MUSICIANS'
(LIVE PERFORMANCE) (STATE)
CONSOLIDATED
AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Notice
of award review pursuant to section 19 of the Industrial Relations Act 1996.
(No. IRC 2201 of 1999)
Before the Honourable Mr Justice Peterson
|
24 August 2001
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REVIEWED AWARD
Clause No.
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Subject Matter
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1.
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Definitions
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2.
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Terms of Engagement
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3.
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Termination of Employment
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4.
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Wage Rates - Weekly Employees
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5.
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Wage Rates - Regular Weekly Part-time Employees and Casual
Employees
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6.
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Payment of Wages
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7.
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Additional Rates and Allowances
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8.
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Overtime and Extraordinary Rates
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9.
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Sundays and Public Holidays
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10.
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Duration of Calls
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11.
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Breaks
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12.
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Annual Holidays
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13.
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Bereavement Leave
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14.
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Sick Leave
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15.
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Personal/Carer's Leave
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16.
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Long Service Leave
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17.
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Travelling and Transportation
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18.
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Band Room Accommodation and Storage of Instruments
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9.
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Uniforms
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20.
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Arranging Band Parts and Orchestration
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21.
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Time and Wages Records
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22.
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Right of Entry
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23.
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Preservation of Existing Rates
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24.
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Special Arrangements
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25.
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Recording and Photography
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26.
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Publicity
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27.
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Support Acts
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28.
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Superannuation
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29.
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Leave Reserved
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30.
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Grievance Procedure
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31.
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Anti-Discrimination
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32.
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Redundancy
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33.
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Area, Incidence and Duration
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PART B
MONETARY RATES
Table 1
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Rates of Pay
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Table 2
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Other Rates and Allowances
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PART A
This Award shall be known as The Musicians' (Live
Performance) (State) Consolidated Award.
1. DEFINITIONS
"Call" shall mean an appearance for either a
performance or a rehearsal of not less than three hours' duration.
"Break" shall mean periods during calls in which
an employee shall not be required to perform musical services but shall count
as time worked.
"Weekly Employee" means an employee engaged by the
week for at least six calls in a week.
"Week" means the period commencing 12.01 a.m.
Sunday and ceasing 12.00 midnight the following Saturday.
"Regular Weekly Part-time Employee" means an
employee specifically engaged as such and working for two to five performances
each week for a period of not less than four consecutive weeks' duration.
"Casual Employee" means an employee engaged
otherwise than as a weekly employee or regular weekly part-time employee.
"Musical Services (Accompanying)" means work
performed in opera, ballet, concerts, religious performances, general
theatrical entertainment inclusive of pantomime and variety shows, vaudeville
shows, vaudeville revue, musical comedy, drama, circuses and other classes of
work in which employee musicians are required to accompany artists; provided
that, for the purpose of this clause, the word "artist" shall not
mean or include a vocalist who regularly works as an integral part of a band or
an orchestra.
"Musical Services (Unaccompanying)" means all
other live work performed by musicians.
This includes talking through music routines and receiving instructions
on routines, miming their own pre-recorded music, being directed to adjust
equipment, sorting out and placing in order music before and/or after the
performance of same.
"Band" or "Orchestra" means a
combination of two or more musicians.
"Band Leader" means an employee who plays,
supervises and directs the band in its duties and includes a
"Conductor-Leader" who directs and supervises a band but may not
necessarily play in the band.
"Orchestral Leader" means the first or principal
violinist or instrumentalist who is required to perform the duties of leader
where there is a conductor. An
Orchestral Leader shall be recognised as a Band Leader.
"Principal" or "Principal Instrument" or
"Principal Instrumentalist" in any orchestra or band shall mean and
include:
(a) Repetiteur violin (that is, a violin
sitting with the leader), principal second violin, principal viola, principal
cello, principal bass, principal flute, principal piccolo, principal oboe,
principal cor anglais, principal clarinet, principal E flat clarinet, principal
bass clarinet, principal bassoon, principal contra bassoon, principal
saxophone, principal and third horn, principal cornet, principal trumpet, principal
and bass trombone, principal euphonium, principal tuba, principal tympani,
principal percussion, principal vibracussion, principal harp, principal piano
and principal organ.
(b) The first of any one or more instruments
other than in the foregoing and where eight or more persons are engaged.
(c) Where there is only one player of any
one instrument and where eight or more persons are engaged, the player of that
instrument.
"Speciality Entertainment" means work done in, or
in connection with entertainment provided by famous or imported artists.
"Union" means The Musicians' Union of Australia,
New South Wales District.
"Vocalist" shall mean a person who sings as a
soloist and is accompanied by him or herself or a band or an orchestra.
"Doubling" shall mean a player of one or more
extra instruments. A percussionist
shall only receive such an allowance in respect of each of the following
instruments: xylophone, vibraphone, tympani
and either (but not both) marimba or glockenspiel.
2. TERMS OF ENGAGEMENT
(i) All employees engaged under this award
shall provide their employer with a bona fide address to which all notices can
be sent.
(ii) Terms of engagement for regular weekly
part-time employees shall be the same as for weekly employees.
(iii) A weekly employee shall be employed for
at least seven days, details of which shall be confirmed in writing.
(iv) Weekly employees are entitled to the
prescribed weekly wage if they are ready and willing to perform the work,
whether the employee is required to perform such work or not. This provision shall apply to all engagements,
open air or not.
(v) Weekly employees are entitled to 14
days' notification of any alterations to a weekly engagement for which a lower
weekly wage is prescribed.
(vi) Where the employment of a weekly employee
is terminated other than on the last working day of the pay period, he/she
shall be paid pro rata the prescribed weekly wage.
(vii) Where an employee is required by an
employer to go on tour, such employee shall be deemed to be in the employment
of the employer for at least from the time at which the employee begins to
travel on the tour and to remain in such employment at least until he/she
finishes travelling on the return from the tour.
(viii) Where an employee is not expressly engaged
as a weekly or regular weekly part-time employee, he/she shall be deemed to be
engaged as a casual employee, provided each performance or rehearsal shall not
be for less than three hours' duration or payment therefore.
(ix) Casual Engagements - The employer has the
right to specify whether the contract of employment shall be oral or in
writing. An oral contract may be
confirmed in writing.
The written confirmation shall be
deemed to have been received by the addressee on the provision of sworn
evidence that the said confirmation was despatched by post, lettergram,
facsimile, hand delivery or other recognised means.
(x) Notwithstanding anything elsewhere
contained in this award, an employer may, in the case of any weekly employee,
deduct payment of wages on any one day on which an employee cannot be usefully
employed because of:
(1) any strike;
(2) any breakdown of machinery;
(3) any stoppages of work unavoidable by the employer.
3. TERMINATION OF EMPLOYMENT
(i) (a) The
employment of a weekly or weekly part-time employee can only be terminated on
either side by at least seven days' written notice of termination.
(b) In the case of a season in a theatre, by
notice plainly posted on the call board at least 14 days prior to the
conclusion of production.
(ii) For a casual employee, if an engagement
which has been made is cancelled by the employer at a time which is less than
14 days prior to the date of the engagement for which the employee was engaged,
the employee shall receive payment in full.
Cancellation of all engagements
shall be in writing delivered to the address notified by the employee, in the
terms of subclause (i) of clause 2, Terms of Engagement. Cancellation may also be in the form of
telex, telegram, or facsimile and notice will be deemed to have been given on
the day it was sent by the employer.
Where cancellation is delivered in
the form of lettergram, telex, facsimile, recognised courier service,
registered or certified mail, such notice will be deemed to have been effective
on the day it was despatched' provided verification of such dispatch may be
requested by the union.
Neither statutory declarations nor
affidavits will be acceptable verification.
(iii) Employees engaged in "Speciality
Entertainment" shall be entitled to the same provisions as casual
employees.
(iv) Nothing in this award shall affect any
legal right to dismiss without notice an employee, whether on tour or not, for
malingering, inefficiency, neglect of duty or misconduct. In the case of such dismissal, wages or
other moneys or allowances due under this award shall be payable for the
employment up to but not after the time of dismissal.
4. WAGE RATES - WEEKLY
EMPLOYEES
(i) The minimum weekly rates of pay for all
weekly employees as defined in this award shall be the hourly rate set in Table
1 - Rates of Pay, of Part B, Monetary Rates, multiplied by the number of hours
worked with a minimum of three hours for each call.
(ii) In addition to the minimum weekly rates
prescribed in subclause (i) of this clause, an employee employed to provide
musical services (accompanying) as set out in clause 1, Definitions, shall be
paid an amount of five per cent of the minimum weekly rate so long as he/she is
so employed.
(iii) The rates of pay in this award include
the adjustments payable under the State Wage Cases of June 1998 and June
1999. These adjustments may be offset
against:
(a) any equivalent overaward payments, and/or
(b) award wage increases since 29 May 1991
other than safety net, State Wage Case, and minimum rates adjustments.
5. WAGE RATES - REGULAR WEEKLY
PART-TIME EMPLOYEES AND CASUAL EMPLOYEES
(i) Regular Weekly Part-time - The minimum
rate of pay for all regular weekly part-time employees as defined in this award
shall be the total minimum rate prescribed in subclause (i) of clause 4, Wage
Rates - Weekly Employees, plus ten per cent, with a minimum of three hours for
each call.
(ii) Casual - The minimum rate of pay for all
casual employees as defined in this award shall be the total minimum rate
prescribed in subclause (i) of the said clause 4, plus 20 per cent, with a
minimum of three hours for each call.
(iii) Accompanying - In addition to the minimum
rates prescribed in subclauses (i) and (ii) of this clause a regular weekly
part-time and a casual employee employed to provide musical services
(accompanying) as set out in clause 1, Definitions, shall be paid an amount of
five per cent of the minimum hourly rate so long as he/she is employed.
6. PAYMENT OF WAGES
(i) Weekly and Regular Weekly Part-time
Employees - All wages, including overtime, shall be paid on a fixed day of the
week, not later than Thursday.
Where a public holiday falls on a
Friday, wages shall be paid on one day of the week not later than Wednesday,
provided that accrued overtime payment shall be made not later than the week
following the week in which it was worked.
Employees who are paid their wages
at any time other than during working hours, if kept waiting for more than 15
minutes at the employer's premises, shall be paid overtime rates for such
waiting time.
(ii) Casual Employees - All moneys due under
this award to a casual employee shall be paid on completion of the work or, by
mutual consent, weekly.
(iii) Electronic Funds Transfer - The employer
may pay by means other than cash, that is by cheque or electronic funds
transfer into an account nominated by the employee. Such payment to a casual employee shall be made on the next
bank-trading day after the performance or, by mutual consent, weekly.
7. ADDITIONAL RATES AND
ALLOWANCES
(i) Soloist -
appropriate rate plus 17.5 per cent.
(ii) Principal -
appropriate rate plus 12.5 per cent.
(iii) (a) Band Leader (two musicians) -
appropriate rate plus 20 per cent.
(b) Band Leader (three or more musicians) - appropriate rate plus
33.33 per cent.
(iv) Speciality
Entertainment - appropriate rate plus 66 and two thirds per cent.
(v) Organist -
appropriate rate plus 20 per cent.
(vi) Doubling
(per additional instrument per call) -
(a) if supplied by the musician: an amount
as set out in Item 1 of Table 2 - Other Rates and Allowances, of Part B,
Monetary Rates;
(b) if supplied by the employer: an amount as set out in Item 2
of Table 2.
(vii) Vocalist -
an additional amount per call as set out in Item 3 of Table 2.
(viii) Music -
where an employee is required to supply his/her own music:
(a) Weekly and part-time employees - an amount per week as set
out in Item 4 of Table 2.
(b) Casual employee - an amount per call as set out in Item 5 of
Table 2.
(ix) Refreshment - Where an engagement is for
four hours or more and meals are served on the premises, an employee shall,
while on duty, be entitled to a meal, free of cost, whenever the venue is
providing such meals. In lieu, the employer
may make payment of an amount as set out in Item 6 of Table 2.
When, in addition to the ordinary
evening call, an employee takes part in an intermediate call commencing at
between 4.30pm and 6.30pm a meal allowance of an amount as set out in the said
Item 6 shall be paid. Tea or coffee
shall also be provided.
(x) Set Up - Where it is necessary for a
drummer or an electronic instrumentalist (including keyboards, electric and
bass guitars) to set up their equipment, an additional allowance equal to 15
minutes at the appropriate rate shall apply.
(xi) P.A.
Allowance - Employees providing a Public Address System -
(a) Up to 100 watts - an amount as set out in Item 7 of Table 2.
(b) Over 100 watts - an amount as set out in Item 7 of Table 2.
8. OVERTIME AND EXTRAORDINARY
RATES
(i) Any time worked on Monday to Saturday,
inclusive, in excess of the prescribed time of any call, that is three hours,
shall be paid for at the rate of time and one-half for the first three hours
and double time thereafter. Provided
that work performed after 12 midnight shall be paid for at double the
appropriate ordinary rate.
(ii) Any call in
excess of two worked on any one day shall be paid for at the rate of time and a
half.
(iii) Overtime payments payable under this
clause shall be made in respect of each quarter hour or part thereof, provided
that where the time limit of a call is exceeded by six minutes or less such
time shall not be counted for the purpose of this clause.
(iv) If an employee is directed to appear at a
call which commences with one hour of the conclusion of a call at which such
employee has appeared, the rate of pay for the second call will be calculated
at the overtime rate of time and one-half unless there has been a complete
change of audience between such two calls.
9. SUNDAYS AND PUBLIC HOLIDAYS
(i) Except as otherwise provided in this
award, all work performed on Sundays shall be paid for at double the
appropriate rate payable for work performed on ordinary days.
(ii) Public
Holidays
(a) The day or days upon which the following
holidays fall, or the days on which such holidays are observed, shall be
holidays for the purpose of this award:
Christmas Day, Boxing Day, New Year's Day, Australia Day, Good Friday,
Easter Monday, Anzac Day, Queen's Birthday, Labour Day and any other day or
days proclaimed or gazetted as public holidays for the State.
(b) All work performed on such public
holidays shall be paid for at two and a half times the appropriate rate payable
for work performed on ordinary days.
(c) In the case of weekly employees or
regular weekly part-time employees, if by reason of any of the aforesaid
holidays being a holiday, no work is done thereon, the employee shall suffer no
deduction in pay.
10. DURATION OF CALLS
(i) Subject to overtime provisions the
duration of a call shall not exceed three hours, and shall include all
intervals and breaks as time worked.
(ii) A call shall be deemed to commence at
the time notified by the employer to the employee as the commencement time or,
if no such time be notified, to have started at the time advertised for the
commencement of the call but in either case, if all members of the band or
orchestra are not present and ready to start at such time, the call shall be
deemed to commence only when the band or orchestra actually starts playing.
(iii) Notwithstanding the provisions above, if
a sound balance commences more than one and a half hours prior to the
performance, at the direction of the employer, it shall count as a separate
call.
11. BREAKS
(i) In addition to normal meal breaks all
musicians shall be entitled to breaks aggregating not less than 15 minutes in
each hour of performance.
(ii) A
performance shall not extend beyond one hour and 45 minutes without a break.
(iii) Breaks
between calls shall be of at least one hour's duration but shall not count as
time worked.
12. ANNUAL HOLIDAYS
See Annual Holidays
Act 1944
13. BEREAVEMENT LEAVE
(i) An employee, other than a casual
employee, shall be entitled to two days bereavement leave without deduction of
pay, for the purpose of making arrangements for and/or attending the funeral,
up to and including the day of the funeral, on each occasion of the death of a
person as prescribed in subclause (iii) of this clause.
(ii) The employee must notify the employer as
soon as practicable of the intention to take bereavement leave and will provide
to the satisfaction of the employer proof of death.
(iii) Bereavement leave shall be available to
the employee in respect to the death of a person prescribed for the purposes of
personal/carer's leave as set out in subparagraph (ii) of paragraph (c) of
subclause (1) of clause 15, Personal/Carer's Leave, provided that, for the
purpose of bereavement leave, the employee need not have been responsible for
the care of the person concerned.
(iv) An employee shall not be entitled to
bereavement leave under this clause during any period in respect of which the
employee has been granted other leave.
(v) Bereavement leave may be taken in
conjunction with other leave available under subclauses (2), (3), (4) and (5)
of the said clause 15. In determining such a request, the employer will give
consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
14. SICK LEAVE
(i) All weekly and regular part-time weekly
employees shall, subject to the production of a medical certificate or other
evidence satisfactory to the employer, be entitled to one week's sick leave in
each year of service on full pay.
(ii) When an employee is on workers'
compensation, he/she shall not be entitled to sick leave on full pay. However, after the first 26 weeks of an
ongoing compensable disability, an employer shall pay the employee who has sick
leave entitlement under this clause the difference between the amount received as
workers' compensation and full pay. The
monies paid by an employer shall be calculated as hourly payments and shall
then be deducted from an employee's sick leave entitlement.
(iii) If the full period of sick leave is not
taken in any year, the whole or any untaken portion shall be cumulative from
year to year. Nevertheless, an employer
shall not be bound to pay for more than five weeks' sick leave in any one year
of service or to credit an employee for sick leave which accrued more than four
years before the end of the last completed year of service.
(iv) Provided that, after the first single
day's absence of an employee in any one year, the employer may require, in
respect of any further single day's absence, the production of a medical
certificate or other evidence satisfactory to the employer.
15. PERSONAL/CARER'S LEAVE
(1) Use of Sick
Leave
(a) An employee, other than a casual
employee, with responsibilities in relation to a class of person set out in
subparagraph (ii) of paragraph (c), who needs the employee's care and support,
shall be entitled to use, in accordance with this subclause, any current or
accrued sick leave entitlement, provided for in clause 14, Sick Leave, for
absences to provide care and support for such persons when they are ill. Such leave may be taken for part of a single
day.
(b) The employee shall, if required,
establish either by production of a medical certificate or statutory
declaration, the illness of the person concerned and that the illness is such
as to require care by another person.
In normal circumstances, an employee must not take carer's leave under
this subclause where another person has taken leave to care for the same
person.
(c) The entitlement to use sick leave in accordance with this
subclause is subject to:
(i) the employee being responsible for the care of the person
concerned; and
(ii) the person concerned being:
(a) a spouse of the employee; or
(b) a de facto spouse, who, in relation to a
person, is a person of the opposite sex to the first mentioned person who lives
with the first mentioned person as the husband or wife of that person on a bona
fide domestic basis although not legally married to that person; or
(c) a child or an adult child (including an
adopted child, a step child, a foster child or an ex nuptial child), parent
(including foster parent and legal guardian), grandparent, grandchild or
sibling of the employee or spouse or de facto spouse of the employee; or
(d) a same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
(e) a relative of the employee who is a
member of the same household, where for the purposes of this subparagraph:
1. "relative" means a person related by blood,
marriage or affinity;
2. "affinity" means a
relationship that one spouse because of marriage has to blood relatives of the
other; and
3. "household" means a family group living in the
same domestic dwelling.
(d) An employee shall, wherever practicable,
give the employer notice prior to the absence of the intention to take leave,
the name of the person requiring care and that person's relationship to the
employee, the reasons for taking such leave and the estimated length of
absence. If it is not practicable for
the employee to give prior notice of absence, the employee shall notify the
employer by telephone of such absence at the first opportunity on the day of
absence.
(2) Unpaid Leave
for Family Purpose
(a) An employee may elect, with the consent
of the employer, to take unpaid leave for the purpose of providing care and
support to a member of a class of person set out in subparagraph (ii) of
paragraph (c) of subclause (1) who is ill.
(3) Annual Leave
(a) An employee may elect with the consent
of the employer, subject to the Annual
Holidays Act 1944, to take annual leave not exceeding five days in single
day periods or part thereof, in any calendar year at a time or times agreed by
the parties.
(b) Access to annual leave, as prescribed in
paragraph (a) of this subclause, shall be exclusive of any shutdown period
provided for elsewhere under this award.
(c) An employee and employer may agree to
defer payments of the annual leave loading in respect of single day absences,
until at least five consecutive annual leave days are taken.
(4) Time Off in
Lieu of Payment for Overtime
(a) An employee may elect, with the consent
of the employer, to take time off in lieu of payment for overtime at a time or
times agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during
ordinary time hours shall be taken at the ordinary time rate, that is an hour
for each hour worked.
(c) If, having elected to take time as leave
in accordance with paragraph (a) of this subclause, the leave is not taken for
whatever reason payment for time accrued at overtime rates shall be made at the
expiry of the 12-month period or on termination.
(d) Where no election is made in accordance
with the said paragraph (a), the employee shall be paid overtime rates in
accordance with the award.
(5) Make-up Time
(a) An employee may elect, with the consent
of the employer, to work "make-up time", under which the employee
takes time off 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.
(b) An employee on shift work may elect,
with the consent of the employer, to work "make-up time" (under which
the employee takes time off ordinary hours and works those hours at a later
time), at the shift work rate, which would have been applicable to the hours
taken off.
16. LONG SERVICE LEAVE
See Long Service Leave
Act 1955.
17. TRAVELLING AND
TRANSPORTATION
(i) An employee, when travelling on duty,
shall be provided by the employer with an economy class return airfare.
(ii) Where no flight is available, transport
shall be by air-conditioned coach or first class rail. Should such rail travel be at night
employees shall be provided with sleeping accommodation or, if sleeping
accommodation is not available, the employee shall be paid in cash the
difference between the standard provided and first class sleeping
accommodation.
(iii) When an employee is required to travel on
the business of his/her employer and is unable to return home each night:
(a) The employee shall be entitled to single
room accommodation of modern motel standard, including breakfast. The employer shall also pay to the employee
an amount per day as set out in Item 8 of Table 2 - Other Rates and Allowances,
of Part B, Monetary Rates, as an allowance for other meals. An employer shall, however, have the option
of consulting the State Secretary of the union with a view to entering into an
alternative arrangement.
(b) Each employee on tour shall be paid an
amount per week as set out in Item 9 of Table 2 in addition to the other
allowances.
(c) Where an employee is travelling by train
to the engagement and meals are available, the employee shall be paid an
allowance of an amount as set out in Item 10 of Table 2 per day.
(iv) When an employee is engaged to be
employed for a continuous period of at least 13 weeks in the one city or town
and is not employed with a view to performing on tour either there or
elsewhere, he/she shall only be entitled to the allowances under paragraphs (a)
and (b) of subclause (iii) of this clause for three weeks in respect of his/her
stay after arriving in the said city or town.
(v) The employer shall transport or pay the
reasonable costs of transporting the double bass or drums or other instruments
of similar size when they are to be used for the purpose of employment.
(vi) Where a casual employee is engaged and
the ordinary public transport fare for return transit from the post office of
the city of town where such employee is engaged to the place of employment is
more than $5.60 the employer shall pay the reasonable cost of such return
transit. Where public transport is not
available, the provision of subclause (ix) of this clause shall apply.
(vii) If an employee is required by his/her
employer to travel on Sunday such employee shall, unless paid in pursuance of
this award for working on the said Sunday, be paid an amount as set out in Item
11 of Table 2, in addition to the allowance elsewhere prescribed by this award.
(viii) If an employee is detained at the place of
employment by the employer to a time too late to travel by the last train or
bus to his/her home, the employer shall provide proper transportation.
(ix) Where an employee agrees at the request
of the employer to use his/her own motor vehicle or motorcycle, the employee
shall be paid an allowance of an amount per kilometre as set out in Item 12 of
Table 2.
18. BAND ROOM ACCOMMODATION AND
STORAGE OF INSTRUMENTS
(i) Where practicable, a band room with
adequate seating accommodation, air conditioned where air conditioning plant is
provided for the premises, together with suitable locker and lavatory
accommodation, shall be provided by the employer where musicians are regularly
employed.
(ii) There shall
be a proper entrance and exit to the band performance area.
(iii) Where the employer agrees to the storage
of instruments, he/she shall accept responsibility for safe custody thereof.
(iv) If, as a result of negligent supervision
of the venue, an employee's equipment is damaged the employer shall indemnify
the employee against such loss or damage; provided that such loss or damage
does not arise as a result of negligence on the part of the employee.
19. UNIFORMS
Where an employee is directed to wear a special uniform
(other than evening dress), such uniform shall be supplied by the employer and
shall be clean and in good order, and the cost of repairs and maintenance shall
be paid by the employer.
20. ARRANGING BAND PARTS AND
ORCHESTRATION
The rates prescribed by this award do not include any
amounts to be paid to any musician for arranging band parts or doing any
orchestration.
21. TIME AND WAGES RECORDS
See section 298 of the Industrial
Relations Act 1996.
22. RIGHT OF ENTRY
See section 298 of the Industrial
Relations Act 1996.
23. PRESERVATION OF EXISTING
RATES
This award is made on the understanding that the salaries
existing for employees at the date on which this award takes effect shall not
be reduced merely as a consequence of the coming into operation of this award.
24. SPECIAL ARRANGEMENTS
Notwithstanding the definition of "Call", in
clause 1, Definitions, where the New South Wales District Committee of the
Union agrees in writing with an employer that for special reasons rates and/or
conditions as prescribed in this award should not apply, altered rates and/or
conditions may be agreed upon between the parties. Such altered rates and/or conditions shall apply to the specified
establishments(s) for which written application has been made. Such agreement shall be in writing, and
signed by both parties.
25. RECORDING AND PHOTOGRAPHY
(a) Engagement under the terms of this award
is for live performance only. Recording
of a live production by any means whatsoever is expressly prohibited unless
agreement as to terms and conditions is reached between the employer, employee
and the Union.
(b) The photographing, for commercial
purposes, of employees is not permitted without the prior consent of the
employee. If agreed, all photographic
work will be within parameters established with the employee.
26. PUBLICITY
The publicity of all acts shall be the employer's
responsibility. All costs associated with such publicity shall be met by the
employer.
In the case of a cancellation of an act, the employer shall
be responsible to remove all publicity and withdraw all advertising and to make
public notice of such cancellation.
27. SUPPORT ACTS
Notwithstanding the provisions contained elsewhere in this
award as to rates of pay, and subject to the written consent of the union, the
casual rate for one call can be reduced to $40.00 per person where:
(a) The
musicians are billed as support entertainment to a major act.
(b) The contracted playing time does not
exceed one 45 minute call (total attendance time not to exceed one and one
quarter hours).
(c) All lights,
public address system, etc., are provided and set up for the musician(s) call
at no charge.
(d) The major
act is not imported.
(e) The total
entertainment budget for the various acts does not exceed $2,000.
28. SUPERANNUATION
(i) The subject of superannuation is dealt
with extensively by federal legislation including the Superannuation Guarantee (Administration) Act, 1992 (Cth), the Superannuation Industry (Supervision) Act
1993, the Superannuation (Resolution of
Complaints) Act 1993 (Cth), and s124 of the Industrial Relations Act 1996.
The legislation, as varied from time to time, governs the superannuation
rights and obligations of the parties.
(ii) The
employer shall be a participating employer in any of the following funds:
(a) In the case of employees in registered
clubs engaged on a regular basis, the Club Plus Superannuation Scheme;
(b) Just Super; or
(c) Such other funds that comply with the
requirements of the legislation contained in subclause (i) above,
and shall participate
in accordance with the Trust Deed of that fund.
(iii) "Ordinary
Salary" means:
(a) Where the employee is engaged on a
weekly basis, the employee's usual weekly earnings, including loadings and
penalty payments paid on a regular basis, but excluding overtime and any other
penalties and allowances paid on an irregular basis such as travel, meals or
wardrobe allowances and the like or annual leave loading.
(b) Where an employee is engaged on a casual
basis, the salary negotiated for the engagement including the casual loading
provided for under this award but excluding overtime and any allowances such as
travel, meals or wardrobe allowances and the like or annual leave loading.
(c) Provided that notwithstanding paragraphs
(c) or (d) of this sub-clause, ordinary salary shall be deemed not to exceed
the amount of $1,560 per employee per engagement, such amount to be adjusted in
line with movements in wages under this award.
(iv) The employer of an employee regularly
employed in the industry shall, subject to the provisions of this clause, be
required to make a superannuation contribution on behalf of the employee of an
amount equivalent to 3 per cent of the employee's ordinary salary to the
trustees of the applicable superannuation scheme, provided that this
requirement shall not apply to employees performing within Australia who are
normally resident outside Australia.
(v) Enrolment
(a) The employer shall establish at the time
of engagement whether the employee is a member of an applicable superannuation
scheme, and if the employee is not a member and/or shows no proof of such
membership, an application form shall be offered to the employee at that time.
(b) The employee shall be required to
complete fully the necessary application form to become a member of the
applicable fund in order to be entitled to the contributions prescribed in
subclause (ii) of this clause.
(vi) Superannuation contributions remain
payable pursuant to this clause, notwithstanding that a performer is absent
from work on approved sick leave, annual leave, long service leave or other
approved paid leave, but excluding absence on workers' compensation.
29. LEAVE RESERVED
Leave is reserved to the union to apply as it may be advised
to remove clause 30, Support Acts.
30. GRIEVANCE PROCEDURE
Where an individual or group covered by this award has a
grievance with their employer, the following steps will be followed in an
attempt to alleviate the grievance:
(i) The
employee(s) may be represented by The Musicians' Union of Australia, New South
Wales District.
(ii) The employee(s) will notify (in writing
or otherwise) the employer as to the substance of the grievance, request a
meeting with the employer for bilateral discussions and provide an outline of
the remedy sought.
(iii) The grievance will initially be dealt
with as close to its source as possible i.e., with the Entertainment Manager or
equivalent.
(iv) If resolution at this level is
unsuccessful, there will be graduated steps for further discussion and
resolution at higher levels of authority.
(v) Reasonable
time limits are to be allowed for discussion at each level of authority.
(vi) Following discussions, the employer must
provide a response to the employee's grievance if the matter has not been
resolved, including reasons for not implementing any proposed remedy.
(vii) Normal work
will continue while the grievance procedure is being followed.
(viii) When discussions at all levels of authority
have failed to resolve the grievance, either party may, at this stage, seek the
assistance of the Industrial Relations Commission of New South Wales to resolve
the grievance.
Disputes Avoidance Procedure
(ix) The employer may be represented by an
industrial organisation of employers and the employees may be represented by
The Musicians' Union of Australia, New South Wales District.
(x) A question, dispute or difficulty must
initially be dealt with as close to its source as possible, with graduated
steps for further discussion and resolution at higher levels of authority.
(xi) Reasonable
time limits are to be allowed for discussion at each level of authority.
(xii) While the
disputes avoidance procedure is being followed, normal work must continue.
(xiii) If the dispute in question is not resolved
it may be referred to the Industrial Relations Commission of New South Wales
for determination.
31. ANTI-DISCRIMINATION
It is the intention of the parties bound by this award to
seek to achieve the objective in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate
discrimination in the workplace. This includes discrimination on the grounds of
race, sex, marital status, disability, homosexuality, transgender identity, age
and responsibilities as a carer.
It follows that in fulfilling their obligations under the
dispute resolution procedure prescribed by this award the parties have
obligations to take all reasonable steps to ensure that the operation of the
provisions of this award are not directly or indirectly discriminatory in their
effects.
Under the Anti-Discrimination
Act 1977, it is unlawful to victimise an employee because the employee has
made or may make or has been involved in a complaint of unlawful discrimination
or harassment.
Nothing in this clause is to be taken to affect:
* any
conduct or act which is specifically exempted from anti-discrimination
legislation
* offering
or providing junior rates of pay to persons under 21 years of age
* any act or practice of a body
established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977
* a party to this award from pursuing
matters of unlawful discrimination in any State or federal jurisdiction.
This clause does not create legal rights or obligations in
addition to those imposed upon the parties by the legislation referred to in
this clause.
32. REDUNDANCY
(i) Application
(a) This clause shall apply in respect of full-time and part-time
employees.
(b) This clause shall only apply to
employers who employ 15 or more employees immediately prior to the termination
of employment of employees.
(c) Notwithstanding anything contained
elsewhere in this clause, this clause shall not apply to employees with less
than one year's continuous service and the general obligation on employers
shall be no more than to give such employees an indication of the impending
redundancy at the first reasonable opportunity, and to take such steps as may
be reasonable to facilitate the obtaining by the employees of suitable
alternative employment.
(d) Notwithstanding anything contained
elsewhere in this clause, this clause shall not apply where employment is
terminated as a consequence of conduct that justifies instant dismissal,
including malingering, inefficiency, neglect of duty or misconduct, or in the
case of casual employees, apprentices or employees engaged for a specific
period of time or for a specified task or tasks or where employment is
terminated due to the ordinary and customary turnover of labour.
(ii) Introduction
of Change
(a) Employer's duty to notify
(1) 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 shall motive the employees who may be affected by the
proposed changes and the Union to which they belong.
(2) "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 the award
makes provision for alteration of any of the matters referred to herein, an
alteration shall be deemed not to have significant effect.
(b) Employer's duty to discuss change
(1) The employer shall discuss with the
employees affected and the union to which they belong, inter alia, the introduction
of the changes referred to in paragraph (a) above, 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 shall give prompt consideration to
matters raised by the employees and/or the Union in relation to the changes.
(2) The discussion shall commence as early
as practicable after a definite decision has been made by the employer to make
the changes referred to in paragraph (a) of this subclause.
(3) For the purpose of such discussion, the
employer shall provide to the employees concerned and the Union to which they
belong, all relevant information about the changes including the nature of the
changes proposed, the expected effect of the changes on employees and any other
matters likely to affect employees, provided that any employer shall not be
required to disclose confidential information the disclosure of which would
adversely affect the employer.
(iii) Redundancy
(a) Discussions before termination:
(1) Where an employer has made a definite
decision that the employer no longer wishes the job the employee has been doing
to be done by anyone pursuant to subparagraph (1) of paragraph (a) of subclause
(ii) above, and that decision may lead to the termination of employment, the
employer shall hold discussions with the employees directly affected and with
the union to which they belong.
(2) The discussions shall take place as soon
as is practicable after the employer has made a definite decision which will invoke
the provision of subparagraph (1) of this paragraph and shall cover, inter
alia, any reasons for the proposed terminations, measures to avoid or minimise
the terminations and measures to mitigate any adverse effect of any termination
on the employees concerned.
(3) For the purposes of the discussion the
employer shall, as soon as practicable, provide to the employees concerned and
the union to which they belong, all relevant information about the proposed
terminations including the reasons for the proposed terminations, the number
and categories of employees likely to be affected, and the number of workers
normally employed and the period over which the terminations are likely to be
carried out. Provided that any employer
shall not be required to disclose confidential information the disclosure of
which would adversely affect the employer.
(iv) Termination
of Employment
(a) Notice for Changes in Production,
Programme, Organisation or Structure - This subclause sets out the notice
provisions to be applied to terminations by the employer for reasons arising
from "production", "programme", "organisation" or
"structure" in accordance with subclause (ii) (a) (1) above.
(1) In order to terminate the employment of
an employee the employer shall give to the employee the following notice:
Period of
continuous service
|
Period of Notice
|
Less than 1 year
|
1 week
|
1 year and less than 3 years
|
2 weeks
|
3 years and less than 5 years
|
3 weeks
|
5 years and over
|
4 weeks
|
(2) In addition to the notice above,
employees over 45 years of age at the time of the giving of the notice with not
less than two years continuous service, shall be entitled to an additional
week's notice.
(3) Payment in lieu of the notice above
shall be made if the appropriate notice period is not given. Provided that employment may be terminated
by part of the period of notice specified and part payment in lieu thereof.
(b) Notice for Technological Change - This
subclause sets out the notice provisions to be applied to terminations by the
employer for reasons arising from "technology" in accordance with
subclause (ii) (a) (1) above:
(1) In order to terminate the employment of
an employee the employer shall give to the employee 3 months notice of
termination.
(2) Payment in lieu of the notice above
shall be made if the appropriate notice period is not given. Provided that employment may be terminated
by part of the period of notice specified and part payment in lieu thereof.
(3) The period of notice required by this
subclause to be given shall be deemed to be service with the employer for the
purposes of the Long Service Leave Act
1955, the Annual Holidays Act 1944,
or any Act amending or replacing either of these Acts.
(c) Time off during the notice period
(1) During the period of notice of
termination given by the employer, an employee shall be allowed up to one day's
time off without loss of pay during each week of notice, to a maximum of five
weeks, for the purposes of seeking other employment.
(2) 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 shall, at the request of the employer, be
required to produce proof of attendance at an interview or the employee shall
not receive payment for the time absent.
(d) Employee leaving during the notice period
If the employment of an employee
is terminated (other than for misconduct) before the notice period expires, the
employee shall be entitled to the same benefits and payments under this clause
had the employee remained with the employer until the expiry of such
notice. Provided that in such
circumstances the employee shall not be entitled to payment in lieu of notice.
(e) Statement of employment
The employer shall, upon receipt
of a request from an employee whose employment has been terminated, provide to
the employee a written statement specifying the period of the employee's
employment and the classification of or the type of work performed by the
employee.
(f) Notice to Centrelink
Where a decision has been made to
terminate employees, the employer shall notify the Centrelink thereof as soon
as possible giving relevant information including the number and categories of
the employees likely to be affected and the period over which the terminations
are intended to be carried out.
(g) Centrelink Employment Separation Certificate
The employer shall, upon receipt
of a request from an employee whose employment has been terminated, provide to
the employee an "Employment Separation Certificate" in the form
required by Centrelink.
(h) Transfer to lower paid duties
Where an employee is transferred
to lower paid duties for reasons set out in paragraph (a) of subclause (ii)
above, the employee shall be entitled to the same period of notice of transfer
as the employee would have been entitled to if the employee's employment had
been terminated, and the employer may, at the employer's option, make payment
in lieu thereof of an amount equal to the difference between the former
ordinary time rate of pay and the new ordinary time rate for the number of
weeks of notice still owing.
(v) Severance
Pay
(a) Where the employment of an employee is
to be terminated pursuant to subclause (iv) above, subject to further order of
the Industrial Relations Commission, the employer shall pay the following
severance pay in respect of a continuous period of service:
(1) If an employee is under 45 years of age,
the employer shall pay in accordance with the following scale:
Years of Service of
Entitlement
|
Under 45 years of age
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
4 weeks
|
2 years and less than 3 years
|
7 weeks
|
3 years and less than 5 years
|
10 weeks
|
4 years and less than 5 years
|
12 weeks
|
5 years and less than 6 years
|
14 weeks
|
6 years and over
|
16 weeks
|
(2) Where an employee is 45 years of age or
over, the entitlement shall be in accordance with the following scale:
Years of Service of
Entitlement
|
45 years of age and over
|
Less than 1 year
|
Nil
|
1 year and less than 2 years
|
5 weeks
|
2 years and less than 3 years
|
8.75 weeks
|
3 years and less than 5 years
|
12.5 weeks
|
4 years and less than 5 years
|
15 weeks
|
5 years and less than 6 years
|
17.5 weeks
|
6 years and over
|
20 weeks
|
(3) "Weeks pay" means the
all-purpose rate of pay for the employee concerned at the date of termination
and shall include, in addition to the ordinary rate of pay, overaward payments,
shift penalties and allowances provided for in the relevant award.
(b) Incapacity to Pay
Subject to an application by the
employer and further order of the Industrial Relations Commission, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in
paragraph (a) above.
The Industrial Relations
Commission shall have regard to such financial and other resources of the
employer concerned as the Commission thinks relevant, and the probably effect
paying the amount of severance pay in paragraph (a) above will have on the employer.
(c) Alternative Employment
Subject to an application by the
employer and further order of the Industrial Relations Commission, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in
paragraph (a) above if the employer obtains acceptable alternative employment
for an employee.
(vi) Savings
Clause
Nothing in this award shall be
construed so as to require the reduction or alteration of more advantageous
benefits or conditions which an employee may be entitled to under any existing
redundancy arrangement, taken as a whole, between the Union and any employer
bound by this award.
33. AREA, INCIDENCE AND
DURATION
(a) This award shall apply to all persons
employed as musicians throughout the State (excluding the County of Yancowinna)
such persons being instrumental performers and any other persons who are
employed to provide musical services including, but not limited to, any type of
service which is directly concerned with live music or musicians or the
production of musical sound, such as arrangers and copyists of music,
vocalists, conductors and others employed as an integral part of a band or
orchestra.
(b) This award is made following a review
under section 19 of the Industrial
Relations Act 1996 and rescinds and replaces the Musicians’ (Live
Performance) (State) Award published 20 January 1995 (283 IG 307) and all
variations thereof.
(c) The award published 20 January 1995 took
effect from the beginning of the first pay period to commence on 01/04/94 and
the variations thereof incorporated herein on the dates set out in the attached
Schedule A.
(d) The changes made to the award pursuant
to the Award Review pursuant to section 19(6) of the Relations Commission of
New South Wales on 18 December 1998 (308 IG 307) are set out in the attached
Schedule B and take effect on 24 August 2001.
(e) This award remains in force until varied
or rescinded, the period for which it was made having already expired.
SCHEDULE A
Award and Variations
Incorporated
Clause
|
Award/Variation Serial No.
|
Date of Publication
|
Date of taking Effect
|
Industrial Gazette
Vol. Page
|
Award
|
B4325
|
20/01/95
|
First pay period from 01/04/94
|
283
|
307
|
(No.)
|
B6807
|
28/5/99
|
First pay period from 17/9/98
|
309
|
551
|
|
B6807
|
28/5/99
|
First pay period from 17/3/99
|
309
|
551
|
|
B6807
|
28/5/99
|
First pay period from 17/6/99
|
309
|
551
|
|
B6807
|
28/5/99
|
First pay period from 17/9/98
|
309
|
552
|
SCHEDULE B
Changes Made on Review
Date of Effect: 24/08/01
(1) Provisions
Modified
Award
Musicians’ (Live Performance)
State Award
|
Clause
|
Previous Form of Clause
Last Published at:
IG Vol.
Page
|
|
2
|
283
|
309
|
|
3(i)
|
283
|
310
|
|
7(i)
|
283
|
313
|
|
10(ii)(b)
|
283
|
315
|
|
10(ii)(c)
|
283
|
315
|
|
14
|
283
|
316
|
|
17(v)
|
283
|
317
|
|
28
|
283
|
320
|
(2) Provisions
Removed:
Award
Musicians’ (Live Performance)
(State) Award
|
Clause
|
Previous Form of Clause
Last Published at:
IG Vol.
Page
|
|
1
|
283
|
308
|
|
5(iii)
|
283
|
312
|
|
6A
|
283
|
313
|
|
17(vi)
|
283
|
318
|
|
20
|
283
|
319
|
|
24
|
283
|
320
|
PART B
MONETARY RATES
Table 1 - Rates of
Pay (Live Performance)
|
Wage rate
(18 hour week)
$
|
Hourly rate of pay
$
|
Former Rate
|
328.90
|
18.30
|
Rate effective the first pay period to commence on or
after 15 December 2000
|
340.90
|
18.95
|
Table 2 - Other Rates
and Allowances (Live Performance)
Item No.
|
Clause No.
|
Brief Description
|
Amount ($)
|
1
|
7 (vi) (a)
|
Doubling - if instrument supplied by musician
|
5.34 per instrument
|
|
|
|
per call
|
2
|
7 (vi) (b)
|
Doubling - if instrument supplied by musician
|
5.34 per instrument
|
|
|
|
per call
|
3
|
7 (vii)
|
Vocalist - additional amount per call
|
3.63 per call
|
4
|
7 (viii) (a)
|
Music - where weekly and part-time employee
|
7.83 per week
|
|
|
supplies own
|
|
5
|
7 (viii) (b)
|
Music - where casual employee supplies own
|
2.60 per call
|
6
|
7 (ix)
|
Meal Allowance
|
5.30 per meal
|
7
|
7 (xi)
|
P.A. Allowance -
|
|
|
|
|
|
|
|
Up to 100 watts
|
7.29
|
|
|
Over 100 watts
|
13.34
|
8
|
17 (iii) (a)
|
Meal Allowance - when travelling
|
11.85 per day
|
9
|
17 (iii) (b)
|
Touring Allowance
|
4.04 per week
|
10
|
17 (iii) (c)
|
Travelling Allowance
|
8.09 per day
|
11
|
17 (vii)
|
Sunday Travel
|
13.49
|
12
|
17 (ix)
|
Vehicle Allowance
|
0.41 per km
|
R. J. PETERSON, J
____________________
Printed by the authority of the Industrial Registrar.