering

20. Special provisions for shiftworkers

21. Breaks

22. Overtime

Part 6—Leave and Public Holidays

23. Annual leave

24. Personal/carer’s leave and compassionate leave

25. Community service leave

26. Public holidays

27. Leave to deal with Family and Domestic Violence

Schedule A—Transitional Provisions

Schedule B—Classification Structure

Schedule C—Supported Wage System

Schedule D—School-based Apprentices

Schedule E—National Training Wage

Schedule F—2017 Part-day Public Holidays

Schedule G—Agreement to Take Annual Leave in Advance

Schedule H—Agreement to Cash Out Annual Leave

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

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. Individual flexibility arrangements

1. Title

This award is the Aquaculture Industry Award 2010.

2. Commencement and transitional

[Varied by PR542234]

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 PR542234 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 PR542234 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 PR542234 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,PR503662,PR546117]

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)

    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 PR546117 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 PR546117 ppc 01Jan14]

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

[Definition of Division 2B State award inserted by PR503662 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 PR503662 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 PR546117 ppc 01Jan14]

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

    leading hand means an employee who is required to supervise,direct or be in charge of another employee or employees

[Definition of MySuper product inserted by PR546117 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)

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

    standard rate means the minimum weekly wage for the Aquaculture attendant—Level 4 classification in clause 14Minimum wages

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

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

4. Coverage

4.1 This industry award applies throughout Australia to employers engaged in the breeding,production,farming and related harvesting of fish,shellfish,crustacea and marine vegetation and operations ancillary thereto including initial preparation for market and their employees in the classifications in Schedule B—Classification Structure to the exclusion of any other modern award.

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

4.3 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.

4.4 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.

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

4.6 This award covers employers which provide group training services for trainees engaged in the industry and/or parts of industry set out at clause 4.1 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. This subclause operates subject to the exclusions from coverage in this award.

4.7 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. Individual flexibility arrangements

[Varied by PR542234;7—Award flexibility renamed and substituted by PR610280 ppc 01Nov18]

7.1 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.

7.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.

7.3 An agreement may only be made after the individual employee has commenced employment with the employer.

7.4 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.

7.5 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.

7.6 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.

7.7 An agreement must be:

    (a) in writing;and

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

7.8 Except as provided in clause 7.7(b),an agreement must not require the approval or consent of a person other than the employer and the employee.

7.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.

7.10 The employer and the employee must genuinely agree,without duress or coercion to any variation of an award provided for by an agreement.

7.11 An agreement may be terminated:

    (a) at any time,by written agreement between the employer and the employee;or

    (b) by the employer or employee giving 13 weeks’written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

    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 s.144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see s.145 of the Act).

7.12 An agreement terminated as mentioned in clause 7.11(b) ceases to have effect at the end of the period of notice required under that clause.

7.13 The right to make an agreement under clause 7 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.

Part 2—Consultation and Dispute Resolution

8. Consultation about major workplace change

8A. Consultation about changes to rosters or hours of work

9. Dispute resolution

8. Consultation about major workplace change

[8—Consultation regarding major workplace change renamed and substituted by PR546288,8—Consultation renamed and substituted by PR610280 ppc 01Nov18]

8.1 If an employer makes a definite decision to make major changes in production,program,organisation,structure or technology that are likely to have significant effects on employees,the employer must:

    (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.

8.2 For the purposes of the discussion under clause 8.1(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.

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

8.4 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 8.1(b).

8.5 In clause 8:

    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.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5,such alteration is taken not to have significant effect.

8A. Consultation about changes to rosters or hours of work

[8A inserted by PR610280 ppc 01Nov18]

8A.1 Clause 8A 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.

8A.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).

8A.3 For the purpose of the consultation,the employer must:

    (a) provide to the employees and representatives mentioned in clause 8A.2 information about the proposed change (for example,information about the nature of the change and when it is to begin);and

    (b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.

8A.4 The employer must consider any views given under clause 8A.3(b).

8A.5 Clause 8A is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.

9. Dispute resolution

[Varied by PR542234,PR610280]

[9.1 substituted by PR610280 ppc 01Nov18]

9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.

[9.2 varied by PR542234;substituted by PR610280 ppc 01Nov18]

9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

[9.3 varied by PR542234;substituted by PR610280 ppc 01Nov18]

9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2,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.

[9.4 varied by PR542234;substituted by PR610280 ppc 01Nov18]

9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3,a party to the dispute may refer it to the Fair Work Commission.

[9.5 substituted by PR610280 ppc 01Nov18]

9.5 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.

[9.6 substituted by PR610280 ppc 01Nov18]

9.6 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.

[New 9.7 inserted by PR610280 ppc 01Nov18]

9.7 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 9.

[9.8 inserted by PR610280 ppc 01Nov18]

9.8 While procedures are being followed under clause 9 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.

[9.9 inserted by PR610280 ppc 01Nov18]

9.9 Clause 9.8 is subject to any applicable work health and safety legislation.

[9.7 renumbered as 9.10 by PR610280 ppc 01Nov18]

9.10 The parties must co-operate to ensure that the dispute resolution procedure is carried out in a timely manner and in good faith.

Part 3—Types of Employment and Termination of Employment

10. Types of employment

11. Termination of employment

12. Redundancy

10. Types of employment

[Varied by PR700543,PR700645]

10.1 General

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

      (i) full-time;

      (ii) part-time;or

      (iii) casual.

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

10.2 Part-time employment

    (a) A part-time employee:

      (i) works less than full-time hours of 38 per week;

      (ii) has reasonably predictable hours of work;and

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

    (b) At the time of engagement the employer and the part-time employee will agree in writing,on a regular pattern of work including the hours to be worked and the starting and finishing times on each day.

    (c) Any variation to this agreement will be recorded in writing.

    (d) An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

10.3 Casual employees

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

    (b) A casual employee will be paid an hourly rate of 1/38th of the weekly rate prescribed for the class of work performed,plus a loading of 25%.

    (c) Notwithstanding clause 10.3(b) a casual employee working:

      (i) overtime as prescribed in clause 22Overtime;

      (ii) on a public holiday as prescribed in clause 26Public holidays;or

      (iii) on Saturday or Sunday as prescribed in clause 19.2,

      will be paid at the penalty rate applicable to a full-time employee and is not paid in addition to the amount specified in clause 10.3(b).

    (d) The casual loading is paid instead of all paid leave whether under this award or the NES.

[10.3(e) inserted by PR700645 ppc 01Oct18]

    (e) A casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.

10.4 Right to request casual conversion

[10.4 inserted by PR700543 by ppc 01Oct18]

    (a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.

    (b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which,without significant adjustment,the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

    (c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’casual employment may request to have their employment converted to full-time employment.

    (d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.

    (e) Any request under this subclause must be in writing and provided to the employer.

    (f) Where a regular casual employee seeks to convert to full-time or part-time employment,the employer may agree to or refuse the request,but the request may only be refused on reasonable grounds and after there has been consultation with the employee.

    (g) Reasonable grounds for refusal include that:

      (i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award –that is,the casual employee is not truly a regular casual employee as defined in paragraph (b);

      (ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

      (iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;or

      (iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

    (h) For any ground of refusal to be reasonable,it must be based on facts which are known or reasonably foreseeable.

    (i) Where the employer refuses a regular casual employee’s request to convert,the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal,this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 9. Under that procedure,the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.

    (j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause,the employer and employee must discuss and record in writing:

      (i) the form of employment to which the employee will convert –that is,full-time or part-time employment;and

      (ii) if it is agreed that the employee will become a part-time employee,the matters referred to in clause 10.2(b).

    (k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.

    (l) Once a casual employee has converted to full-time or part-time employment,the employee may only revert to casual employment with the written agreement of the employer.

    (m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage),or have their hours reduced or varied,in order to avoid any right or obligation under this clause.

    (n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment,nor permits an employer to require a regular casual employee to so convert.

    (o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.

    (p) An employer must provide a casual employee,whether a regular casual employee or not,with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018,an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.

    (q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in paragraph (p).

11. Termination of employment

[11 substituted by PR610280 ppc 01Nov18]

Note:The NES sets out requirements for notice of termination by an employer. See ss.117 and 123 of the Act.

11.1 Notice of termination by an employee

    (a) This clause applies to all employees except those identified in ss.123(1) and 123(3) of the Act.

    (b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.

      Table 1—Period of notice

    Column 1

    Employee’s period of continuous service with the employer at the end of the day the notice is given

    Column 2

    Period of notice

    Not more than 1 year

    1 week

    More than 1 year but not more than 3 years

    2 weeks

    More than 3 years but not more than 5 years

    3 weeks

    More than 5 years

    4 weeks

      Note:The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee.

    (c) In paragraph (b) continuous service has the same meaning as in s.117 of the Act.

    (d) If an employee who is at least 18 years old does not give the period of notice required under paragraph (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.

    (e) If the employer has agreed to a shorter period of notice than that required under paragraph (b),then no deduction can be made under paragraph (d).

    (f) Any deduction made under paragraph (d) must not be unreasonable in the circumstances.

11.2 Job search entitlement

    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.

11.3 The time off under clause 11.2 is to be taken at times that are convenient to the employee after consultation with the employer.

12. Redundancy

[Varied by PR503662,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 11.2.

12.5 Transitional provisions –NAPSA employees

[12.5 renamed by PR503662;deleted by PR561478 ppc 05Mar15]

12.6 Transitional provisions –Division 2B State employees

[12.6 inserted by PR503662;deleted by PR561478 ppc 05Mar15]

Part 4—Minimum Wages and Related Matters

13. Classifications

14. Minimum wages

15. Allowances

16. Higher duties

17. Payment of wages

18. Superannuation

13. Classifications

Employees covered by this award must be classified according to the structure set out in Schedule B—Classification Structure and paid the minimum wages set out in clause 14Minimum wages.

14. Minimum wages

[Varied by PR998014,PR509145,PR522976,PR536779,PR545010,PR551702,PR566794,PR579905,PR592216,PR593885,PR606440]

[14.1 varied by PR998014,PR509145,PR522976,PR536779,PR551702,PR566794,PR579905,PR592216,PR606440 ppc 01Jul18]

14.1 Employees are entitled to the following minimum wages for the classification in which they are employed:

    Classification

    Minimum weekly wage

    Aquaculture attendants

    $

    Level 1

    719.20

    Level 2

    729.60

    Level 3

    798.10

    Level 4

    837.40

[New 14.2 inserted by PR545010 ppc 01Jan14]

14.2 Junior employees must be paid the following percentage of the appropriate adult minimum weekly wage in clause 14.1.

    Age

    %

    Under 17 years of age

    60

    17 years of age

    70

    18 years of age

    80

    19 years of age

    90

    20 years of age

    100

14.3 Supported wage system

[14.2 renumbered as 14.3 by PR545010 ppc 01Jan14]

14.4 School-based apprentices

[14.3 renumbered as 14.4 by PR545010 ppc 01Jan14]

14.5 National training wage

[14.4 renumbered as 14.5 by PR545010;substituted by PR593885]

    (a) Schedule E to the Miscellaneous Award 2010 sets out minimum wage rates and conditions for employees undertaking traineeships.

[14.5(b) varied by PR606440 ppc 01Jul18]

    (b) This award incorporates the terms of Schedule E to the Miscellaneous Award 2010 as at 1 July 2018. Provided that any reference to “this award”in Schedule E to the Miscellaneous Award 2010 is to be read as referring to the Aquaculture Industry Award 2010 and not the Miscellaneous Award 2010.

15. Allowances

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

[Varied by PR998150,PR509266,PR523096,PR536899,PR538859,PR551822,PR566923,PR579620,PR592367,PR606590]

15.1 First aid allowance

    Any full-time employee holding first aid qualifications from St John Ambulance and appointed by the employer to perform first aid duty will receive 0.34% of the standard rate per working day.

15.2 Meal allowance

[15.2(a) varied by PR998150,PR509266,PR523096,PR536899,PR551822,PR566923,PR579620,PR592367,PR606590 ppc 01Jul18]

    (a) An employee required to work overtime for more than two hours will either be supplied with a meal by the employer or paid $16.90.

[15.2(b) varied by PR998150,PR509266,PR523096,PR536899,PR551822,PR566923,PR579620,PR592367,PR606590 ppc 01Jul18]

    (b) Unless the employer advises an employee on the previous day or earlier that the amount of overtime to be worked will necessitate the partaking of a second or subsequent meal (as the case may be) the employer will provide such second or subsequent meal or make payment of $16.90 per meal.

[15.2(c) varied by PR998150,PR509266,PR523096,PR536899,PR551822,PR566923,PR579620,PR592367,PR606590 ppc 01Jul18]

    (c) If an employee,pursuant to notice,has provided a meal or meals and is not required to work overtime or is required to work less than the amount advised,they will be paid $16.90 for each surplus meal provided.

15.3 Tool allowance

[15.3 varied by PR998150,PR579620,PR592367 ppc 01Jul17]

    All employees who are required to use tools will either be supplied with all tools by the employer or be paid a tool allowance of $9.83 per week.

15.4 Travel time and allowance

[15.4 varied by PR523096,PR536899;substituted by PR538859 ppc 12Jul13]

    (a) An employee who on any day or from day to day is required to work at a workplace away from the usual workplace will,at the direction of the employer,present for work at such workplace at the usual starting time;but all time reasonably spent in reaching and returning from such workplace (in excess of the time normally spent in travelling from the employee’s home to their usual workplace and returning) will be paid at ordinary rates of pay.

    (b) When a tuna fish farm is located away from the shore so that some means of conveyance is necessary for an employee to pass between the shore and the tuna farm before starting and after finishing work,the time occupied by the employee before starting and after finishing work spent travelling or necessarily waiting for the conveyance will be paid at ordinary rates but,subject to the majority of the employees agreeing by means of a vote,that time will not count as part of the daily working time,except that the provisions of clause 22.3 will continue to apply.

    (c) Only trips in excess of 30 minutes will invoke the travel time provisions set out in sub-clause (b) above and they will only apply to an employee who is travelling,resting or in a state of rest and recline. Where an employee is required to engage in the performance of work tasks,or where the majority of the employees have not agreed in accordance with subclause 15.4(b),such time will be counted as daily working time.

    (d) Where an employee is required to remain away from their usual place of residence,the employee will be paid for all expenses reasonably incurred while so absent.

[15.4(e) varied by PR551822 ppc 01Jul14]

    (e) Where an employee,with the approval of the employer,is required to use a private motor vehicle,the employee will be paid $0.78 per kilometre travelled.

15.5 Diving allowance

    (a) Finfish attendants who are required by the employer to undertake diving duties will receive an allowance of 0.47% of the standard rate per hour or part thereof,where diving equipment,excluding tools,are supplied by the employer.

[15.5(b) varied by PR998150,PR579620,PR592367 ppc 01Jul17]

    (b) Where the employee supplies their own diving equipment,excluding tools,the employee will be paid an amount of $5.82 per hour or part thereof in addition to the amount prescribed in clause 15.5(a).

15.6 Protective clothing and equipment

    Where an employee is required to wear protective clothing which is not provided by the employer (e.g. oilskins,gumboots,overalls,goggles,safety boots etc.),the employer must reimburse the employee for the cost of purchasing such protective clothing and equipment.

15.7 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.

[15.7(b) varied by PR523096 ppc 01Jul12]

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

    Allowance

    Applicable Consumer Price Index figure

    Meal allowance

    Take away and fast foods sub-group

    Tool/equipment allowance

    Tools and equipment for house and garden component of the household appliances,utensils and tools sub-group

    Vehicle allowance

    Private motoring sub-group

   

16. Higher duties

16.1 An employee who is required to perform work for which a higher rate is fixed than that provided for their ordinary duties will,if such work exceeds a total of two hours on any day,be paid for all work done on such day at the higher rate.

16.2 In all other cases,the employee will be paid the higher rate for the actual time worked.

17. Payment of wages

[Varied by PR610149]

17.1 Period of payment

    (a) Where it is agreed between an employer and an employee,wages may be paid on a weekly or fortnightly basis.

    (b) Wages will be paid no later than Thursday of the agreed pay period.

    (c) By agreement between the employer and the majority of employees,payment of wages may be made on a day later than Thursday.

17.2 Method of payment

    (a) Wages may be paid by cash,cheque or electronic funds transfer into a nominated bank or financial institution account,as agreed between an employer and an employee.

    (b) If payment is by cash or cheque,wages will be paid during ordinary working hours.

17.3 Payment on termination of employment

[17.3 inserted by PR610149 ppc 01Nov18]

    (a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

      (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 paragraph (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:Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under this clause. For example,the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under s.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 s.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.

18. Superannuation

[Varied by PR997237,PR546117]

18.1 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.

18.2 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.

18.3 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 18.2.

    (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 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

    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 that is chosen by the employee,the employer must make the superannuation contributions provided for in clause 18.2 and pay the amount authorised under clauses 18.3(a) or (b) to one of the following superannuation funds or its successor:

    (a) AustralianSuper;

[18.4(b) inserted by PR997237 from 18May10]

    (b) Austsafe Super Pty Ltd;

[18.4(b) renumbered as 18.4(c) by PR997237 from 18May10]

    (c) Prime Super;

[18.4(c) renumbered as 18.4(d) by PR997237 from 18May10]

    (d) Tasplan;

[18.4(d) renumbered as 18.4(e) by PR997237 from 18May10;varied by PR546117 ppc 01Jan14]

    (e) 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

[18.4(f) inserted by PR546117 ppc 01Jan14]

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

Part 5—Hours of Work and Related Matters

19. Ordinary hours of work and rostering

20. Special provisions for shiftworkers

21. Breaks

22. Overtime

19. Ordinary hours of work and rostering

[19 substituted by PR538859 ppc 12Jul13]

19.1 Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.

19.2 Ordinary hours of work—day workers

    (a) Subject to clause 19.5,the ordinary hours of work for a day worker will not exceed 38 hour per week on average,over a maximum of 12 weeks.

    (b) The ordinary hours of work may be worked on any five days Monday to Sunday inclusive.

    (c) The ordinary hours of work are to be worked continuously,except for meal breaks,at the discretion of the employer between 5.00 am and 7.00 pm for up to 10 hours a day.

    (d) Any work performed in excess of or outside the spread of hours must be paid for at overtime rates.

    (e) The rate to be paid to a day worker for ordinary time worked on a Saturday is time and a quarter.

    (f) The rate to be paid to a day worker for ordinary time worked on a Sunday is time and a half.

    (g) A day worker required to work on a public holiday must be paid for a minimum of three hours’work at the rate of 250%. The 250% rate must be paid to the employee until the employee is relieved from duty.

    (h) Where an employee was employed before 12 July 2013,the employee cannot be required to work shiftwork,unless the employee otherwise agrees.

19.3 Ordinary hours of work—continuous shiftworkers

    (a) Continuous shiftwork means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except for breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer.

    (b) Subject to clause 19.3(c),the ordinary hours of work for a continuous shiftworker are,at the discretion of the employer,to average 38 hours per week inclusive of meal breaks and must not exceed 152 hours in 28 consecutive days. A continuous shiftworker is entitled to a 20 minute meal break on each shift which must be counted as time worked. This paid break is in place of the meal break set out in clause 21.1.

    (c) By agreement between the employer and the majority of employees concerned,a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 weeks. Such 12 week period may be extended to 26 weeks provided that the daily ordinary hours shall remain a maximum of 10 ordinary hours and provided that the majority of the employees in the section or sections concerned agree by means of a vote.

    (d) Except at the regular changeover of shifts,an employee must not be required to work more than one shift in each 24 hours.

19.4 Ordinary hours of work—non-continuous shiftworkers

    (a) Subject to clause 19.4(b),the ordinary hours of work for a non-continuous shiftworker are an average of 38 per week and must not exceed 152 hours in 28 consecutive days. A non-continuous shiftworker is entitled to a 20 minute meal break on each shift which must be counted as time worked. This paid break is in place of the meal breaks set out in clause 21.1.

    (b) By agreement between the employer and the majority of employees concerned,a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 weeks. Such 12 week period may be extended to 26 weeks provided that the daily ordinary hours shall remain a maximum of 10 ordinary hours and provided that the majority of the employees in the section or sections concerned agree by means of a vote.

    (c) The ordinary hours of work must be worked continuously,except for meal breaks,at the discretion of the employer.

    (d) Except at changeover of shifts an employee must not be required to work more than one shift in each 24 hours.

19.5 Methods of arranging ordinary working hours

    (a) Subject to the employer’s right to fix the daily hours of work for day workers from time to time within the spread of hours referred to in clause 19.2(c) and the employer’s right to fix the commencing and finishing time of shifts from time to time,the arrangement of ordinary working hours must be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned. This does not preclude the employer reaching agreement with individual employees about how their working hours are to be arranged.

    (b) The matters on which agreement may be reached include:

      (i) how the hours are to be averaged within a work cycle established in accordance with clauses 19.2,19.3 and 19.4 provided that the maximum ordinary hours per day shall be 10 hours;

      (ii) the duration of the work cycle for day workers provided that such duration does not exceed 12 weeks. Such 12 week period may be extended to 26 weeks provided that the daily ordinary hours shall be a maximum of 10 ordinary hours and provided that the majority of the employees in the section or sections concerned agree by means of a vote.

      (iii) rosters which specify the starting and finishing times of working hours;

      (iv) a period of notice of a rostered day off which is no less than four weeks;

      (v) substitution of rostered days off;

      (vi) accumulation of rostered days off;

      (vii) arrangements which allow for flexibility in relation to the taking of rostered days off.

    (c) Where an employee works on a shift other than a rostered shift,the employee must:

      (i) if employed on continuous work,be paid at the rate of 200%;or

      (ii) if employed on other shiftwork,be paid at the rate of 150% for the first three hours and 200% thereafter.

    (d) Clause 19.5(c) does not apply when the time is worked:

      (i) by arrangement between the employees themselves;

      (ii) for the purposes of effecting the customary rotation of shifts.

20. Special provisions for shiftworkers

[New 20 inserted by PR538859 ppc 12Jul13]

20.1 For the purposes of this award:

    shift work means work carried on in the form of at least two consecutive shifts of employees rostered to work during each twenty four hour period.

    (a) rostered shift means any shift of which the employee concerned has had at least 14 days’notice unless a lesser period has been agreed;

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

    (c) night shift means any shift finishing after midnight and at or before 8.00 am.

20.2 By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee,the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span.

20.3 Afternoon and night shift allowances

    (a) An employee who works on afternoon shift must be paid 15% extra for such shift.

    (b) An employee who works on night shift must be paid 30% extra for such shift.

    (c) An employee who works on an afternoon or night shift which does not continue:

      (i) for at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day enterprise (where no more than eight ordinary hours are worked on each shift);or

      (ii) for at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift and the shift arrangement is in accordance with clauses 19.3 or 19.4);

      must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.

20.4 Rate for working on Saturday shifts

    The rate at which a shiftworker must be paid for work performed between midnight on Friday and midnight on Saturday is 150%. The extra rate is in substitution for and not cumulative upon the shift allowances prescribed in clause 20.3.

20.5 Rate for working on Sunday and public holiday shifts

    (a) The rate at which a continuous shiftworker must be paid for work on a rostered shift the major portion of which is performed on a Sunday or public holiday is 200%.

    (b) The rate at which a shiftworker,on other than continuous shiftwork,must be paid for all time worked on a Sunday is 200% and on a public holiday is 250%.

    (c) Where shifts commence between 11.00 pm and midnight on a Sunday or public holiday,the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift. However,the time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public holiday must be regarded as time worked on the Sunday or public holiday.

    (d) Where shifts fall partly on a public holiday,the shift which has the major portion falling on the public holiday must be regarded as the public holiday shift. By agreement between the employer and the majority of employees concerned,the shift which has the minor portion falling on the public holiday may be regarded as the public holiday shift instead.

    (e) The extra rates in clause 20.5 are in substitution for and not cumulative upon the shift allowances prescribed in clause 20.3.

21. Breaks

[20 renumbered as 21 by PR538859 ppc 12Jul13]

21.1 Meal breaks

    (a) A period of not less than 30 minutes,not later than five hours after commencing work,will be allowed for a meal break.

    (b) Provided that for the purpose of ensuring completion of a task or tasks before change of tide or to ensure the timely return of fish to a growing or holding area in the water,the employer and employee may agree to a break for a meal occurring at some other time prior to the cessation of work on that day.

21.2 Tea breaks

    (a) A tea break of 10 minutes’duration,to be counted as time worked,will be allowed during the morning and afternoon periods of each working day to each individual employee at a time to be arranged by the employer.

    (b) The afternoon tea break provided in clause 21.2(a) will not be taken in any establishment where the majority of employees agree to forego the break and cease normal work 10 minutes earlier each day.

[21.2(c) inserted by PR538859 ppc 12Jul13]

    (c) The tea breaks set out in (b) above may be staggered throughout the day and taken at times which suit operational requirements and are consistent with the employer’s fatigue management plan .

21.3 Crib breaks

    (a) An employee working overtime will be allowed a crib break of 20 minutes’duration without deduction of pay after each four hours of overtime worked if the employee continues work after such a break.

    (b) Where the period of overtime is to be for more than one and a half hours,an employee will be allowed a meal break of 20 minutes after ordinary hours before commencing overtime. This break will be paid for at ordinary rates.

    (c) An employer and employee may agree to any variation of the provisions of clause 21.3 to meet the circumstances of the work at hand provided that the employer will not be required to make payment in respect of any time allowed in excess of 20 minutes.

22. Overtime

[21 renumbered as 22 and substituted by PR538859 ppc 12Jul13;corrected by PR539301 ppc 12Jul13;varied by PR584074]

22.1 All work done in excess of 38 hours a week or outside the ordinary hours on any day or shift (as defined in clauses 19.2,19.3 and 19.4) or in excess of 10 hours per day will be paid for at the rate of time and a half for the first three hours and double time thereafter until the completion of the overtime work. For a continuous shiftworker the rate for working overtime is double time.

22.2 In computing overtime each day’s work will stand alone.

22.3 Rest period after overtime

    (a) When overtime work is necessary it must,wherever reasonably practicable,be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.

    (b) An employee who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must,subject to the other provisions of clause 22.3,be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.

    (c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of double time until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.

    (d) By agreement between the employer and individual employee,the 10 hour break provided for in clause 22.3 may be reduced to a period of no less than eight hours.

    (e) The provisions of clause 22.3 will apply in the case of a shiftworker as if eight hours were substituted for 10 hours when overtime is worked:

      (i) for the purpose of changing shift rosters;or

      (ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker;or

      (iii) where a shift is worked by arrangement between the employees themselves.

22.4 Saturday work

    A day worker required to work overtime on a Saturday must be paid for a minimum of three hours’work at the rate of 150% for the first three hours and 200% thereafter,except where the overtime is continuous with overtime commenced on the previous day.

22.5 Sunday work

    An employee required to work overtime on a Sunday must be paid for a minimum of three hours’work at the rate of 200%. The 200% is to be paid until the employee is relieved from duty.

22.6 Public holiday work

    (a) A day worker required to work overtime on a public holiday must be paid for a minimum of three hours’work at the rate of 250%. The 250% is to be paid until the employee is relieved from duty.

    (b) A continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours’work at the rate of 200%.

    (c) A non-continuous shiftworker required to work overtime on a public holiday must be paid for a minimum of three hours’work at the rate of 250%. The 250% is to be paid until the employee is relieved from duty.

22.7 Time off instead of payment for overtime

[22.7 inserted by PR584074 ppc 22Aug16]

    (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 22.7.

    (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 I. There is no requirement to use the form of agreement set out at Schedule I. An agreement under clause 22.7 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 22.7 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 22.7 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 22.7 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 22.7 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 22.7 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 22.7.

Part 6—Leave and Public Holidays

23. Annual leave

24. Personal/carer’s leave and compassionate leave

25. Community service leave

26. Public holidays

27. Leave to deal with Family and Domestic Violence

23. Annual leave

[22 renumbered as 23 and varied by PR538859 ppc 12Jul13,varied by PR546331,PR567228,PR582963,PR588795]

23.1 Annual leave is provided for in Division 6 of the NES. Annual leave does not apply to casual employees.

23.2 Annual leave in advance

[23.2 renumbered and substituted by PR582963 ppc 29Jul16]

    (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 23.2 is set out at Schedule G. There is no requirement to use the form of agreement set out at Schedule G.

    (c) The employer must keep a copy of any agreement under clause 23.2 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 23.2,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.

23.3 Where an employer intends temporarily to close (or reduce to nucleus) the place of employment or a section of it for the purpose,amongst others,of allowing annual leave to the employees concerned or a majority of them,the employer may give those employees one month’s notice in writing of an intention to apply the provisions of this clause. In the case of any employee engaged after notice has been given,notice must be given to that employee on the date of their engagement.

[23.3(a) substituted by PR546331 ppc 24Jan14]

    (a) Where an employee has been given notice pursuant to clause 23.3 and the employee has:

      (i) accrued sufficient annual leave to cover the full period of closing,the employee must take paid annual leave for the full period of closing;

      (ii) insufficient accrued annual leave to cover the full period of closing,the employee must take paid annual leave to the full amount accrued and leave without pay for the remaining period of the closing;or

      (iii) no accrued annual leave,the employee must take leave without pay for the full period of closing.

[23.3(b) substituted by PR546331 ppc 24Jan14]

    (b) Public holidays that fall within the period of close down will be paid as provided for in this award and will not count as a day of annual leave or leave without pay.

23.4 Excessive leave accruals:general provision

[23.4 substituted by PR588795 ppc 20Dec16]

    Note:Clauses 23.4 to 23.6 contain provisions,additional to the National Employment Standards,about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2,Division 6 of the Fair Work Act.

    (a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’paid annual leave (or 10 weeks’paid annual leave for a shiftworker,as defined by 23.9).

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

    (c) Clause 23.5 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

    (d) Clause 23.6 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

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

[New 23.5 inserted by PR588795 ppc 20Dec16]

    (a) If an employer has genuinely tried to reach agreement with an employee under clause 23.4(b) but agreement is not reached (including because the employee refuses to confer),the employer may direct the employee in writing to take one or more periods of paid annual leave.

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

      (i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid annual leave arrangements (whether made under clause 23.4,23.5 or 23.6 or otherwise agreed by the employer and employee) are taken into account;and

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

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

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

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

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

    Note 1:Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 23.5(b)(i).

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

23.6 Excessive leave accruals:request by employee for leave

[New 23.6 inserted by PR588795;substituted by PR588795 ppc 20Dec17]

    (a) If an employee has genuinely tried to reach agreement with an employer under clause 23.4(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 paragraph (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 23.5(a) that,when any other paid annual leave arrangements (whether made under clause 23.4,23.5 or 23.6 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 paragraph (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 23.4,23.5 or 23.6 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 paragraph (a) more than 4 weeks’paid annual leave (or 5 weeks’paid annual leave for a shiftworker,as defined by clause 23.9) in any period of 12 months.

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

[23.5 renumbered as 23.7 by PR588795 ppc 20Dec16]

23.7 Before the start of the employee’s annual leave the employer must pay the employee:

    (a) instead of the base rate of pay referred to in s.90(1) of the Act,the amount the employee would have earned for working their normal hours,exclusive of overtime,had they not been on leave;and

    (b) an additional loading of 17.5% of the minimum rate prescribed in clause 14Minimum wages.

23.8 Electronic funds transfer (EFT) payment of annual leave

[New 23.6 inserted by PR582963 ppc 29Jul16;renumbered as 23.8 by PR588795 ppc 20Dec16]

    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.

23.9 Definition of shiftworker

[23.6 inserted by PR538859 ppc 12Jul13,substituted by PR567228 ppc 27May15,renumbered as 23.7 by PR582963 ppc 29Jul16;renumbered as 23.9 by PR588795 ppc 20Dec16]

    For the purpose of the additional week of annual leave provided for in s.87(1)(b) of the Act,a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.

23.10 Cashing out of annual leave

[23.8 inserted by PR582963 ppc 29Jul16;renumbered as 23.10 by PR588795 ppc 20Dec16]

    (a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 23.10.

    (b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 23.10.

    (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 23.10 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 23.10 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 23.10 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 23.10.

    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 23.10.

    Note 3:An example of the type of agreement required by clause 23.10 is set out at Schedule H. There is no requirement to use the form of agreement set out at Schedule H.

24. Personal/carer’s leave and compassionate leave

[23 renumbered as 24 by PR538859 ppc 12Jul13]

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

25. Community service leave

[24 renumbered as 25 by PR538859 ppc 12Jul13]

Community service leave is provided for in the NES.

26. Public holidays

[25 renumbered as 26 by PR538859 ppc 12Jul13]

Public holidays are provided for in the NES.

26.1 Substitution of public holidays by agreement

    By agreement between the employer and the majority of employees in an enterprise,another day may be substituted for a day provided for in the NES.

26.2 Payment for work on a public holiday

    If an employee works on any public holiday provided for in the NES or another day substituted in accordance with clause 26.1,the employee will be paid double time and a half.

27. Leave to deal with Family and Domestic Violence

[27 inserted by PR609448 ppc 01Aug18]

27.1 This clause applies to all employees,including casuals.

27.2 Definitions

    (a) In this clause:

      family and domestic violence means violent,threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.

      family member means:

      (i) a spouse,de facto partner,child,parent,grandparent,grandchild or sibling of the employee;or

      (ii) a child,parent,grandparent,grandchild or sibling of a spouse or de facto partner of the employee;or

      (iii) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

    (b) A reference to a spouse or de facto partner in the definition of family member in clause 27.2(a) includes a former spouse or de facto partner.

27.3 Entitlement to unpaid leave

    An employee is entitled to 5 days’unpaid leave to deal with family and domestic violence,as follows:

    (a) the leave is available in full at the start of each 12 month period of the employee’s employment;and

    (b) the leave does not accumulate from year to year;and

    (c) is available in full to part-time and casual employees.

    Note:1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.

      2. The employer and employee may agree that the employee may take more than 5 days’unpaid leave to deal with family and domestic violence.

27.4 Taking unpaid leave

    An employee may take unpaid leave to deal with family and domestic violence if the employee:

    (a) is experiencing family and domestic violence;and

    (b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

    Note:The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation),attending urgent court hearings,or accessing police services.

27.5 Service and continuity

    The time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

27.6 Notice and evidence requirements

    (a) Notice

      An employee must give their employer notice of the taking of leave by the employee under clause 27. The notice:

      (i) must be given to the employer as soon as practicable (which may be a time after the leave has started);and

      (ii) must advise the employer of the period,or expected period,of the leave.

    (b) Evidence

      An employee who has given their employer notice of the taking of leave under clause 27 must,if required by the employer,give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause 27.4.

      Note:Depending on the circumstances such evidence may include a document issued by the police service,a court or a family violence support service,or a statutory declaration.

27.7 Confidentiality

    (a) Employers must take steps to ensure information concerning any notice an employee has given,or evidence an employee has provided under clause 27.6 is treated confidentially,as far as it is reasonably practicable to do so.

    (b) Nothing in clause 27 prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life,health or safety of the employee or another person.

    Note:Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

27.8 Compliance

    An employee is not entitled to take leave under clause 27 unless the employee complies with clause 27.

Schedule A—Transitional Provisions

[Varied by PR503662]

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 PR503662 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

B.1 Aquaculture Attendant Level 1

B.1.1 Finfish stream

    A finfish attendant Level 1 means a person who has been employed for less then four months to:

    (a) operate boats (including loading and unloading boats);

    (b) moor pens;

    (c) wash and change nets;and/or

    (d) move materials and equipment.

B.1.2 Shellfish stream

    A shellfish attendant Level 1 means a person who has been employed for less than four months’in the industry and who is engaged on either an inter-tidal,deep water or land-based shellfish enterprise to perform with supervision some or all of the following:

    (a) operating boats or punts;

    (b) loading,unloading,moving,packing,constructing of shellfish culture mediums (including baskets,cages,droplines and oyster racking);

    (c) recording data;and/or

    (d) operating mechanical equipment such as grading machines;preparation of product for market/transport as well as the general maintenance duties.

B.2 Aquaculture Attendant Level 2

B.2.1 Finfish stream

    A finfish attendant Level 2 means a person with more than four months’service with one or more employer who is employed in finfish aquaculture to:

    (a) operate boats (including loading and unloading boats);

    (b) moor pens;

    (c) wash and change nets;and/or

    (d) move materials and equipment and prepare the product for market/transport.

B.2.2 Shellfish stream

    A shellfish attendant Level 2 means an employee who has completed at least four months’service as a shellfish attendant Level 1 and in addition is capable of performing,without constant supervision,some or all of the following functions:

    (a) operating boats or punts;

    (b) loading,unloading,moving,packing,constructing of shellfish culture mediums (including baskets,cages,droplines and oyster racking);

    (c) recording data;and/or

    (d) operating mechanical equipment such as grading machines,preparation of product for market/transport,as well as general maintenance duties.

B.3 Aquaculture Attendant Level 3

B.3.1 Finfish stream

    A finfish attendant Level 3 is an employee who has demonstrated the competency to perform the tasks as below:

    (a) harvest fish (including bleeding) and preparation for market/transport;

    (b) husband fish (including observing,separating,mortality retrieval,feeding);and/or

    (c) carry out general housekeeping and maintenance.

B.3.2 Shellfish stream

    A shellfish attendant Level 3 means an employee who,in addition to performing some or all of the functions of shellfish attendant Level 2 may be required to accept responsibility for acting in a minor supervisory capacity in directing the work of other employees.

B.4 Aquaculture Attendant Level 4

B.4.1 Finfish stream

    A Finfish attendant Level 4 means a person who has been employed to perform the following:

    (a) husband fish (including observing,separating,mortality retrieval,feeding);

    (b) carry out general housekeeping and maintenance;

    (c) carry out basic net repairs;and/or

    (d) may be required to perform diving duties.

B.4.2 Shellfish stream

    A shellfish attendant Level 4 is an employee who,in addition to performing some or all of the functions of shellfish attendant Level 3,directs the work of other employees and accepts responsibility for acting in charge.

Schedule C—Supported Wage System

[Varied by PR998748,PR510670,PR525068,PR537893,PR542234,PR551831,PR568050,PR581528,PR592689,PR606630]

C.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.

[C.2 varied by PR568050 ppc 01Jul15]

C.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

C.3 Eligibility criteria

C.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.

C.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.

C.4 Supported wage rates

C.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 C.5)

    %

    Relevant minimum wage

    %

    10

    10

    20

    20

    30

    30

    40

    40

    50

    50

    60

    60

    70

    70

    80

    80

    90

    90

[C.4.2 varied by PR998748,PR510670,PR525068,PR537893,PR551831,PR568050,PR581528,PR592689,PR606630 ppc 01Jul18]

C.4.2 Provided that the minimum amount payable must be not less than $86 per week.

C.4.3 Where an employee’s assessed capacity is 10%,they must receive a high degree of assistance and support.

C.5 Assessment of capacity

C.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 Supported Wage System 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.

C.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.

C.6 Lodgement of SWS wage assessment agreement

[C.6.1 varied by PR542234 ppc 04Dec13]

C.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.

[C.6.2 varied by PR542234 ppc 04Dec13]

C.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.

C.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 supported wage system.

C.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.

C.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.

C.10 Trial period

C.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 four weeks) may be needed.

C.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.

[C.10.3 varied by PR998748,PR510670,PR525068,PR537893,PR551831,PR568050,PR581528, PR592689,PR606630 ppc 01Jul18]

C.10.3 The minimum amount payable to the employee during the trial period must be no less than $86 per week.

C.10.4 Work trials should include induction or training as appropriate to the job being trialled.

C.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 C.5.

Schedule D—School-based Apprentices

D.1 This schedule applies to school-based apprentices. A school-based apprentice is a person who is undertaking an apprenticeship in accordance with this schedule while also undertaking a course of secondary education.

D.2 A school-based apprenticeship may be undertaken in the trades covered by this award under a training agreement or contract of training for an apprentice declared or recognised by the relevant State or Territory authority.

D.3 The relevant minimum wages for full-time junior and adult apprentices provided for in this award,calculated hourly,will apply to school-based apprentices for total hours worked including time deemed to be spent in off-the-job training.

D.4 For the purposes of clause D.3,where an apprentice is a full-time school student,the time spent in off-the-job training for which the apprentice must be paid is 25% of the actual hours worked each week on-the-job. The wages paid for training time may be averaged over the semester or year.

D.5 A school-based apprentice must be allowed,over the duration of the apprenticeship,the same amount of time to attend off-the-job training as an equivalent full-time apprentice.

D.6 For the purposes of this schedule,off-the-job training is structured training delivered by a Registered Training Organisation separate from normal work duties or general supervised practice undertaken on the job.

D.7 The duration of the apprenticeship must be as specified in the training agreement or contract for each apprentice but must not exceed six years.

D.8 School-based apprentices progress through the relevant wage scale at the rate of 12 months progression for each two years of employment as an apprentice.

D.9 The apprentice wage scales are based on a standard full-time apprenticeship of four years (unless the apprenticeship is of three years duration). The rate of progression reflects the average rate of skill acquisition expected from the typical combination of work and training for a school-based apprentice undertaking the applicable apprenticeship.

D.10 If an apprentice converts from school-based to full-time,all time spent as a full-time apprentice will count for the purposes of progression through the relevant wage scale in addition to the progression achieved as a school-based apprentice.

D.11 School-based apprentices are entitled pro rata to all of the other conditions in this award.

Schedule E—National Training Wage

[Varied by PR998014,PR509145,PR522976,PR536779,PR545787,PR551702,PR566794,PR579905;deleted by PR593885 ppc 01Jul17]

Schedule F—2017 Part-day Public Holidays

[Sched F 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.

F.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 F.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 F.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 G—Agreement to Take Annual Leave in Advance

[Sched G inserted by PR582963 ppc 29Jul16]

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 H—Agreement to Cash Out Annual Leave

[Sched H inserted by PR582963 ppc 29Jul16]

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 I—Agreement for Time Off Instead of Payment for Overtime

[Sched I inserted by PR584074 ppc 22Aug16]

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___

About this document
(1)
Code:
MA000114
Title:
Aquaculture Industry Award 2010
Effective:
26 Oct 2018
Updated:
30 Oct 2018
Instrument Type:
Modern Award
(32)
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
Aquaculture Industry Award 2010
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(1)
2 Sep 2016
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