Commercial Sales Award 2010

Commercial Sales Award 2010

 

The above award was first made on 4 September 2009 [PR988943]

This consolidated version of the award includes variations made on 16 December 2009 [PR991592]

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

 

Table of Contents

[Varied by PR991592]

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 and wage rates

14.              Supported wage system

15.              National training wage

16.              Allowances

17.              District allowances

18.              Accident pay

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 - Supported Wage System

Schedule C - National Training Wage

 


Part 1 - Application and Operation

 

1.              Title

This award is the Commercial Sales Award 2010.

2.              Commencement and transitional

[2 substituted by PR991592]

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)

Advertising Sales Representative means a person employed, substantially away from the employer's place of business, in soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for, or selling advertising space or time of any kind

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

Commercial Traveller means a person employed, substantially away from the employer's place of business, for the purpose of soliciting orders for, or selling articles, goods, wares or merchandise or material for wholesale sale, for resale, or for use in or in connection with the production and/or preparation and/or distribution of commodities for sale by the customer

commission means any financial incentive payment, financial bonus or financial reward directly related to the soliciting or obtaining of orders or business by an individual Commercial Traveller, but will not be deemed to include any incentive payment, bonus or reward periodically made by the employer on the basis of profitability or performance of the employee, or any section, group or division thereof

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)

Merchandiser means a person who is employed away from, or substantially away from, the employer's place of business in promoting the employer's products, reordering stock and preparing display units and gondola ends, and who in conjunction with these principal functions may solicit orders as a minor feature of the employee's work

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

Probationary Traveller means an Advertising Sales Representative or Commercial Traveller who has less than three months service with the employer

standard rate means the minimum weekly wage for a Commercial Traveller in clause 13 - Classifications and wage rates

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

4.              Coverage

4.1              This occupational award covers employers throughout Australia with respect to Commercial Travellers, Merchandisers and Advertising Sales Representatives and those employees unless any other modern award contains classifications that apply to such persons, in which case the other modern award prevails.

4.2              The award does not cover employers and employees covered by the:

(a)              Clerks - Private Sector Award 2010;

(b)              Contract Call Centres Award 2010; or

(c)              Graphic Arts, Printing and Publishing Award 2010.

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

4.4              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.

4.5              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.

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              Statement and terms of engagement

Within 14 days from the commencement of employment, the employer will provide to each employee a written statement containing the information set out below:

(a)              the remuneration payable;

(b)              the vehicle allowance payable or car supplied;

(c)              the rate or rates of commission payable;

(d)              the conditions and terms on which commission or any part thereof is payable or not payable;

(e)              deductions, if any, which are made or may be made to the commission payable; and

(f)              if the employee has a territory, the boundaries or limits of the territory, provided that the employer may change territory boundaries or limits, or move employees from one territory to another on advice to the employee/s concerned.

10.2              Full-time employment

Any employee not specifically engaged as a part-time or casual employee is, for all purposes of this award, a full-time employee unless otherwise specified in the award.

10.3              Part-time employment

(a)              An employee may be employed on a regular part-time basis in any classification in this award.

(b)              Before commencing part-time employment the employer and employee must agree on the number of hours to be worked by the employee, the days on which they will be worked and the commencing and finishing times for the work. The terms of this agreement may be varied by consent and such variation will be in writing.

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

10.4              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.

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 and wage rates

[Varied by PR991592]

13.1              The classifications and minimum wages for an employee who is at least 21 years of age, other than one specified in clause 13.2, are:

Classification level

Minimum weekly wage

$

Minimum hourly wage

$

Probationary Traveller

586.00

15.42

Merchandiser

592.00

15.58

Commercial Traveller/Advertising Sales Representative

640.00

16.84

NOTE: The minimum weekly wage for a Probationary Traveller is based on 90% of the minimum weekly wage for a Commercial Traveller/Advertising Sales Representative.

13.2              The following adult employees are not entitled to the minimum wages set out in the table in clause 13.1:

(a)              A trainee (refer to clause 15 - National training wage); and

[Sched A renumbered as Sched B by PR991592]

(b)              employee receiving a supported wage (refer to Schedule B - Supported Wage System).

13.3              Junior minimum wages

The minimum wages for a junior are:

Age

% of the wage rate for Commercial Traveller/Advertising Sales Representative in clause 13.1

Under 19 years of age

67.5

19 years of age

80

20 years of age

90

13.4              No Commercial Traveller (or Probationary Traveller) will be remunerated solely by commission payment, nor by any salary or retainer, which is lower than the amount of minimum remuneration for a Commercial Traveller (or Probationary Traveller) as the case may be.

14.              Supported wage system

[Sched A renumbered as Sched B by PR991592]

See Schedule B

15.              National training wage

[Sched B renumbered as Sched C by PR991592]

See Schedule C

16.              Allowances

16.1              Telephone allowance

(a)              Where an employee does not have a telephone, modem or broadband connection and, at the written request of the employer, the employee is required to have such equipment, the employer must reimburse the reasonable cost of purchase, installation and rental.

(b)              Where an employee makes telephone calls in connection with the business on the employee's private telephone at the direction of the employer, the employer must reimburse the reasonable cost of such calls. Provided that the employer may request details of all such calls claimed by the employee.

16.2              Expenses and accommodation reimbursement

(a)              In addition to the remuneration payable under clause 13 - Classifications and wage rates, all reasonable expenses actually and properly incurred by the employee in the discharge of the duties will be reimbursed by the employer, including:

(i)              approved entertainment expenses;

(ii)              vehicle parking fees where actually and necessarily incurred;

(iii)              three star class hotel/motel accommodation;

(iv)              expenses for meals and morning or afternoon tea when the employee is required to be away overnight from the usual place of residence at the employee's usual time for taking such meal, in the performance of the duties;

(v)              laundry expenses incurred by employees after they have been away from their place of residence for more than one weekend in the course of their employment;

(vi)              first class rail tickets with sleeping accommodation (if available) on overnight journeys, and economy class airline tickets where required; and

(vii)              the cost of garaging by an employee entitled to the living away from home allowance in clause 16.5 when such is required by the employer.

(b)              Such expenses as can be reasonably anticipated will be paid in advance.

16.3              Injury or illness requiring transport

If an employee suffers injury or illness necessitating return to the usual place of residence or to a hospital or other place where the employee may receive medical care, the expenses actually incurred in returning will be reimbursed by the employer.

16.4              Weekend allowance

An additional amount of $36.86 will be paid to an employee required by the employer to be away from home or headquarters for any weekend.

16.5              Living away from home allowance

An employee required to remain away from their usual place of residence for two or more consecutive nights in any one week, Monday to Sunday inclusive, in servicing the employee's allocated area will be paid an additional allowance of $46.40 per week.

16.6              Change of residence

Any employee (other than a casual) who is directed or required by the employer, in writing, to relocate the employee's residence to another area, will be reimbursed reasonable costs for relocating personal and household effects and members of the immediate dependent family. Reasonable costs expressed in this clause are to be the amount agreed upon, in writing, between the employer and employee prior to any relocation.

16.7              Training program

An employee required by the employer to undertake any course of instruction or training will have all fees and expenses reimbursed by the employer.

16.8              Vehicle allowance

An employee required by the employer to use the employee's motor vehicle in the performance of the employee's duties will be paid an allowance of:

(a)              $0.74 per kilometre, for use of the employee's own motor car; and

(b)              $0.25 per kilometre for use of the employee's own motor cycle.

16.9              Modification to the vehicle reimbursement

Where the employer requires the employee to alter or modify the employee's own vehicle, the employer will reimburse to the employee the full cost of such alterations or modifications.

16.10              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:

Allowance

Applicable Consumer Price Index figure

Vehicle allowance

Private motoring sub-group

Living away from home allowance

Domestic holiday and travel accommodation sub-group

Weekend allowance

Domestic holiday and travel accommodation sub-group

17.              District allowances

17.1              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.

17.2              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.

17.3              This clause ceases to operate on 31 December 2014.

18.              Accident pay

18.1              Subject to clause 18.2, 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.

18.2              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.

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

18.4              This clause ceases to operate on 31 December 2014.

19.              Payment of wages

19.1              Employees will be paid weekly, fortnightly or monthly.

19.2              Wages will be paid by cash, cheque or electronic funds transfer into the employee's nominated bank account.

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)              LUCRF Super;

(c)              CareSuper;

(d)              REST Superannuation;

(e)              Sunsuper; or

(f)              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.

20.5              Absence from work

Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 20.2 and pay the amount authorised under clauses 20.3(a) or (b):

(a)              Paid leave - while the employee is on any paid leave;

(b)              Work-related injury or illness - for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work-related injury or work-related illness provided that:

(i)              the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements; and

(ii)              the employee remains employed by the employer.

Part 5 - Hours of Work and Related Matters

 

21.              Ordinary hours of work and rostering

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

21.2              The ordinary hours of work for a full-time employee will be an average of 38 per week with a maximum of 152 hours over 28 consecutive days.

21.3              The ordinary hours of work may be worked on any days of the week.

21.4              The ordinary hours of work will not exceed 10 hours on any day.

22.              Breaks

An employer will allow an employee reasonable time to have regular and normal meals on each day of the employee's employment.

23.              Overtime and penalty rates

23.1              Overtime

An employee directed by the employer to perform any duty after 6.00 pm Monday to Friday inclusive, or in excess of the ordinary hours of work provided in clause 21 - Ordinary hours of work and rostering will be paid at a rate of time and a half.

23.2              Saturday work

An employee directed by the employer to perform any duty on a Saturday will be paid at a rate of time and a half, with a minimum payment of two hours.

23.3              Sunday work

An employee directed to perform work on a Sunday will be paid at a rate of double time, with a minimum payment of three hours.

23.4              Time off instead

Where agreement is reached between the employer and the employee, the employer may grant time off instead of the payments prescribed above on the basis of one hour off for each hour worked.

Part 6 - Leave and Public Holidays

 

24.              Annual leave

24.1              Annual leave is provided for in the NES. Annual leave does not apply to a casual employee.

24.2              Conversion to hourly entitlement

An employer may reach agreement with the majority of employees concerned to convert the annual leave entitlement in s.87 of the Act to an hourly entitlement for administrative ease.

24.3              Leave loading

(a)              During a period of annual leave an employee who does not receive commission must also be paid a loading of 17.5% calculated on the employee's base rate of pay in s.90(1) of the Act.

(b)              Where the employee receives commission, such employee will, in addition to their ordinary pay, receive either the average of the commission payments earned over the preceding 12 months or the loading prescribed in clause 24.3(a), whichever is the greater.

24.4              Paid leave in advance of accrued entitlement

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.

24.5              Requirement to take leave notwithstanding NES

An employer may require an employee to take annual leave by giving at least four weeks' notice in the following circumstances:

(a)              as part of a close-down of its operations; or

(b)              where more than eight weeks' leave is accrued or proportionate amount for an employee employed on a part-time basis.

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              Substitution of public holidays by agreement at the enterprise

(a)              By agreement between the employer and the majority of employees in the enterprise or part of the enterprise concerned, an alternative day may be taken as the public holiday instead of any of the prescribed days.

(b)              An employer and an individual employee may agree to the employee taking another day as the public holiday instead of the day which is being observed as the public holiday in the enterprise or part of the enterprise concerned.

27.3              All work done by an employee in soliciting orders at the request of the employer on a public holiday or a substitute day will be paid at the rate of double time and a half with a minimum payment as for three hours worked; provided that instead of such payment two and a half days' leave with pay may be granted in respect of each such holiday at a time mutually agreed between the employer and the employee.

27.4              All travelling in connection with work by an employee at the request of the employer on a public holiday or a substitute day will be paid for at the rate of time and a half with a minimum payment as for three hours travelling; provided that instead of such payment one and a half days' leave with pay may be granted in respect of each holiday at a time to be mutually agreed between the employer and the employee.

Schedule A - Transitional Provisions

 

[Sched A inserted by PR991592]

A.1              General

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

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

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

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

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

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

A.2              Minimum wages - existing minimum wage lower

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

(a)              was obliged,

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

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

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

A.2.2              In this clause minimum wage includes:

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

(b)              a piecework rate; and

(c)              any applicable industry allowance.

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

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

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

First full pay period on or after

 

1 July 2010

80%

1 July 2011

60%

1 July 2012

40%

1 July 2013

20%

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

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

A.3              Minimum wages - existing minimum wage higher

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

(a)              was obliged,

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

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

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

A.3.2              In this clause minimum wage includes:

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

(b)              a piecework rate; and

(c)              any applicable industry allowance.

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

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

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

First full pay period on or after

 

1 July 2010

80%

1 July 2011

60%

1 July 2012

40%

1 July 2013

20%

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

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

A.4              Loadings and penalty rates

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

·              casual or part-time loading;

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

·              shift allowance/penalty.

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

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

(a)              was obliged,

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

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

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

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

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

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

First full pay period on or after

 

1 July 2010

80%

1 July 2011

60%

1 July 2012

40%

1 July 2013

20%

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

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

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

(a)              was obliged,

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

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

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

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

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

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

First full pay period on or after

 

1 July 2010

80%

1 July 2011

60%

1 July 2012

40%

1 July 2013

20%

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

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

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

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

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

First full pay period on or after

 

1 July 2010

20%

1 July 2011

40%

1 July 2012

60%

1 July 2013

80%

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

Schedule B - Supported Wage System

 

[Sched A renumbered as Sched B by PR991592]

B.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.

B.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

B.3              Eligibility criteria

B.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.

B.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.

B.4              Supported wage rates

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

Assessed capacity (clause B.5)

%

Relevant minimum wage

%

10

10

20

20

30

30

40

40

50

50

60

60

70

70

80

80

90

90

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

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

B.5              Assessment of capacity

B.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.

B.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.

B.6              Lodgement of SWS wage assessment agreement

B.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.

B.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.

B.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.

B.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.

B.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.

B.10              Trial period

B.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.

B.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.

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

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

B.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 B.5.

Schedule C - National Training Wage

 

[Sched B renumbered as Sched C by PR991592]

 

About this document
(1)
Code:
MA000083
Title:
Commercial Sales Award 2020
Effective:
14 Nov 2022
Instrument Type:
Modern Award
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Commercial Sales Award 2020
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1.0.11.0 SD