Cemetery Industry Award 2010

The above award was first made on 4 September 2009 [PR988929]

This consolidated version of the award includes variations made on 16 December 2009 [PR991578]

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

Table of Contents

[Varied by PR991578]

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.              District allowances

17.              Accident pay

18.              Higher duties

19.              Payment of wages

20.              Superannuation

Part 5 - Hours of Work and Related Matters

21.              Ordinary hours of work and rostering

22.              Breaks

23.              Overtime and penalty rates

Part 6 - Leave and Public Holidays

24.              Annual leave

25.              Personal/carer's leave and compassionate leave

26.              Community service leave

27.              Public holidays

Schedule A - Transitional Provisions

Schedule B - Classification Structure and Definitions

Schedule C - Supported Wage System

Schedule D - National Training Wage

Schedule E - School-based Apprentices

Part 1 - Application and Operation

1.              Title

This award is the Cemetery Industry Award 2010.

2.              Commencement and transitional

[2 substituted by PR991578]

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

3.1              In this award, unless the contrary intention appears:

Act means the Fair Work Act 2009 (Cth)

AQF means the Australian Qualifications Framework

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

employee means a national system employee as defined in sections 13 and 30C of the Act

employer means a national system employer as defined in sections 14 and 30D of the Act

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

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

standard rate means the minimum weekly wage for a Cemetery Employee Class 4 in clause 14.1

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

4.              Coverage

This industry award covers employers throughout Australia in the cemetery and crematorium industry and their employees in the classifications listed in clause 13 - Classifications to the exclusion of any other modern award.

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

4.2              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.

4.3              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.

Part 3 - Types of Employment and Termination of Employment

10.              Types of employment

10.1              Full-time employment

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

10.2              Part-time employment

(a)              A part-time employee is an employee who is engaged to perform less than the full-time hours at the workplace on a reasonably predictable basis.

(b)              Part-time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees.

10.3              Casual employment

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

(b)              A casual employee must be paid per hour at the rate of 1/38th of the weekly rate prescribed for the class of work performed, plus 25%. This loading is instead of entitlements to leave and other matters from which casuals are excluded by the terms of this award and the NES.

(c)              Casual employees are entitled to a minimum payment of two hours' work at the appropriate rate.

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

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

(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 made under the Workplace Relations Act 1996 (Cth) 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.

Part 4 - Minimum Wages and Related Matters

13.              Classifications

[Sched A renumbered as Sched B]

Employees will be classified in accordance with the classifications descriptions contained in Schedule B - Classification Structure and Definitions of this award.

14.              Minimum wages

14.1              Adult weekly rates

14.2              Apprentices

The minimum weekly rates of pay to be paid to apprentices will be the following:

14.3              Juniors

The minimum weekly rates of pay to be paid to juniors will be the following percentages of the minimum rate of pay for the appropriate classification as set out in clause 14.1 of this award.

14.4              Supported wage system

[Sched B renumbered as Sched C by PR991578]

See Schedule C

14.5              National training wage

[Sched C renumbered as Sched D by PR991578]

See Schedule D

15.              Allowances

15.1              Leading hand allowance

(a)              An employee, other than an employee classified at Class 5 and above, appointed by the employer to be in charge of two and not more than six employees, will be paid an additional allowance of 2.1% of the standard rate.

(b)              An employee as above, appointed by the employer to be in charge of more than six employees will be paid an additional allowance of 4.6% of the standard rate.

15.2              First aid allowance

An employee who is appointed by the employer to perform first aid duty, who has been trained to render first aid and is the current holder of appropriate first aid qualifications such as a certificate from the St John Ambulance or similar body, will be paid an allowance of 1.2% of the standard rate.

15.3              Exhumation allowance

An employee required to do any work in an exhumation will receive an allowance for each body exhumed in addition to their minimum wage as follows:

(a)              Where a body has been buried for 14 days or less - 8.9% of the standard rate;

(b)              Where a body has been buried for more than 14 days but less than seven years and had been arterially embalmed and sealed in a metal, polythene or other approved plastic container - 10.7% of the standard rate;

(c)              Where a body has been buried for more than 14 days but less than seven years and has not been arterially embalmed and inserted in a metal, polythene or other approved plastic container - 17.8% of the standard rate; and

(d)              Where a body has been buried in excess of seven years - 8.9% of the standard rate.

15.4              Lift and deepen allowance

An employee is entitled to receive a lift and deepen allowance as prescribed in this clause whenever the employee performs work in a lift and deepen procedure.

NOTE: This procedure is distinct from an exhumation in that it is performed at the request of the person with authority over the grant in order to accommodate further burials within an existing grave site. Unlike an exhumation, a lift and deepen can only occur after five years has elapsed from the date of the last burial in the grave site (or at such longer period as prescribed by the cemetery authority). This procedure is the disinterment of the remains from a grave, wherein an authorised employee must physically recover the remains from a grave and reinterred the remains into the same grave at a greater depth.

15.5              Excavation allowance

An employee who is required to excavate around a coffin below the level of the lid and to place bars, tapes or ropes under the coffin so it may be lifted from the grave (and is not required to actually perform an exhumation or lift and deepen procedure) will be paid an allowance of 5.4% of the standard rate for the first body and 2.7% of the standard rate for each additional body from the same grave.

15.6              Meal allowance

Employees required to work overtime for more than two hours after their ordinary ceasing time on any day, and who have not been so advised the day previously, will be paid a meal allowance of $9.79 for each meal.

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.

(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:

15.8              Industry allowance

In addition to the rates prescribed in clause 14 - Minimum wages, an employee must be paid an allowance of 3.8% of the standard rate per week.

15.9              Vehicle allowance

An employee who reaches agreement with their employer to use their own motor vehicle on the employer's business, must be paid $0.74 per kilometre travelled.

16.              District allowances

16.1              Northern Territory

An employee in the Northern Territory is entitled to payment of a district allowance in accordance with the terms of an award made under the Workplace Relations Act 1996 (Cth):

(a)              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 Workplace Relations Act 1996 (Cth)had applied to the employee; and

(b)              that would have entitled the employee to payment of a district allowance.

16.2              Western Australia

An employee in Western Australia is entitled to payment of a district allowance in accordance with the terms of a notional agreement preserving a State award or an award made under the Workplace Relations Act 1996 (Cth):

(a)              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 Workplace Relations Act 1996 (Cth)had applied to the employee; and

(b)              that would have entitled the employee to payment of a district allowance.

16.3              This clause ceases to operate on 31 December 2014.

17.              Accident pay

17.1              Subject to clause 17.2, an employee is entitled to accident pay in accordance with the terms of:

(a)              a notional agreement preserving a State award 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

(b)              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.

17.2              The employee's entitlement to accident pay under the notional agreement preserving a State award or the award is limited to the amount of accident pay which exceeds the employee's entitlement to accident pay, if any, under any other instrument.

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

17.4              This clause ceases to operate on 31 December 2014.

18.              Higher duties

An employee who is required to perform work or relieve in a position of a higher class for which a higher rate of pay is prescribed in this award, will be paid such higher rate for time spent performing work at such higher class.

19.              Payment of wages

Wages may be paid weekly or fortnightly by cash, cheque or into the employee's nominated bank (or other recognised financial institution) account at the option of the employer.

20.              Superannuation

20.1              Superannuation legislation

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

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

20.2              Employer contributions

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

20.3              Voluntary employee contributions

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

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

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

20.4              Superannuation fund

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

(a)              AustralianSuper;

(b)              Sunsuper;

(c)              Asset Super;

(d)              Statewide Superannuation Trust; or

(e)              any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund.

Part 5 - Hours of Work and Related Matters

21.              Ordinary hours of work and rostering

21.1              Ordinary hours of work will be an average of 38 hours per week over a maximum four week cycle and will be worked between the hours of 7.00 am and 6.00 pm, Monday to Friday.

21.2              By mutual arrangement between an employer and employee, ordinary hours may be arranged to allow the accrual of a rostered day off.

(a)              In such an arrangement, ordinary working hours will be worked as a 20 day, four week cycle of eight hours each with 0.4 (two fifths) of one hour each day worked accruing as an entitlement to take one day off as a rostered day off, paid for as though worked.

(b)              Subject to clause 21.2(c), a rostered day off will be taken on a day allocated by the employer within the four week cycle.

(c)              An employer and employee may agree to substitute such day for an alternate day or in the case of a breakdown in machinery or a failure or a shortage of electric power or some other emergency situation, substitution may be at the direction of the employer.

(d)              Rostered days off may accrue to a maximum of five days. The accrued days are to be taken at a time mutually agreed between the employer and the employee, but within 12 months of the date the first rostered day off accrued under this subclause.

21.3              An employee may elect, with the consent of their employer, to work make-up time, under which the employee takes time off during ordinary hours and works those hours at a later time, during the spread of ordinary hours provided in the award, at the ordinary rate of pay.

22.              Breaks

22.1              Employees will be allowed an unpaid meal break of not less than 30 minutes and not more than 60 minutes at a time mutually agreed or, in default of agreement, at a time nominated by the employer provided that an employee will not be required to work more than five consecutive hours without being allowed such break.

22.2              Full-time and part-time employees will be allowed two rest periods each day of 10 minutes duration without deduction of pay as follows:

(a)              The first period of 10 minutes is to be allowed between the time of commencement of work and the usual meal break.

(b)              The second period of 10 minutes is to be allowed between the usual meal break and the time of ceasing work.

(c)              Such rest pauses will be taken at a mutually agreed time and place or, in default of agreement, at a time and place nominated by the employer to ensure minimal interference with work being undertaken on any day.

23.              Overtime and penalty rates

23.1              All time worked outside ordinary hours specified in clause 21 - Ordinary hours of work and rostering, worked at the direction of the employer, will be paid as follows:

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

(b)              Sunday: double time,

provided that in computing overtime each day will stand alone.

23.2              Time off instead of overtime provided in clause 23.1 may be taken by mutual agreement between the employer and employee. Time off instead of overtime is to be taken at the ordinary time rate of an hour for each hour worked.

Part 6 - Leave and Public Holidays

24.              Annual leave

24.1              Annual leave is provided for in the NES.

24.2              When taking a period of annual leave for which they have become entitled an employee will be paid a loading of 17.5% in addition to payment provided by the NES for such leave.

24.3              An employee must take a period of annual leave when directed by the employer to do so during a period when the employer's operations are closed or partially closed or the employee has at least 18 months of annual leave accrued.

25.              Personal/carer's leave and compassionate leave

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

26.              Community service leave

Community service leave is provided for in the NES.

27.              Public holidays

27.1              Public holidays are provided for in the NES.

27.2              An employer and employee may agree to substitute a public holiday for an alternate day by agreement.

27.3              All work performed on a public holiday at the direction of the employer will be paid for at double time and a half with a minimum payment of four hours.

Schedule A - Transitional Provisions

[Sched A inserted by PR991578]

A.1              General

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

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

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

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

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

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

A.2              Minimum wages - existing minimum wage lower

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

(a)              was obliged,

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

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

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

A.2.2              In this clause minimum wage includes:

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

(b)              a piecework rate; and

(c)              any applicable industry allowance.

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

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

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

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

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

A.3              Minimum wages - existing minimum wage higher

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

(a)              was obliged,

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

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

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

A.3.2              In this clause minimum wage includes:

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

(b)              a piecework rate; and

(c)              any applicable industry allowance.

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

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

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

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

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

A.4              Loadings and penalty rates

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

·              casual or part-time loading;

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

·              shift allowance/penalty.

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

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

(a)              was obliged,

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

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

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

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

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

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

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

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

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

(a)              was obliged,

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

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

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

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

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

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

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

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

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

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

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

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

Schedule B - Classification Structure and Definitions

[Sched A renumbered as Sched B by PR991578]

B.1              Classification structure

All employees engaged at Class 2 and above (other than Class 2 - Assistant Gravedigger) will have completed, hold and utilise an appropriate licence other than motor car, motorcycle and light truck; and an accredited short course certificate.

B.2              Cemetery Employee Class 1

·              less than six months service with an employer;

·              works under routine supervision either individually or in a team environment;

·              is responsible for their own work subject to routine supervision.

B.2.1              Indicative of the tasks which an employee at this level may perform on a daily or periodic basis include but are not limited to the following:

·              general maintenance;

·              plant equipment and property maintenance;

·              fencing;

·              concreting and bitumen work;

·              lawn mowing;

·              raking leaves;

·              sweeping;

·              use of weed eater;

·              wheel barrow;

·              digging trenches, removal of trees;

·              walk behind i.e. domestic/industrial mowers.

B.3              Cemetery Employee Class 2

·              more than six months service with the employer;

·              works from more detailed instructions and procedures;

·              works under general supervision either individually or in a team environment;

·              is responsible for assuring the quality of their own work.

B.3.1              Indicative of tasks which an employee at this level may perform on a daily or periodic basis including all tasks listed under Class 1 and include, but are not limited to the following:

·              use of jack hammer, concrete mixer;

·              use of hand tools including, power drill, pitchfork, electric saw, garden tools;

·              digging trenches;

·              lawn mowing including ride-on i.e. tractor driver (without implements);

·              fertilising, spraying including, herbicides, pesticides;

·              carting soil, material;

·              clipping hedges, edges, pruning;

·              removal of tree cuttings;

·              use of light motors i.e. pumps, generator, chainsaw, post-hole digger and ability to maintain equipment in proper working order.

B.3.2              Assistant Gravedigger

Assists Gravedigger in some of the following tasks:

·              digging, timbering graves under supervision;

·              carting dirt, placing mats;

·              cleaning/trimming around site;

·              assist in lowering of coffin/casket;

·              prepare area for funeral including surface reparation;

·              tops up soil and cleans up after burial.

B.4              Cemetery Employee Class 3

B.4.1              Uncertificated Gravedigger

·              no direct supervision;

·              digs and backfills graves by hand or with mechanical equipment;

·              includes identification of sites;

·              preparation of graves;

·              dresses graves for burial (i.e. placement of artificial lawn, lowering machine or bearers and generally tidying the area and approach to the grave).

B.4.2              Operator Assistant

·              carries out the duties of a crematorium operator, but under direct supervision;

·              removes coffin/casket from chapel;

·              removes flowers/fittings;

·              conveys coffin/casket to furnace.

B.4.3              Memorial Person

·              preparation of plaques and remains for memorialisation;

·              marking beds and construction of concrete bases;

·              awareness/knowledge of maps, grounds etc;

·              miscellaneous paperwork.

B.4.4              Funeral Assistant

·              assistant to Funeral Supervisor;

·              under general/routine supervision;

·              dresses graves for burial (i.e. placement of artificial lawn, lowering machine or bearers and generally tidying the area and approach to the grave);

·              prepares chapels for service;

·              cleans/maintains chapels;

·              gives instruction in the use of chapel equipment;

·              assists with placing of coffin/casket over the grave;

·              assists with lowering of coffin/casket into the grave.

B.5              Cemetery Employee Class 4

Employee who has completed an appropriate and relevant trade certificate i.e. Certificated Gardener, Certificated Gravedigger or other qualified tradesperson.

B.5.1              Funeral Supervisor

Carries out one or more of the following:

·              supervising funeral;

·              able to authorise paperwork as required by the relevant State or Territory legislation;

·              keeps appropriate paperwork, records;

·              supervise conduct of funeral;

·              assist with purchase/allocation of graves and memorials;

·              control traffic;

·              conveyance of remains other than cremated remains within and between cemeteries controlled by the employing trust;

·              advise public on locations of graves/memorials and funerals;

·              may be required to hold and utilise appropriate motor licence.

B.5.2              Crematorium Operator

·              operate crematorium equipment;

·              maintain crematorium equipment;

·              keep appropriate administrative records;

·              authorises paperwork as required by the relevant State or Territory legislation.

B.5.3              This classification level will also apply to an employee:

(a)              with a minimum of two years industry experience; and

(b)              who has not received the opportunity to be formally accredited; and

(c)              can demonstrate knowledge and skills in the following areas:

·              identifying and/or checking accurately, the location of a grave site;

·              digging graves by hand or using appropriate machinery in full monument and law burial areas in a wide variety of soil conditions;

·              directing backhoe/excavator in digging graves as in Class 2 above;

·              assessing soil conditions and the installation of appropriate shoring for individual graves;

·              preparing a grave site and surrounds for a funeral;

·              assisting at a funeral including the use of lowering devices/tapes;

·              backfilling and clean-up of grave site;

·              assisting in the training and education of other gravediggers,

provided that, at the first available opportunity, the employee will undertake the necessary steps to achieve accreditation.

B.6              Cemetery Employee Class 5

B.6.1              Indicative experience and/or qualifications

Possession of an AQF III qualification or completion of an apprenticeship or traineeship at AQF III or equivalent consistent with the Funeral Services Training Package, Horticulture Training Package or other relevant qualification and has progress towards an AQF IV qualification or higher relevant to the industry.

B.6.2              Indicative level of responsibility

An employee at this class would require remote supervision and who:

·              demonstrates understanding of a broad knowledge base incorporating some theoretical concepts;

·              applies solutions to a defined range of unpredictable problems;

·              identifies, analyses and evaluates information from a variety of sources;

·              identifies and applies skill and knowledge to a variety of contexts with some depth in some areas;

·              takes responsibility for their own outputs in relation to specified human resource standards; and

·              provides hands on management direction for a work team usually on site.

B.7              Cemetery Employee Class 6

B.7.1              Indicative experience and/or qualifications

Possession of an AQF IV qualification or higher relevant to the industry.

B.7.2              Indicative level of responsibility

An employee at this class would require remote supervision and who:

·              demonstrates understanding of a broad knowledge base incorporating some theoretical concepts;

·              applies solutions to a defined range of unpredictable problems;

·              identifies, analyses and evaluates information from a variety of sources;

·              identifies and applies skill and knowledge to a variety of contexts with some depth in some areas;

·              takes responsibility for their own outputs in relation to specified human resource standards;

·              provides guidance and direction in the overall management; and

·              acts as a liaison officer with senior management to ensure company standards are implemented and maintained.

Schedule C - Supported Wage System

[Sched B renumbered as Sched C by PR991578]

C.1              This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.

C.2              In this schedule:

approved assessor means a person accredited by the management unit established by the Commonwealth under the supported wage system to perform assessments of an individual's productive capacity within the supported wage system

assessment instrument means the tool provided for under the supported wage system that records the assessment of the productive capacity of the person to be employed under the supported wage system

disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991 (Cth), as amended from time to time, or any successor to that scheme

relevant minimum wage means the minimum wage prescribed in this award for the class of work for which an employee is engaged

supported wage system (SWS) means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website: www.jobaccess.gov.au

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

C.3              Eligibility criteria

C.3.1              Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.

C.3.2              This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.

C.4              Supported wage rates

C.4.1              Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

C.4.2              Provided that the minimum amount payable must be not less than $69 per week.

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

C.5              Assessment of capacity

C.5.1              For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the Supported Wage System by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.

C.5.2              All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

C.6              Lodgement of SWS wage assessment agreement

C.6.1              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 Fair Work Australia.

C.6.2              All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by Fair Work Australia to the union by certified mail and the agreement will take effect unless an objection is notified to Fair Work Australia within 10 working days.

C.7              Review of assessment

The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the supported wage system.

C.8              Other terms and conditions of employment

Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.

C.9              Workplace adjustment

An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee's capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.

C.10              Trial period

C.10.1              In order for an adequate assessment of the employee's capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

C.10.2              During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.

C.10.3              The minimum amount payable to the employee during the trial period must be no less than $69 per week.

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

C.10.5              Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause C.5.

Schedule D - National Training Wage

[Sched C renumbered as Sched D by PR991578]

Schedule E - School-based Apprentices

[Sched D renumbered as Sched E by PR991578]

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

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

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

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

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

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

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

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

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

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

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