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New South Wales Industrial Relations Commission
(Industrial Gazette)

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Page No.480
DescriptionVIRC - Variation by Industrial Relations Commission
Publication No.C3437
Award Code 705  
Date Posted05/26/2005

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Application by Employers First, An organisation of employers and a State Peak Council for Employers.


(No. IRC 5320 of 2004)


Before Commissioner McLeay

22 November 2004




1.          Insert in clause 1, Arrangement, of the award published 8 December 2000 (320 I.G 1078), the following new clause number and subject matter and renumber the existing clause 42, Area, Incidence and Duration to read as clause 43:


42.       Salary Packaging

43.       Area, Incidence and Duration


2.          Renumber clause 42, Area, Incidence and Duration, to read as clause 43 and insert the following new clause 42:


42.  Salary Packaging


(i)         Where agreed between the employer and a full-time or part-time employee, an employer may offer salary packaging in respect of salary. Neither the employer nor the employee may be compelled to enter into a salary packaging agreement.


(ii)        Salary packaging shall mean that the employee will have part of their salary packaged into a fringe benefit which does not constitute a direct payment to the employee but is payable to a bona fide third party.


(iii)       The terms and conditions of such a package shall not, when viewed objectively, be less favourable than the entitlements otherwise available under this award and shall be subject to the following provisions:


(a)        the employer shall ensure that the structure of any agreed remuneration package complies with taxation and other relevant legislation;


(b)        where there is an agreement to salary package, the agreement shall be in writing and made available to the employee;


(c)        the employee shall have access to details of the payments and transactions made on their behalf.  Where such details are maintained electronically, the employee shall be provided with a printout of the relevant information;


(d)        the employer has the right to vary or withdraw from a salary packaging agreement and/or withdraw from offering salary packaging in the event of changes to the operation of legislation that are detrimental to, or increase the costs of, salary packaging arrangements;


(e)        prior to entering into any salary packaging agreements, the employee will be given the opportunity by the employer to seek independent advice in respect of salary package arrangements including advice from the union;


(f)         in the event that the employer withdraws from a salary packaging agreement, the individual employee’s salary will revert to whichever is the higher of:


(i)         the ordinary time rate of pay that applied to the employee prior to the commencement of the salary packaging agreement; or


(ii)        the applicable rate specified in Table 1, Rates of Pay of this Award.


(g)        notwithstanding any of the above arrangements, the employer or employee may cancel any salary packaging agreements by the giving of one month’s notice of cancellation to the other party;


(h)        Superannuation Guarantee Contributions will be calculated with reference to the ordinary time rate of pay the employee would have been entitled to receive but for the salary packaging arrangement;


(i)         any allowance, penalty rates, overtime, payment for unused leave entitlements shall be calculated by reference to the ordinary time rate of pay which would have applied to the employee but for the salary packaging arrangement


(j)         unless there is agreement between the employer and the employee to the contrary, all salary packaging arrangements shall cease during any period of leave without pay, including periods of unpaid sick leave.


3.          This variation shall take effect from 22 November 2004.




J. McLEAY, Commissioner.







Printed by the authority of the Industrial Registrar.


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