Silviculture Award 2010

The above award was first made on 3 April 2009 [PR986382 <http://www.fwa.gov.au/awardsandorders/html/PR986382.htm>]

This consolidated version of the award includes variations made on 11 September 2009 [PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]; 21 September 2009 [PR989299 <http://www.fwa.gov.au/awardsandorders/html/PR989299.htm>]

NOTE: Transitional provisions may apply to certain clauses – see clause 2 and Schedule A

Table of Contents

[Varied by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

Part 1—Application and Operation 3

1. Title 3

2. Commencement and transitional 3

3. Definitions and interpretation 4

4. Coverage 5

5. Access to the award and the National Employment Standards 6

6. The National Employment Standards and this award 6

7. Award flexibility 6

Part 2—Consultation and Dispute Resolution 7

8. Consultation regarding major workplace change 7

9. Dispute resolution 8

Part 3—Types of Employment and Termination of Employment 8

10. Types of employment 8

11. Termination of employment 9

12. Redundancy 10

Part 4—Minimum Wages and Related Matters 11

13. Classifications 11

14. Minimum wages 11

15. Pieceworkers 12

16. Supported wage system 13

17. National training wage 13

18. Allowances 13

19. Adjustment of expense related allowances 20

20. Higher duties 20

21. Payment of wages 21

22. Accident pay 21

23. Superannuation 22

Part 5—Hours of Work and Related Matters 23

24. Ordinary hours of work and rostering 23

25. Breaks 24

26. Overtime and penalty rates 25

27. Bushfire fighting 27

28. Shiftwork 29

Part 6—Leave and Public Holidays 32

29. Annual leave 32

30. Personal/carer’s leave and compassionate leave 33

31. Community service leave 33

32. Public holidays 33

Schedule A—Transitional Provisions 34

Schedule B—Supported Wage System 38

Schedule C—National Training Wage 41

Application and Operation

Title

This award is the Silviculture Award 2010.

1. Commencement and transitional

[Varied by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

1.1 This award commences on 1 January 2010.

[2.2–2.6 inserted by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

1.2 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.

1.3 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.

1.4 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.

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

1.6 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.

Definitions and interpretation

In this award, unless the contrary intention appears:

Act means the Workplace Relations Act 1996 (Cth)

Axeperson means an employee using an axe for delimbing but not engaged in felling

Chainperson means an employee who:

uses a compass;

undertakes line cutting (e.g. mature assessments, continuous forest inventories); and

demonstrates a basic knowledge and skills of management/survey and office mapping work associated with field work.

Commission means the Australian Industrial Relations Commission or its successor

employee has the meaning in the Act

employer has the meaning in the Act

enterprise award has the meaning in the Act

enterprise NAPSA means a NAPSA derived from a State award which immediately prior to 27 March 2006 applied only to a single business or a part of a single business

NAPSA means notional agreement preserving a State award and has the meaning in the Act

NES means National Employment Standards

standard rate means the minimum hourly wage for Silviculture and afforestation worker grade 3 in clause 14.1

Storeperson means an employee engaged in stores activities (locating, picking, control of inventory items and the appropriate recording systems)

Tree measurer (basic) means an employee who is competent in:

all forestry management work at Grades 2 and 3;

chain and compass survey (without supervision);

boundary location;

taking responsibility for stores and vehicles; and

annual stocktaking and all relevant field and office work.

Tree measurer (in charge) means an employee who is competent in:

leading mature assessments;

remeasuring research plots;

leading plantation inventory system plot measurements and pine growth plot measurement;

the survey of continuous forest inventory plot locations as directed;

lead residue assessments; and

any office work associated with Grade 6 field work

Utility person means an employee competent in:

chain and compass line cutting;

assessments and resource pilots;

basic road survey, access lines and boundary demarcation;

measuring tree diameters, completing bark readings and basic continuous forest inventories procedures; and

any office work associated with Grade 3 field work

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

Coverage

This industry award covers employers throughout Australia in the industry of silviculture and afforestation and their employees in the classifications listed in clause 13—Classifications to the exclusion of any other modern award. For the purpose of this clause, silviculture and afforestation means planting, pruning, fertilising and any other activity in or in connection with the establishment or cultivation of trees in forests.

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

The award does not cover an employer bound by an enterprise award or an enterprise NAPSA with respect to any employee who is covered by the enterprise award or NAPSA.

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.

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.

The National Employment Standards and this award

The NES <http://www.airc.gov.au/awardmod/download/nes.pdf> and this award contain the minimum conditions of employment for employees covered by this award.

Award flexibility

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:

arrangements for when work is performed;

overtime rates;

penalty rates;

allowances; and

leave loading.

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

The agreement between the employer and the individual employee must:

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

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

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

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;

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

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

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

state the date the agreement commences to operate.

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

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.

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.

The agreement may be terminated:

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

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

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.

Consultation and Dispute Resolution

Consultation regarding major workplace change

Employer to notify

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.

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.

Employer to discuss change

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.

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.

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.

Dispute resolution

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.

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

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

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

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

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.

Types of Employment and Termination of Employment

Types of employment

General

Employees may be employed in one of the following categories:

full-time;

part-time; or

casual.

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.

Full-time employment

A full-time employee is an employee engaged as such who works an average of 38 hours per week in accordance with the provisions of this award.

Part-time employment

A part-time employee:

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

has predictable hours of work; and

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

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. These hours once fixed can only be varied by mutual agreement between the employer and the majority of employees whose hours will be affected.

Any agreed variation to the regular pattern of work will be recorded in writing. An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.

Casual employees

A casual employee is an employee engaged and paid as such.

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

The casual loading is instead of all paid leave including annual leave, sick leave, long service leave and public holidays.

Termination of employment

Notice of termination is provided for in the NES.

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.

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.

Redundancy

Redundancy pay is provided for in the NES.

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.

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.

Job search entitlement

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.

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.

This entitlement applies instead of clause 11.3.

Transitional provisions

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 NAPSA:

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 made under the Act had applied to the employee; and

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

The employee’s entitlement to redundancy pay under the NAPSA is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.

This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.

Clause 12.5 will cease to operate on 31 December 2014.

Minimum Wages and Related Matters

Classifications

For the definition of classifications in this award reference will be made to following:

Silviculture and afforestation worker grade 1 will mean a labourer with less than three months’ experience in the silviculture and afforestation industry.

Silviculture and afforestation worker grade 2 will mean an assistant powder monkey, axeperson, chainperson, tower person, an employee engaged in pruning, planting, and assessment, fertilising, thinning, fire guard, fire pump operator, pick and shovel and slasher operator, seed collector (fallen trees); tree lifting or the collection of field data (e.g. insect monitoring, survival counts, regeneration surveys, eagle nest searches, etc) or an employee not elsewhere classified.

Silviculture and afforestation worker grade 3 will mean a chainsaw operator, fencer fire guard (with certificate), patrol person, powder monkey, utility person, noxious weed employee, propagator, seed collector (standing trees), vermin destroyer, power driven portable saw operator, fire pump operator (with certificate); or an employee engaged in bushfire fighting and/or other fire suppression duties including tree falling as part of or as an incidental duty of firefighting or fire suppression activity.

Silviculture and afforestation worker grade 4 will mean a tool sharpener, tree climber, tree measurer, treemarker or storeperson.

Silviculture and afforestation worker grade 5 will mean a storeperson in charge.

Silviculture and afforestation worker grade 6 will mean a tree measurer (in charge).

Minimum wages

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

The standard rate can be calculated by dividing the applicable weekly wage above by 38.

Special allowance

In addition to the base rate specified in clause 14.1, employees will be paid each week a special allowance of $7.70. This allowance is payable for all purposes of the award, and must not be altered as a consequence of wage adjustments.

Actual weekly rate

The actual weekly rate will be calculated by:

adding the amounts prescribed by clauses 14.1, 14.2 and 18.2; then

multiplying this amount by 52; then

dividing this amount by 50.4, rounded to nearest 10 cents.

Pieceworkers

Employees may work on piecework rates. Provided that where an employee works on piecework rates, that employee must be paid at least the hourly equivalent for the relevant classification in clause 14.1 and applicable allowances/loadings in clauses 14.2, 14.3 and 18.2.

An employee working under a piecework rate agreement:

must not be disadvantaged in relation to their terms and conditions of employment;

has the option to unilaterally terminate a piecework agreement:

if the amount payable under the piecework agreement falls below the amount that they would otherwise have been entitled to using the wages and allowances provisions prescribed by this award; and

if this amount has not been reached for three consecutive shifts.

The employee must put their intention to terminate their piecework agreement in writing. The termination of the piecework agreement will then take effect 48 hours after the employer has been served with the written notice.

For the purpose of the NES, the base rate of pay for a pieceworker is the base rate of pay as defined in the NES.

For the purpose of the NES, the full rate of pay for a pieceworker is the full rate of pay as defined in the NES.

Supported wage system

[Sched A renumbered as Sched B by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

See Schedule B

National training wage

[Sched B renumbered as Sched C by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

See Schedule C

Allowances

Fares and travelling time

The following transport allowances must be paid to employees as compensation for the travel patterns and mobility requirements of the industry:

Metropolitan radial areas

When employed on work located within a radius of 30 km from the GPO or principal post office of the nearest capital city—$11.30 per day.

Distant jobs

When an employee is working on a distant job as defined by clause 18.5(a) of this award, the following allowances must be paid when the work is carried out away from the place where, with the employer’s approval, the employee is accommodated for the distant job:

When employed on work located within 30 km from the place of accommodation—$11.30 per day.

Country radial areas

An employer whose business or branch or section thereof is established in any place outside the areas mentioned in clauses 18.1(a) and (b) of this award for the purpose of engaging in silviculture and afforestation work will, in respect to employees engaged for work for the establishment, pay the following allowances:

When employed on work located within 30 km from the post office nearest the employer’s establishment—$11.30 per day.

Provided that where the employer has an establishment in more than one such place, the establishment nearest the employee’s usual place of residence will be the establishment taken into account, and the employee will be entitled to the provisions of clause 18.1(d) when travelling to a job outside the radial area of the establishment nearest their residence.

Travelling outside radial areas

Where an employee travels daily from inside any radial area mentioned in clauses 18.1(a) to (c) to a job outside that area, they must be paid:

the relevant allowance prescribed by clauses 18.1(a) to (c); and

in respect of travel from the designated radius to the job and return to that radius:

the time outside ordinary working hours reasonably spent in such travel calculated at ordinary hourly on-site rates to the next quarter of an hour with a minimum payment of one half an hour per day for each return journey; and

any expenses necessarily and reasonably incurred in such travel, which must be $0.74 per kilometre where the employee uses their own vehicle.

Travelling between radial areas

The provisions of clause 18.1(d) will also apply to an employee who is required to travel daily from one of the areas mentioned in clauses 18.1(a) and (c) to an area or another area mentioned in clauses 18.1(a) and (c).

Provision of transport

Subject to clauses 18.1(d)(i) and (ii) the allowance prescribed in this clause except the additional payment prescribed in clauses 18.1(d) and (e) will not be payable on any day on which the employer provides or offers to provide transport free of charge from the employee’s home (or, in the case of clause 18.1(b) the employee’s place of accommodation) to the place of work and return.

Provided that any transport supplied is equipped with suitable seating accommodation and is covered when necessary so as to be weatherproof.

The relevant fares allowance prescribed in this clause will be payable in respect of any day on which the employer provides a vehicle free of charge to the employee and pursuant to the contract of employment, the employee is required by the employer to drive such vehicle from the employee’s home to the place of work and return.

Time spent by an employee travelling from the employee’s home (or, in the case of clause 18.1(b), the employee’s place of accommodation) to the place of work and return outside ordinary hours will not be regarded as time worked for any purpose of this award and no travelling time payment will be made except to the extent provided in clauses 26.6 and 18.5(e) of this award.

Provided that clause 18.1(n)(i) will have no application in the case of an employee directed by the employer to pick up and/or return other employees to their homes.

Work in preparation

When an employee is required to perform preparation work in an off site yard and is then required to erect or fix on site, the provisions of this clause will apply.

Requirement to transfer

As required by the employer, employees will start and cease work on the job at the usual commencing and finishing times within which ordinary hours may be worked and will transfer from site to site as directed by the employer.

Transfer during ordinary working hours

An employee transferred from one site to another during working hours will be paid for the time occupied in travelling and, unless transported by the employer, will be paid reasonable cost of fares by most convenient public transport between such sites.

Provided that where an employer requests an employee to use their own car to effect such transfer and such employee agrees to do so the employee must be paid an allowance at the rate of $0.74 per kilometre.

Daily entitlement

The travelling allowances prescribed in this clause will not be taken into account in calculating overtime, penalty rates, annual or personal leave, but must be payable for any day upon which the employee in accordance with the employer’s requirements works or reports for work or allocation of work and for the paid day or shift off as prescribed in clause 24—Ordinary hours of work and rostering and clause 26.6 of this award.

Employees required to drive plant off site

Notwithstanding anything elsewhere contained in clause 18.1, time occupied by an employee by direction of the employer in driving plant to a camp or centre or job from any point and/or return will be regarded and paid for as working time.

Transport from employer’s location

An employee who, by mutual agreement with an employer, reports for work at a permanent location established by the employer and is transported from such location to the place of work and return will not be paid the daily fares allowances prescribed by clauses 18.1(a) to (e).

All time over 30 minutes spent by the employee travelling to and from the place of work in such transportation must be counted as time worked.

Transport provided by the employer pursuant to clause 18.1(n) must be free of charge, equipped with suitable seating accommodation, and covered when necessary so as to be weatherproof.

Industry allowance

To compensate for the disabilities of the industry, employees will be paid each week an allowance of 147% of the standard rate. This allowance is payable for all purposes of the award.

Leading hand allowance

An employee appointed as a leading hand will be paid a leading hand allowance each week. The allowance will be whichever of the following two amounts is greater:

the percentage of the standard rate (as per the table below) in addition to the weekly wage rate of the highest classification of the employees supervised,

or;

the employee’s own rate.

Meal allowance

An employee who is required to work in excess of one and a half hours’ overtime after working ordinary hours must be paid a meal allowance of $10.35 or will, at the option of the employer, be provided with a suitable meal.

Living away from home allowances

Qualification for payment

An employee will be entitled to the provisions of this clause when employed on a job such a distance from their usual place of residence that they cannot reasonably return to that place each night, subject to the following conditions:

the employee is maintaining a separate place of residence to which it is not reasonable to expect them to return each night; and

the employee, on being requested by the employer, informs the employer, at the time of engagement, that they maintain a separate place of residence from the address recorded on the job application.

Subject to clause 18.5(b), an employee will be regarded as bound by the statement of their address and no entitlement will exist if they wilfully and without duress makes a false statement in relation to the above.

Employee’s address

The employer will obtain and the employee will provide the employer with a statement in writing of their usual place of residence at the time the employee is engaged and no subsequent change of address will entitle an employee to the provisions of this clause unless the employer agrees.

Provided that documentary proof of address such as a long service leave registration card or driver’s licence may be accepted by an employer as proof of the employee’s usual place of residence on engagement instead of the statement in writing referred to in this subclause.

The employee will inform their employer in writing of any subsequent change in their usual place of residence.

The address of the employee’s usual place of residence and not the place of engagement will determine the application of this clause.

Board and lodging

Where an employee qualifies under clause 18.5(a) the employer will either:

provide the worker with reasonable board and lodging; or

pay an allowance of $289.70 per week of seven days but such allowance will not be wages. In the case of broken parts of the week occurring at the beginning or the ending of the employment on a distant job the allowance will be $41.40 per day.

Provided that the foregoing allowances will be increased if the employee satisfies the employer that he/she reasonably incurred a greater outlay than that prescribed. In the event of disagreement the matter may be referred to the Commission for determination.

Reasonable board and lodging will mean lodging in a well kept establishment with three adequate meals each day, adequate furnishings, good bedding, good floor coverings, good lighting and heating and with hot and cold running water, in a single room.

Camping out

Camp accommodation

Where an employee is engaged on projects which are located in areas where suitable board and lodging as defined in clause 18.5(c)is not available, or where the size of the workforce is in excess of the available accommodation, or where the project or the working of shifts necessitate camp accommodation, and where it is necessary to house the employees in a camp, such camp will be constructed and maintained.

Camping allowance

An employee living in a camp where free messing is not provided must receive a camping allowance of $155.32 for every complete week the employee is available for work. If required to be in a camp for less than a complete week the employee must be paid $22.15 per day including any Saturday or Sunday if they are in camp and available for work on the working days immediately preceding and succeeding each Saturday and Sunday. If an employee is absent without the employer's approval on any day, the allowance will not be payable for that day and if such unauthorised absence occurs on the working day immediately preceding or succeeding a Saturday or Sunday, the allowance will not be payable for the Saturday and Sunday.

Camp meal charges

Where a charge is made for meals in a camp, such charge will be fixed by agreement between the parties.

Travelling expenses

An employee who is sent by their employer or selected or engaged by an employer or agent to go to a job which qualifies them to the provision of this clause will not be entitled to any of the allowances prescribed by clause 18.1 of this award for the period occupied in travelling from their usual place of residence to the distant job, but instead must be paid.

Forward journey

For the time spent in so travelling, at ordinary rates up to a maximum of eight hours per day for each day of travel (to be calculated as the time taken by rail or the usual travelling facilities).

For the amount of a fare on the most common method of public transport to the job (e.g. bus; economy air) and any excess payment due to transporting the employee’s gear if such is incurred.

Provided that the employer may deduct the cost of the forward journey fare from an employee who terminates or discontinues their employment within two weeks of commencing on the job and who does not immediately return to their place of engagement.

For each meal incurred while travelling at the rate prescribed by clause 18.4 of this award.

Provided that such rate will be increased if the employee satisfies the employer that they reasonably incurred an expenditure greater than the rate prescribed by clause 18.4.

Return journey

An employee will, for the return journey, receive the same time, fares and meal payments as provided in clause 18.5(f).

Provided that the above return journey payments will not be paid if the employee terminates or discontinues their employment within two months of commencing on the job (or prior to the job completion if the work is for less than two months), or if they are dismissed for incompetence within one working week of commencing on the job, or are dismissed for misconduct.

Departure point

For the purposes of this clause, travelling time will be calculated as the time taken for the journey from the central or regional bus or air terminal nearest the employee’s usual place of residence to the locality of the work.

Daily fares allowance

An employee engaged on a job which qualifies them to the provisions of this clause and who is required to reside elsewhere than on the site (or adjacent to the site and supplied with transport) must be paid the allowance prescribed by clause 18.1.

Weekend return home

An employee who works as required during the ordinary hours of work on the working day before and the working day after a weekend and who returns to their usual place of residence for the weekend and who notifies the employer or their representative, no later than Tuesday of each week, of their intention to return to their usual place of residence at the weekend, must be paid an allowance of $24.10 for each occasion.

Clause 18.5(j)(i) will not apply to an employee who is receiving the payment prescribed in clause 18.5(c) instead of board and lodging being provided by the employer or who is receiving a camping allowance as prescribed in clause18.5(d)(ii).

When employees return to their usual place of residence for a weekend or part of a weekend and do not absent themselves from the job for any of the ordinary working hours, no reduction of the allowance prescribed in clause 18.5(j)(i) will be made.

Rest and recreation

Bus and air travel

An employee who proceeds to a job which qualifies them for the provisions of this clause, may, after two months’ continuous service and then after each three months of continuous service, return to their usual place of residence at the weekend. If they do so, they will be paid the amount of a bus or air fare to the bus station or airport nearest their usual place of residence on the payday which immediately follows the date on which they return to the job; provided no delay not agreed to by the employer takes place in connection with the employee’s commencement of work on the morning of the working day following the weekend.

Provided that if the work upon which the employee is engaged will terminate in the ordinary course within a further 28 days after the expiration of any such period of two or three months as mentioned, then the provisions of this clause will not be applicable.

Service requirements

For the purpose of this clause service will be deemed to be continuous notwithstanding an employee’s absence from work as prescribed in s.7 of the NES.

Variable return home

In special circumstances, and by agreement with the employer, the return to the usual place of residence entitlements may be granted earlier or taken later than the prescribed date of accrual without alteration to the employee’s accrual entitlements.

Non-payment instead

Payment of fares and leave with pay as provided for in this clause will not be made unless the rest and recreation leave is taken by the employee.

Alternative paid day off procedure

If the employer and the employee agree in writing, the paid rostered day off as prescribed in clause 24—Ordinary hours of work and rostering, and clause 26.6 of this award may be taken, and paid for, in conjunction with the additional rest and recreation leave as prescribed in clause 18.5(k), or at the end of the project, or on termination whichever comes first.

Termination

An employee will be entitled to notice of termination in sufficient time to arrange suitable transport at termination or must be paid as if employed up to the end of the ordinary working day before transport is available.

Adjustment of expense related allowances

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.

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:

Higher duties

An employee engaged for a total of more than four hours on any day or shift on duties carrying a higher rate than their usual classification must be paid the higher rate for the entire day or shift.

An employee engaged for four hours or less on any day or shift on duties carrying a higher rate than their ordinary classification must be paid the higher rate for the time so worked.

Payment of wages

Method of payment

Employees must be paid their wages in cash, cheque or electronic funds transfer.

Time of payment

Employees must be paid their wages in working hours.

Wages must be paid during ordinary working hours of work on Thursday of each week or fortnight.

In any week on which a holiday falls on a Thursday or Friday employees must be paid on the preceding Wednesday.

Nothing will prevent any alternative mutual arrangement between an employer and an employee.

The employer must not keep more than two days wages in hand.

Payment on termination

When notice is given in accordance with the NES, all money due to the employee pursuant to this award must be paid at the time of termination. Where this is not practicable, the employer must, within two clear working days of the termination, transfer all money due by electronic funds transfer or by registered post to the employee’s home address. If the money is not posted within that time then any time spent waiting beyond the two working days must be paid for at ordinary rates at the rate of eight hours per day for up to one week. When this time expires, the right to waiting time will cease.

Accident pay

Subject to clause 22.2, an employee is entitled to accident pay in accordance with the terms of:

a NAPSA that would have applied to the employee immediately prior to 1 January 2010 or an award made under the Workplace Relations Act 1996 (Cth) that would have applied to the employee immediately prior to 27 March 2006, if the employee had at that time been in their current circumstances of employment and no agreement made under the Workplace Relations Act 1996 (Cth) had applied to the employee; and

that would have entitled the employee to accident pay in excess of the employee’s entitlement to accident pay, if any, under any other instrument.

The employee’s entitlement to accident pay under the NAPSA or award is limited to the amount of accident pay which exceeds the employee’s entitlement to accident pay, if any, under any other instrument.

This clause does not operate to diminish an employee’s entitlement to accident pay under any other instrument.

This clause ceases to operate on 31 December 2014.

Superannuation

[Varied by PR989299 <http://www.fwa.gov.au/awardsandorders/html/PR989299.htm>]

Superannuation legislation

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.

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

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.

Voluntary employee contributions

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 23.2.

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.

The employer must pay the amount authorised under clauses 23.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 23.3(a) or (b) was made.

Superannuation fund

Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 23.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 23.2 and pay the amount authorised under clauses 23.3(a) or (b) to one of the following superannuation funds:

AustralianSuper;

[23.4(b) inserted by PR989299 <http://www.fwa.gov.au/awardsandorders/html/PR989299.htm>]

AustSafe Super

[23.4(b)–23.4(e) renumbered as 23.4(c)–23.4(f) by PR989299 <http://www.fwa.gov.au/awardsandorders/html/PR989299.htm>]

LUCRF Super;

Tasplan;

Sunsuper; or

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.

Hours of Work and Related Matters

Ordinary hours of work and rostering

The ordinary hours of work are 38 hours per week, worked between 5.00 am and 5.00 pm Monday to Friday.

Hours of work will be arranged in accordance with one or more of the methods set out below:

by employees working fewer than eight ordinary hours on each day;

by employees working fewer than eight ordinary hours on one or more day each week;

by fixing one week day on which all employees will be rostered off during a particular work cycle;

by rostering employees off on various days of the week during each particular work cycle so that each employee has one week day off during each such cycle;

by banking the days accrued to be taken as days off in accordance with clauses 24.2(c) and (d) to be taken at a time designated by management; or

by any other method agreed between the employer and employee(s).

Provided that the ordinary hours of work do not exceed an average of 38 over an agreed and specified work cycle.

Rostered day off falling on a holiday with pay

An employee entitled to a rostered day off must not have that day off rostered on a holiday as specified in clause 32—Public holidays.

In the event that a public holiday is prescribed after notice is given to an employee of the taking of the rostered day off and the public holiday falls on the day the employee is to take off, the employer must allow the employee to take the day off on any alternative day where the employee is normally rostered to work ordinary hours.

Where an employee is sick or injured on the day rostered off in accordance with this clause, the employee will not be entitled to personal leave nor will the employee’s personal leave entitlement be reduced as a result of such sickness or injury that day.

At each establishment an assessment should be made as to which method of implementation best suits that establishment and the proposal will be discussed with employees concerned, the objective being to reach agreement on the method of implementation.

Employees may be required to work in excess of eight ordinary hours per day but not more than 10 ordinary hours per day.

Circumstances may arise where different methods of implementation of the 38 hour week apply to various groups, individuals or sections of employees in the plant or establishment concerned.

Where the method of implementation adopted is in accordance with clauses 24.2(c), (d) or (e) the wages paid each week for ordinary hours will be paid so that in each week when 40 hours (or more) are worked, the time in excess of 38 hours will be kept in hand and paid to the employee in the pay week(s) that the rostered day(s) off occur; to enable an averaging of payments for ordinary time to occur over the particular work cycle.

Breaks

Meal breaks

Employees must receive a break of not less than 30 minutes duration within the first five hours of work.

By agreement with the majority of employees, the meal break may be shortened to not less than 20 minutes with a consequential adjustment to the daily time of cessation of work.

Delayed meal breaks

An employee who is required to defer a meal break prescribed by clause 25.1 must, for the duration of such deferment, be paid at a rate of 200% in addition.

Overtime crib breaks

An employee working overtime must be allowed a crib break of 20 minutes without deduction of pay after each four hours of overtime worked if the employee continues work after such crib time.

An employee working at least one and a half hours of overtime must be allowed a crib break of 20 minutes (before starting overtime after working ordinary hours, inclusive of time worked for accrual purposes in clause 24—Ordinary hours of work and rostering and clause 26.6) which will be paid for at ordinary rates.

Tea breaks

Two tea breaks of 7.5 minutes duration each must be allowed to employees without deduction of pay on each day or shift.

The times for taking such tea breaks will be set by agreement between the employer and employees concerned.

Extension of breaks

The duration of any break prescribed by this clause may be extended by agreement between the employer and employees concerned.

The employer will not be required to pay for any such extension.

Overtime and penalty rates

Overtime

Except as otherwise provided in this clause, all time worked by an employee in excess of or outside the ordinary hours of work (inclusive of time worked for accrual purposes) must be paid at a rate of 150% of the appropriate rate for the first two hours and 200% thereafter.

Rest period after overtime duty

Overtime will be arranged so that employees have at least 10 consecutive hours off duty between the work of successive days.

Where an employee works so much overtime that there are fewer than 10 hours between finishing overtime on one day and the commencement of ordinary work on the next day, the employee will be released, subject to clause 26.2(c), until they have had at least 10 consecutive hours off without loss of pay for ordinary working time occurring during such absence.

If, on the instructions of the employer, an employee resumes work or continues work without having had 10 consecutive hours off duty, they will be paid at the rate of 200% until released from duty for such period and can then be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

Transport after overtime work

When an employee, after having worked overtime, finishes work at a time when reasonable means of transport are not available, the employer must provide them with conveyance to their usual place of residence or to the nearest appropriate public transport.

Weekend and public holiday work

Saturday work

All time worked on a Saturday must be paid for at the rate of 150% of the appropriate minimum wage for the first two hours and 200% after that.

All work performed on the Saturday following Good Friday must be paid for at the rate of 250%.

An employee required to work prearranged overtime on a Saturday must be afforded at least three hours’ work or must be paid for three hours at the appropriate rate.

Sunday work

All time worked on a Sunday must be paid for at the rate of 200% of the appropriate minimum wage.

An employee required to work prearranged overtime on a Sunday must be afforded at least four hours’ work or must be paid for four hours at the appropriate rate.

Public holiday work

All work performed on any of the holidays prescribed in clause 32—Public holidays, or substituted, must be paid for at the rate of 250% of the appropriate minimum wage.

An employee required to work on a public holiday will be afforded at least four hours’ work or paid for four hours at the appropriate rate.

Computation of overtime

For the purpose of computing overtime under this clause:

each day’s work will stand alone;

day means all the time between the normal commencing time of one day and the normal commencing time of the next day;

Saturday means all the time between midnight Friday and midnight Saturday; and

Sunday means all the time between midnight Saturday and midnight Sunday.

Call outs

Mondays to Fridays

An employee called out to work after they have left work for the day must be paid for a minimum of three hours’ work calculated at the rate of 150% of the appropriate minimum wage for each time they are called out.

If the employee is required to work for two hours or more, they must be paid for a minimum of four hours’ work calculated at the rate of the appropriate minimum wage for the first two hours and 200% after that.

Saturdays

An employee called out to work on a Saturday must be paid for a minimum of three hours’ work calculated at the rate of 150% of the appropriate minimum wage for each time they are so called out.

If the employee is required to work for two hours or more, they must be paid for a minimum of three hours’ work calculated at the rate of 150% of the appropriate minimum wage for the first two hours and 200% after that.

Sundays

An employee called out to work on a Sunday must, for the first call out, be paid for a minimum of three hours’ work at the rate of 200% of the appropriate minimum wage. Each subsequent call out must be paid at the rate of 200% for the actual time worked.

Public holidays

An employee called out to work on a public holiday must, for the first call out, be paid for a minimum of three hours’ work at the rate of 250% of the appropriate minimum wage. Each subsequent call out must be paid at the rate of 250% for the actual time worked.

Bushfire fighting

This clause applies to situations where a fire is burning out of control requiring emergency attendance. It does not apply to regeneration burns and the mopping up operations associated with regeneration burns or wildfires.

Retention classification

An employee will retain the classification applicable immediately prior to the outbreak of a wildfire.

For the purpose of and during any period of wildfire firefighting operations the employer may specifically assign an employee to another classification for which a higher wage rate is prescribed. In this case, payment must be made in accordance with clause 20—Higher duties.

Normal hours of work

The weekly total of hours at ordinary time will not exceed 38 per week to be worked in accordance with the normal accrual provisions.

Work periods

The minimum work period, except as provided for stand-by and call outs, will be eight consecutive hours inclusive of time worked for normal accrual purposes. A work period can only be terminated by a rest period of a minimum of eight hours.

Rest period

An employee must receive a rest period of at least eight consecutive hours between successive work periods.

If a rest period exceeds 16 hours, a new work period will be deemed to commence at the expiration of that 16 hours.

Paid rest period

If a work period exceeds 16 hours due to an extreme emergency or lack of transport, an employee must, at the conclusion of such work period, receive a rest period of at least eight hours duration and must, in respect of such rest period, be paid eight hours at ordinary rates.

After eight hours of any paid rest period, a new work period will be deemed to commence.

Meal breaks

Meal breaks must not exceed 45 minutes and must be counted as time worked.

Monday to Friday payment

All time worked Monday to Friday (including time worked prior to firefighting work) must be paid for at the rate of ordinary time for the first eight hours and at the rate of 150% of the appropriate rate for the next two hours, and at the rate of 200% after that.

Provided that:

the wage rate will revert to ordinary time when the employee has received a rest period of eight hours; and

when penalty rates are being paid, and a work period extends beyond midnight, such penalty rates must continue until the end of the work period.

Saturday work

Except where the provisions of clause 27.7(b) apply, all time worked by an employee on a Saturday must be paid for at the rate of 150% for the first two hours and at 200% after that.

Sunday and holiday work

All time worked by an employee on a Sunday must be paid for at the rate of 200%. All time worked on a holiday must be paid for at the rate of 250%.

Stand-by

Stand-by means all time during which an employee is required to be available for an immediate call to work.

An employee on stand-by will be available either at home or at such other place as is mutually agreed with the employer.

Stand-by payment must be at the rate of 50% of the employee’s hourly rate.

Stand-by for employees on Saturdays, Sundays and public holidays means the eight hour period between 10.00 am and 6.00 pm.

An employee who is requested to stand by on a Saturday, Sunday or public holiday will be entitled to eight hours’ stand-by payment for each day so requested.

Provided that the employee will be entitled to only eight hours stand-by pay if by 5.00 pm on their last normal working day preceding a weekend, they are notified that stand-by for that weekend has been cancelled.

Between November and April, an employer may, on any normal weekday which has a high fire danger rating, place an employee on stand-by at the end of the normal working time for the day and/or their departure from the place where they normally cease work for the day. Payment must be made from the normal time of ceasing work at the rate as provided in clause 27.10(c).

Where an employee is called upon to perform firefighting work on any day that they are on stand-by, they must be paid for all time worked at the appropriate prescribed rate in addition to any entitlement for stand-by performed on that day.

Call-outs

An employee recalled to perform work in or in connection with wildfire fighting must be paid for a minimum of four hours’ work at the appropriate wage rate each time they are recalled.

The employee must not be required to work the full hours if the job for which they are recalled is completed in a shorter period.

If such work continues for more than four hours, the employee must be paid for a minimum work period of eight consecutive hours.

Travelling time

All time spent by an employee getting to and from a wildfire at the direction of the employer will be deemed to be time worked. Payment must commence from, and cease at, the employer’s depot, camp or normal pick-up place in the home district.

Resumption of normal duties

Each employee who has been engaged on firefighting work will be entitled upon the cessation of such work and prior to the resumption of normal duties to clear break of ten hours without loss of pay for recognised working time occurring during such break.

An employee who has been camped out for at least three nights will be entitled to a clear break of twelve hours in accordance with this subclause.

These provisions will not apply with respect to any firefighting operations commenced and completed between the hours of 7.00 am and 5.00 pm on the same day.

Provision of meals

The employer must provide three meals per day.

Where an employee is required to work at night, the employer must provide suitable provisions at reasonable intervals. All food supplied by the employer must be free of charge.

Shiftwork

Definitions

For the purposes of this award:

day shift means any shift starting on or after 5.00 am and before 10.00 am;

afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm;

night shift means any shift starting at or after 8.00 pm and before 5.00 am; and

rostered shift means a shift for which the employee concerned has had at least 48 hours’ notice.

Roster

Shifts must be worked according to a roster which will:

provide for rotation of shifts unless all the employees concerned agree otherwise;

provide for not more than eight shifts to be worked in any nine consecutive days; and

specify the commencing and finishing times of each shift.

Ordinary hours

The ordinary hours of work for shiftworkers must not exceed an average of 38 per week over a cycle of two, three or four weeks.

A shift will consist of not more than eight consecutive hours inclusive of a crib time of 30 minutes which will be counted as time worked.

Rostered day off shift

Twenty-four minutes of each eight hour shift worked during a shift cycle will accrue as an entitlement to take a rostered days off shift after each 19 shifts worked. The rostered off shift will be paid for as though worked.

Paid leave

Each day of paid leave taken and any public holiday occurring during any shift cycle will be regarded as a shift worked for accrual purposes.

Pro rata accrued entitlements

A shiftworker who has not worked or is not regarded by reason of clause 28.5 as having worked a complete shift cycle will receive pro rata accrued entitlements for each shift worked or regarded as having been worked in that cycle. Such pro rata entitlements will be payable for the rostered off shift or, in the case of termination of employment, on such termination.

Taking rostered day off

The employer and employees concerned must agree in writing upon arrangements for the taking of rostered day off or for their accumulation. Such accumulation must be limited to not more than five shifts before they are taken as rostered days off. When rostered days off shifts are taken, they will be regarded as shifts worked for accrual purposes in the particular shift cycle in which they are taken.

Work on a rostered day off

The rostered day off prescribed by this clause will be taken as a paid rostered day off.

Where an employer, for emergency reasons, requires an employee to work on their rostered day off, the employee will, in addition to their accrued entitlements, be paid at overtime rates for all work performed on the rostered day off.

Overtime

All time worked by a shiftworker in excess of or outside the ordinary hours (inclusive of time worked for accrual purposes), or on a shift other than a rostered shift, must be paid for at the rate of 200% of the appropriate rate.

This will not apply when the overtime is worked by arrangements between the employees themselves or for the purpose of effecting the customary rotation of shifts.

Shift allowances

A shiftworker whilst on afternoon or night shift (other than on a Saturday, Sunday or holiday) must be paid at 115% of the appropriate rate for such shift.

Saturdays

Employees working shifts between midnight on Friday and midnight on Saturday must be paid at 150% of the minimum rate for ordinary hours of work, inclusive of time worked for accrual purposes as prescribed in clause 28.5.

Sundays and public holidays

Subject to this clause, the provisions of clause 32—Public holidays will apply to shiftworkers. Where shifts commence between 11.00 pm and midnight on a Sunday or public holiday, the time so worked before midnight will not entitle the employee to the Sunday or public holiday rate.

The time worked by an employee on a shift commencing before midnight on the day preceding a Sunday or public holiday and extending into a Sunday or public holiday must be regarded as time worked on such Sunday or public holiday. Where shifts fall partly on a Sunday or a holiday that shift the major portion of which falls on a Sunday or a public holiday will be regarded as the Sunday or public holiday shift.

Five successive shifts

Shiftworkers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights must be paid for at the rate of 150% of the appropriate minimum wage for all ordinary time occurring during such shift.

Call-outs

A shiftworker called out to work after the expiration of their customary working time and after they have left work for the shift, or called out to work on a day on which they are rostered off, must be paid for a minimum of three hours work calculated at the rate of 200% of the appropriate minimum wage for each time they are so called out.

If called out on a public holiday payment will be calculated at the rate prescribed in clause 26.4(c) of this award.

Transport after overtime or shift

When a shiftworker, after having worked overtime or a shift for which they have not been regularly rostered, finishes work at a time when reasonable means of transport are not available, the employer must provide the shiftworker with conveyance to their usual place of residence or to the nearest appropriate public transport.

Leave and Public Holidays

Annual leave

Annual leave is provided for in the NES. Annual leave does not apply to casual employees.

By agreement between an employer and an employee, a period of annual leave may be taken in advance of the entitlement accruing. Provided that if leave is taken in advance and the employment terminates before the entitlement has accrued the employer may make a corresponding deduction from any money due to the employee on termination.

Shut-down

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.

Any employee who has accrued annual leave at the date of closing must:

be given annual leave commencing from the date of closing; and

be paid 1/12th of their ordinary pay for any period of employment between accrual of the employee’s right to the annual leave and the date of closing.

Any employee who has no accrued annual leave at the date of closing must:

be given leave without pay as from the date of closing; and

be paid for any public holiday during such leave for which the employee is entitled to payment.

Annual leave is to be taken within 18 months of the entitlement accruing. For the purpose of ensuring accrued annual leave is taken within that period, and in the absence of agreement as provided for in s.33 of the NES, an employer may require an employee to take a period of annual leave from a particular date provided the employee is given at least 28 days’ notice.

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

instead of the base rate of pay referred to in s.35(1) of the NES, the amount the employee would have earned for working their normal hours, exclusive of overtime, had they not been on leave; and

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

Personal/carer’s leave and compassionate leave

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

Community service leave

Community service leave is provided for in the NES.

Public holidays

Public holidays are provided for in the NES.

—Transitional Provisions

[Sched A inserted by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

General

The provisions of this schedule deal with minimum obligations only.

The provisions of this schedule are to be applied when there is a difference, in money or percentage terms, between a provision in a transitional minimum wage instrument (including the transitional default casual loading) or an award-based transitional instrument on the one hand and an equivalent provision in a modern award on the other.

Minimum wages – existing minimum wage lower

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

was obliged,

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

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.

In this clause minimum wage includes:

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

a piecework rate; and

any applicable industry allowance.

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.

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.

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:

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

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

Minimum wages – existing minimum wage higher

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

was obliged,

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

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.

In this clause minimum wage includes:

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

a piecework rate; and

any applicable industry allowance.

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.

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.

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:

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.

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

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.

Loadings and penalty rates – existing loading or penalty rate lower

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

was obliged,

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

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 the transitional default casual loading or an award-based transitional instrument to pay a particular loading or penalty lower than that in this award for any classification of employee.

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

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.

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:

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

Loadings and penalty rates – existing loading or penalty rate higher

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

was obliged,

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

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 an award-based transitional instrument to pay a particular loading or penalty higher than that in this award for any classification of employee.

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 award-based transitional instrument.

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.

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:

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

Loadings and penalty rates – no existing loading or penalty rate

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.

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.

From the following dates the employer must pay no less than the following percentage of the loading or penalty:

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

—Supported Wage System

[Sched A renumbered as Sched B by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]

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.

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, 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 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 <http://www.jobaccess.gov.au>

SWS wage assessment agreement means the document in the form required by the Department of Education, Employment and Workplace Relations that records the employee’s productive capacity and agreed wage rate

Eligibility criteria

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.

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.

Supported wage rates

Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

Provided that the minimum amount payable must be not less than $69 per week.

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

Assessment of capacity

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.

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.

Lodgement of SWS wage assessment agreement

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 Commission.

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 Industrial Registrar to the union by certified mail and the agreement will take effect unless an objection is notified to the Commission within 10 working days.

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.

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.

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.

Trial period

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.

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.

The minimum amount payable to the employee during the trial period must be no less than $69 per week.

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

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 B.5.

—National Training Wage

[Sched B renumbered as Sched C by PR988420 <http://www.fwa.gov.au/awardsandorders/html/PR988420.htm>]