Aquaculture Industry Award 2010

Aquaculture Industry Award 2010

 

The above award was first made on 4 December 2009 [PR991081]

This consolidated version of the award includes variations made on 18 May 2010 [PR997237]; 4 June 2010 [PR997772]; 21 June 2010 [PR998014]; 21 June 2010 [PR998150]; 29 June 2010 [PR998748]; 6 December 2010 [PR503662]; 20 June 2011 [PR509145]; 21 June 2011 [PR509266]; 21 June 2011 [PR510670]; 18 June 2012 [PR522976]; 18 June 2012 [PR525068]; 19 June 2012 [PR523096]

 

 

Table of Contents

Part 1 - Application and Operation

1.              Title

2.              Commencement and transitional

3.              Definitions and interpretation

4.              Coverage

5.              Access to the award and the National Employment Standards

6.              The National Employment Standards and this award

7.              Award flexibility

Part 2 - Consultation and Dispute Resolution

8.              Consultation regarding major workplace change

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.              Breaks

21.              Overtime

Part 6 - Leave and Public Holidays

22.              Annual leave

23.              Personal/carer's leave and compassionate leave

24.              Community service leave

25.              Public holidays

Schedule A - Transitional Provisions

Schedule B - Classification Structure

Schedule C - Supported Wage System

Schedule D - School - based Apprentices

Schedule E - National Training Wage

Appendix E1: Allocation of Traineeships to Wage Levels

 


Part 1 - Application and Operation

 

1.              Title

This award is the Aquaculture Industry Award 2010.

2.              Commencement and transitional

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              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, Fair Work Australia may make any order it considers appropriate to remedy the situation.

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

2.6              Fair Work Australia 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]

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 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)

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

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 14 - Minimum 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.              Award flexibility

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

(a)              arrangements for when work is performed;

(b)              overtime rates;

(c)              penalty rates;

(d)              allowances; and

(e)              leave loading.

7.2              The employer and the individual employee must have genuinely made the agreement without coercion or duress.

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

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

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

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

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

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

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

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

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

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

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

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

7.8              The agreement may be terminated:

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

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

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

Part 2 - Consultation and Dispute Resolution

 

8.              Consultation regarding major workplace change

8.1              Employer to notify

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

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

8.2              Employer to discuss change

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

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

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

9.              Dispute resolution

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

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

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

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

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

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

9.7              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

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 21 - Overtime;

(ii)              on a public holiday as prescribed in clause 25 - Public holidays; or

(iii)              on Saturday or Sunday as prescribed in clause 19.4,

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.

11.              Termination of employment

11.1              Notice of termination is provided for in the NES.

11.2              Notice of termination by an employee

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

11.3              Job search entitlement

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

12.              Redundancy

[Varied by PR503662]

12.1              Redundancy pay is provided for in the NES.

12.2              Transfer to lower paid duties

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

12.3              Employee leaving during notice period

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

12.4              Job search entitlement

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

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

(c)              This entitlement applies instead of clause 11.3

12.5              Transitional provisions - NAPSA employees

[12.5 renamed by PR503662 ppc 01Jan11]

(a)              Subject to clause 12.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a notional agreement preserving a State award:

(i)              that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement - based transitional instrument or enterprise agreement had applied to the employee; and

(ii)              that would have entitled the employee to redundancy pay in excess of the employee's entitlement to redundancy pay, if any, under the NES.

(b)              The employee's entitlement to redundancy pay under the notional agreement preserving a State award is limited to the amount of redundancy pay which exceeds the employee's entitlement to redundancy pay, if any, under the NES.

(c)              This clause does not operate to diminish an employee's entitlement to redundancy pay under any other instrument.

(d)              Clause 12.5 ceases to operate on 31 December 2014.

12.6              Transitional provisions - Division 2B State employees

[12.6 inserted by PR503662 ppc 01Jan11]

(a)              Subject to clause 12.6(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a Division 2B State award:

(i)              that would have applied to the employee immediately prior to 1 January 2011, if the employee had at that time been in their current circumstances of employment and no Division 2B State employment agreement or enterprise agreement had applied to the employee; and

(ii)              that would have entitled the employee to redundancy pay in excess of the employee's entitlement to redundancy pay, if any, under the NES.

(b)              The employee's entitlement to redundancy pay under the Division 2B State award is limited to the amount of redundancy pay which exceeds the employee's entitlement to redundancy pay, if any, under the NES.

(c)              This clause does not operate to diminish an employee's entitlement to redundancy pay under any other instrument.

(d)              Clause 12.6 ceases to operate on 31 December 2014.

Part 4 - Minimum Wages and Related Matters

 

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 14 - Minimum wages.

14.              Minimum wages

[Varied by PR998014, PR509145, PR522976]

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

[14.1 varied by PR998014, PR509145, PR522976 ppc 01Jul12]

Classification

Minimum weekly wage

Aquaculture attendants

$

Level 1

606.40

Level 2

615.20

Level 3

673.00

Level 4

706.10

14.2              Supported wage system

See Schedule C

14.3              School - based apprentices

See Schedule D

14.4              National training wage

See Schedule E

15.              Allowances

[Varied by PR998150, PR509266, PR523096]

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 varied by PR998150, PR509266, PR523096 ppc 01Jul12]

(a)              An employee required to work overtime for more than two hours will either be supplied with a meal by the employer or paid $14.91.

(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 $14.91 per meal.

(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 $14.91 for each surplus meal provided.

15.3              Tool allowance

[15.3 varied by PR998150 ppc 01Jul10]

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 $9.45 per week.

15.4              Travel time and allowance

(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)              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(c) varied by PR523096 ppc 01Jul12]

(c)              Where an employee, with the approval of the employer, is required to use a private motor vehicle, the employee will be paid $0.75 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 ppc 01Jul10]

(b)              Where the employee supplies their own diving equipment, excluding tools, the employee will be paid an amount of $5.60 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

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.

18.