MISCELLANEOUS GARDENERS, &c., (STATE) AWARD
COMMISSION OF NEW SOUTH WALES
Application by Employers
First, An organisation of employers and a State Peak Council for Employers.
(No. IRC 5319 of 2004)
22 November 2004
1. Insert in
clause 1, Arrangement, of the award published 20 April 2001 (324 I.G. 16), the
following new clause number and subject matter and renumber the existing clause
33, Area, Incidence and Duration to read as clause 34:
Incidence and Duration
clause 33, Area, Incidence and Duration, to read as clause 34 and insert the
following new clause 33:
33. 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.
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
applicable rate specified in Table 1, Rates of Pay of this Award.
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
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
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.
variation shall take effect from 22 November 2004.
J. McLEAY, Commissioner.
the authority of the Industrial Registrar.