MA000039 - Variation - 08 Jul 2014

MA000039  PR551128

FAIR WORK COMMISSION

DETERMINATION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 5,Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Australian Road Transport Industrial Organisation and others
(AM2012/39,AM2012/116,AM2012/188,AM2012/223)

ROAD TRANSPORT (LONG DISTANCE OPERATIONS) AWARD 2010
[MA000039]

Road transport industry

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY,8 JULY 2014

Modern Awards Review 2012 - two year review of all modern awards - Road Transport (Long Distance Operations) Award 2010.

A. Further to the decision issued on 2 June 2014 1 and pursuant to Item 6,Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,I order that the Road Transport (Long Distance Operations) Award 20102 be varied as follows:

1. By inserting the following definition in clause 3.1—Definitions and interpretations:

fatigue management rules/regulations means Commonwealth,State or Territory laws controlling driving and working hours of heavy vehicle operators or fatigue management

2. By inserting a new clause 4.2 as follows:

4.2 The award does not cover an employee while they are temporarily required by their employer to perform driving duties which are not on a long distance operation,provided the employee is covered by the Road Transport and Distribution Award 2010 while performing such duties.

and by renumbering the existing clauses 4.3 to 4.7 to 4.3 to 4.8 respectively.

3. By deleting the words “to perform long distance operations”from clause 10.2 so that clause 10.2 will read as follows:

10.2 Full-time employment

A full-time employee is an employee engaged by an employer for an average of 38 ordinary hours per week over 28 days.

4. By deleting clause 10.3(a) and inserting the following:

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

5. By inserting a new clause 11.4 as follows:

11.4 Termination away from home base

Where an employer decides to terminate the employment of an employee and the employee is away from their home base,the employer shall provide the employee with the means of returning to home base or reimburse the employee for the cost of any fares reasonably incurred in returning home.

6. By inserting a note at the end of clause 13.1 as follows:

NOTE:The classification grades are different in the Road Transport and Distribution Award 2010. Grade 4 under this award is equivalent to Grade 6 under the Road Transport and Distribution Award 2010.

7. By deleting the words “living away from home allowance”appearing in clause 13.3(d)(ii) and inserting the words “travelling allowance”.

8. By deleting the words “or part thereof”appearing in clauses 14.1(c)(ii) and 14.1(c)(iii).

9. By deleting the heading of clause 14.2(c) and inserting:

(c) Travelling allowance

10. By deleting the word “wages”in clause 14.2(c)(iii) and inserting the word “allowance”.

11. By deleting the words “Living away from home allowance”in clause 14.3(b) and inserting the words “Travelling allowance”.

12. By inserting a new clause 20.1(a) as follows:

(a) The ordinary hours of work shall be an average of 38 hours per week,and may be calculated over a period of not more than 28 days.

and by numbering the existing clause 20.1 Start Times to be 20.1(b).

13. By deleting the heading of clause 20.1 and inserting:

20.1 Ordinary hours and start times

14. By deleting the heading to clause 20.2 “Hours of Work”and inserting:

20.2 Hours of Work and Fatigue Management

15. By deleting clause 20.2 and inserting a new clause 20.2 as follows:

20.2 Hours of Work and Fatigue Management

(a) Where applicable,hours of work will be in accordance with Commonwealth,State or Territory laws,relating to the control of driving and working hours of heavy vehicle operators or the management of fatigue.

(b) Where clause 20.2(a) is not applicable hours of work will be as follows:

    Except where driving hours have been delayed because of accidents or in circumstances over which the employer has no control,the employee must not work and the employer must not require the employee to work:

    (i) more than a total of 120 hours in any fortnight exclusive of any unpaid intervals for meals.

    (ii) in any one day more than 12 hours,with a break of half an hour after each five and one half hours worked;provided that every employee must have 10 hours off duty immediately after the working period is completed.

    (iii) A roster of work which provides for more than 120 hours to be worked in any fortnight.

16. By deleting clause 20.3 and inserting the following:

20.3 An employer may require an employee to work reasonable hours of work at the rates of pay in this award. An employee may refuse hours of work which are unreasonable. In determining whether additional hours are reasonable or unreasonable the following must be taken into account:

(a) any risk to employee health and safety from working the additional hours;

(b) the employee’s personal circumstances,including family responsibilities;

(c) the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments,penalty rates or other compensation for,or a level of remuneration that reflects an expectation of,working additional hours;

(e) any notice given by the employer of any request or requirement to work the additional hours;

(f) any notice given by the employee of his or her intention to refuse to work the additional hours;

(g) the usual patterns of work in the industry,or the part of an industry,in which the employee works;

(h) the nature of the employee’s role,and the employee’s level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee,or with an averaging arrangement agreed to by the employer and employee under section 64;

(j) any other relevant matter.

17. In clause 20.5(a) inserting the words “full-time”after the word “Each”and inserting the word “any”after the word “during”.

18. By inserting the following paragraph at the end of clause 20.5(b) as follows:

Alternatively,subject to mutual agreement in writing between the employer and an individual employee,any number of accrued rostered days off may be cashed out at the time the employee accesses annual leave. Any payment for a rostered day off will be at 20% of the applicable minimum weekly rate.

19. By inserting a new clause 23.2(c) as follows:

(c) For the purposes of clause 23.2(b)(i) the applicable minimum rate prescribed by clause 13.1 must be that applicable to the classification which the employee would have worked in had they not taken the period of leave.

20. By numbering the existing clause 24 to become 24.1 and inserting a new clause 24.2 as follows:

24.2 Rate of pay for a period of paid personal/carer’s leave and compassionate leave

The rate of pay for an employee who accesses a period of paid personal/carer’s leave or compassionate leave must be a portion of the applicable minimum rate prescribed by clause 13.1 which corresponds to the amount of leave taken. The applicable minimum rate must be that applicable to the classification which the employee would have worked in had they not taken the period of leave.

21. By inserting a new clause 26.6 as follows:

26.6 An employee will only be entitled to the payments specified in clause 26.4 or clause 26.5 in circumstances where the majority of the work undertaken by an employee on a particular journey or long distance operation is undertaken on a public holiday.

22. By inserting an additional classification at the beginning of Grade 5 in Schedule A:

Grade

Description

  

5

Driver of rigid vehicle and heavy trailer combination with GCM over 42.5 tonnes but not more than 53.4 tonnes.

B. The variation in item A.12 of this determination will come into effect on the first pay period on or after 19 March 2012. All other variations within this determination come into effect on 8 July 2014.

SENIOR DEPUTY PRESIDENT

 1  [2014] FWC 3529.

 2  MA000039.

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Code:
PR551128V
Title:
MA000039 - Variation - 08 Jul 2014
Effective:
8 Jul 2014
Updated:
9 Jul 2014
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MA000039 - Variation - 08 Jul 2014
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