Motels, Accommodation and Resorts, &c. (State)
Award
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 586 of 2015)
Before Commissioner Stanton
|
27 October 2015
|
REVIEWED
AWARD
PART A
1. Arrangement
PART A
Clause No. Subject Matter
1. Arrangement
2. Definitions
3. Transmission
of Business
4. Index of
Facilitative Provisions
5. Enterprise
Flexibility Provisions
6. Procedure
to Avoid Industrial Disputation
7. Employer
Duties
8. Types of
Employment
8.1 General
8.2 Casual Employment
8.3 Regular Part-time Employees
8.4 Apprentices
8.5 Juniors
9. Standing
Down Employees
10. Redundancy
11. Termination
of Employment
12. Classifications
and Wage Rates
13. Supported
Wage System for Employees with Disabilities
14. Mixed
Functions
15. Payment of
Wages, Time and Wages Records
16. Allowances
17. Superannuation
18. Hours of
Work
19. Meal
Breaks
20. Overtime
21. Saturday
Work
22. Sunday
Work
23. Annual
Leave
24. Personal
Leave
25. Parental
Leave
26. Jury
Service
27. Public
Holidays
28. National
Training Wage
29. Work
Experience
30. Accident
Pay
31. Posting of
Award
32. Leave for
Consultation Meetings
33. Basis of
Award
34. Anti-Discrimination
35. Union Dues
36. Leave
Reserved
37. Area,
Incidence and Duration
2. Definitions
In this award:
2.1 Accommodation
means establishments included in clause 37 of this Award.
2.2 Day means the period
of time elapsing from the time an employee commences duty to the time the
employee ceases duty within any period of 24 hours.
2.3 Ordinary
earnings means the ordinary wages for each classification for ordinary hours
Monday to Friday.
2.4 Rostered day
off (RDO) means any continuous 24 hour period between the completion of the
last ordinary shift and the commencement of the next ordinary shift on which an
employee is rostered on for duty.
2.5 Union means
United Voice, NSW Branch.
2.6 Hospitality Services
-
2.6.1 Hospitality
Services grade 1 means an employee who is primarily engaged in one or more of
the following:
(a) cleaning,
tidying and general assistant of kitchen, food preparation, customer service
areas, including the cleaning of equipment, crockery and general utensils;
(b) assembly and
preparation of ingredients for cooking;
(c) handling,
storing and distributing goods, including pantry items and linen;
(d) setting and/or
wiping down tables, removing food plates, emptying ashtrays and picking up
glasses;
(e) assisting
employees who are cooking;
(f) general
cleaning duties;
(g) providing
general assistance to employees of a higher grade not including cooking or
direct service to customers;
(h) laundry and/or linen
duties which may include minor repairs to linen or clothing such as buttons,
zips, seams, and working with flat materials;
(i) the
collection and/or delivery of guests personal dry-cleaning and laundry, linen
and associated materials to and from accommodation areas;
(j) parking guests
cars;
2.6.2 Hospitality
services grade 2 means an employee who has not achieved the appropriate level
of training and who is primarily engaged in one or more of the following:
(a) receiving,
storing and distributing goods;
(b) servicing
accommodation areas and cleaning thereof;
(c) tray service
to guests' rooms;
(d) transferring
guests' baggage and/or property;
(e) driving a
passenger vehicle or courtesy bus;
(f) providing
butler service, basic food and beverage services with personalised guest
services;
(g) assisting in
dry-cleaning process;
(h) cleaning duties
using specialised equipment and chemicals;
(i) handyperson,
which means a person who is not a tradesperson and whose duties include the performance
of routine repair work and maintenance in and about the employer's premises and
other general duties such as pool, garden, etc.;
(j) security
officer;
(k) preparing
and/or cooking a limited range of basic food items such as breakfasts, grills
and snacks and a cook employed alone;
(l) undertaking
general waiting duties in a restaurant of food and/or beverages, including
cleaning of restaurant equipment, preparing tables and sideboards, taking
customer orders, serving food and/or beverages and clearing tables;
(m) supplying,
dispensing or mixing of liquor, including cleaning of bar area and equipment,
preparing the bar for service, taking orders and serving drinks;
(n) taking
reservations, greeting and seating guests, taking telephone orders;
(o) assisting in
the cellar;
(p) receipt of
monies;
(q) attending a
snack bar, buffet or meal counter;
(r) attending in a
coffee shop or espresso bar;
(s) attending in a
shop.
2.6.3 Hospitality
services grade 3 means an employee who has the appropriate level of training
and who is primarily engaged in one or more of the following:
(a) undertaking
general cooking duties, including a la carte cooking, baking, pastry cooking;
(b) undertaking
general waiting duties of both food and/or beverages, including cleaning of
restaurant equipment, preparing tables and sideboards, taking customer orders,
serving food and/or beverages and clearing tables;
(c) supplying,
dispensing or mixing of liquor, including cleaning of bar area and equipment, preparing
the bar for service, taking orders and serving drinks;
(d) receipt of
monies;
(e) receiving,
storing and distributing goods;
(f) assisting in
the training, co-ordination and supervision of employees of lower grades;
(g) major repair
of linen and/or clothing including basic tailoring and major alterations and
refitting;
(h) dry-cleaning;
(i) handyperson,
which means a person who is not a tradesperson and whose duties include the
performance of routine repair work and maintenance in and about the employer's
premises and other general duties such as pool, garden, etc.;
(j) providing
butler services, basic food and beverage services with personalised guest
services;
(k) cellar work,
including stock control, ordering and the receipt, delivering and reordering of
goods within such area;
(l) designing and
mixing a range of sophisticated cocktails and other drinks. May include stocktaking and ordering of
stock;
(m) supervising,
training and co-ordination of employees of lower grades;
(n) taking
reservations, greeting and seating guests and taking telephone orders.
2.6.4 Hospitality
services grade 4 means an employee who has completed an apprenticeship or who
has passed the appropriate trade test and who is engaged in any of the
following:
(a) undertaking
general cooking duties including a la carte, baking, pastry cooking, butcher,
waiting, butler.
2.6.5 Hospitality
services grade 5 means an employee who has the appropriate level of training and
who is primarily engaged in one or more of the following:
(a) solely
responsible for other cooks and other kitchen employees in a single kitchen
establishment where no other trade qualified cooks are employed;
(b) supervising,
training and co-ordinating food and beverage staff including maintenance of
service and operational standards, preparation of operational reports and staff
rostering;
(c) general or
specialised cooking duties including the training and supervision of other
cooks and kitchen staff and relieving Hospitality Services Grade 6 employees on
their rostered days off or when on annual or other leave;
(d) supervising,
training and co-ordinating the work of employees engaged in the housekeeping
area.
2.6.6 Hospitality
services grade 6 means a chef de partie or equivalent who has completed an
apprenticeship or has passed the appropriate trade test in cooking, butchery,
baking or pastry cooking and has completed additional appropriate training and
who performs any of the following:
(a) general and
specialised duties including supervision or training of other trade qualified
cooks, ordering and stock control;
(b) solely
responsible for other cooks and other kitchen employees in a single kitchen
establishment where other trade qualified cooks are employed.
2.7 Administration
Front Office
2.7.1 Hospitality
administration and front office grade 1 means an employee who has not achieved
the appropriate level of training and who is primarily engaged in one or more
of the following:
(a) front office
duties such as receptionist, telephonist, cashier or reservations;
(b) performs basic
clerical and routine office duties such as collating, filing, photocopying and
delivering messages;
(c) general
clerical duties such as typing, basic data entry and calculation functions;
(d) accounts;
(e) night auditing
in addition to any of the above duties such employee may also be required to
perform any of the duties of Hospitality services grade 2 or below;
(f) guest
relations officer.
2.7.2 Hospitality administration
and front office grade 2 means an employee who has the appropriate level of
training and who is primarily engaged in one or more of the following:
(a) front office
duties such as receptionist, telephonist, cashier or reservations;
(b) clerical and
other office duties;
(c) general
clerical duties such as typing, basic data entry and calculation functions;
(d) accounts;
(e) night auditing
in addition to any of the above duties such employee may also be required to
perform any of the duties of Hospitality services grade 2 or below;
(f) assistant in
sales, and/or marketing;
(g) guest
relations officer.
2.7.3 Hospitality
administration and front office grade 3 means an employee appointed as such who
has the appropriate level of training and
(a) who carries out
general secretarial or stenographic duties, clerical duties of an advanced
nature, and
(b) who has
recognised experience in complex duties and may be
(c) responsible
for guidance of other office personnel including juniors and may check and
allocate their work, or
(d) who is
responsible for sales and marketing
(e) and/or is in
the front office engaged in duties including assisting in training and
supervision of front office employees of a lower grade(s).
2.7.4 Hospitality administration
and front office supervisor means an employee appointed as such and who has the
appropriate level of training including a supervisor's course and trains and
co-ordinates the work of front office and/or other clerical staff.
2.8 Leisure Activities
2.8.1 Leisure
attendant grade 1 means a person who is primarily engaged in one or more of the
following:
(a) acts as an
assistant instructor;
(b) does basic
testing;
(c) is responsible
for setting up, distribution and care of equipment;
(d) takes bookings
and works at the front desk of a leisure facility;
(e) provides
information to guests on leisure activities and facilities;
(f) is a pool
attendant;
(g) tests pools
and spa waters for optimal levels;
(h) is a powerboat
observer;
(i) child minding
attendant.
2.8.2 Leisure
attendant grade 2 means a person who has the appropriate level of training and
who is engaged in any of the following:
(a) takes classes;
(b) directs leisure
activities such as in sporting areas, health clubs and swimming pools;
(c) leads tours,
and/or group activities;
(d) developing or
implementing activities for individuals or group of guests;
(e) child minding
attendant.
2.8.3 Leisure
attendant grade 3 means a person who has the appropriate level of training, who
plans and co-ordinates leisure activities and/or organises activity programs
and may supervise other leisure attendants.
2.9 Appropriate
Level of Training means:
2.9.1 Completion of a
training course deemed suitable according to guidelines issued through Tourism
Training Australia for that particular classification. Such course to be
accredited by the Australian Hospitality Review Panel;
2.9.2 That the
employee's skills have been assessed to be at least the equivalent of those
attained through the suitable course described in clause 2.9.1, such assessment
to be undertaken by a qualified skills assessor.
2.10 Introductory
level means the level of an employee who enters the industry and who has not
demonstrated the competency requirements of level 1. Such an employee will remain at this level
for up to three months while the appropriate training for level 1 is undertaken
and assessment made to move from the introductory level to level 1. At the end of three months from entry, an
employee shall move to level 1 other than where agreement has been reached and
recorded between the employee and the employer that further training of up to
three months is required for the employee to achieve competence for movement to
level 1.
2.11 Continuous
Service
2.11.1 In calculating the
twelve months’ continuous service, the only absences counted as time worked are
the following:
up to 152 ordinary working hours in a 12-month period
because of sickness or accident;
long service leave that an employee takes under the
relevant State long service leave legislation; and
annual leave.
2.11.2 Where a period of
work is less than twelve months, the absences counted as time worked because of
sickness or accident are calculated on a proportionate basis.
2.11.3 The following
events do not break an employee’s continuous service:
sick leave;
leave as the result of an accident;
leave lawfully granted by the employer; or
absence for a reasonable cause. (The employee must
prove that the absence was reasonable.)
2.11.4 Where employees
are temporarily stood down through no fault of their own, service is not to be
considered to be broken.
2.11.5 Any other absence
from work does not break continuity of service unless the employer notifies the
employee within fourteen days of the employee returning to work after the
absence. The employer must tell the employee in writing.
2.11.6 If an individual
employee is absent, the employer must tell that employee by:
giving the notice to him or her personally; or
posting the notice to his or her last known address.
2.11.7 If a number of
employees are absent because of collective action, the employer may tell them
all by placing a notice in the place where the employer normally places general
notices to employees. The employer must also send a copy of the notice to the
Union on the same day.
2.11.8 It will also not
break an employee’s continuous service if the employer breaks or ends the
employee’s service in order to avoid the employer’s obligations in respect of
leave.
2.11.9 School based
apprentice is an employee who is undertaking an apprenticeship under a training
contract while also enrolled in the Higher School Certificate. The school based apprenticeship may commence
upon the completion of the Year 10 School Certificate exams. Such school based apprenticeships are
undertaken at a minimum Certificate III Australian Qualifications Framework
(AQF) qualification level as specified in the relevant Vocational Training
Order pursuant to the Apprenticeship and Traineeship Act 2001.
3. Transmission of
Business
3.1 Where an
establishment covered by this award is sold and the new employer continues to
employ any employees the continuity of service of such employee shall be deemed
not to have been broken by reason of the sale or transmission of the business
for the purpose of the provision of clauses 10, Redundancy and 11, Termination
of employment and in such circumstances the provisions of clauses 10,
Redundancy and 11, Termination of employment shall not apply in respect to the
transmittor.
3.2 The period of
service which the employee has had with the transmittor or any previous
transmittor shall be deemed to be service of the employee with the transmittee
for the purposes of the provisions of clauses 10, Redundancy and 11,
Termination of employment.
4. Index of
Facilitative Provisions
4.1 A facilitative
provision provides that the standard approach in an Award provision may be departed
from by agreement between an individual employer and an employee, or the
majority of employees, in the enterprise or part of the enterprise concerned.
4.2 Facilitative
provisions in this award are contained in the following clauses:
Clause Title
|
Clause Number
|
Alternative method of payment
|
15.2
|
Make-up time
|
18.11
|
Ordinary Hours - method of working
|
18.2
|
Overtime - time off in lieu
|
20.3
|
Part-time employment
|
8.3
|
Payment of wages - method and timing
|
15.1
|
Public holidays - payment
|
27.3
|
Superannuation - exemption, choice of fund
|
17.7
|
Unpaid carers’ leave
|
24.3
|
5. Enterprise
Flexibility Provisions
Where an employer or employees wish to pursue an agreement
at the enterprise or workplace about how the award should be varied so as to
make the enterprise or workplace operate more efficiently according to its
particular needs the following process shall apply:
5.1 A consultative mechanism
and procedures appropriate to the size, structure and needs of the enterprise
or workplace shall be established.
5.2 For the purpose
of the consultative process the employees may nominate the Union or another to
represent them.
5.3 Where agreement
is reached an application shall be made to the Commission.
6. Procedure to Avoid
Industrial Disputation
6.1 In the event of
a dispute arising in the workplace the procedure to be followed to resolve the
matter will be as follows:
6.1.1 The employee and
their supervisor meeting and conferring on the matter; and
6.1.2 If the matter is
not resolved at such a meeting, the parties shall arrange for further
discussions between the employee and his or her nominated representative, if
any, and more senior levels of management.
6.2 If the matter
is still not resolved a discussion shall be held between representatives of the
employer and the Union or other employee representative.
6.3 If the matter
cannot be resolved it may be referred to the Commission.
6.4 While the
parties attempt to resolve the matter work will continue as normal unless an
employee has a reasonable concern about an imminent risk to his or her health
and safety.
7. Employer Duties
7.1 An employer
shall not charge a sum against nor deduct any sum from the wages of an employee
in respect of breakages of crockery or other utensils except in the case of
wilful misconduct.
8. Types of Employment
8.1 General
8.1.1 Employees under this
award will be employed in one of the following categories:
(a) full-time
employees; or
(b) regular
part-time employees; or
(c) casual
employees.
8.1.2 At the time of
engagement an employer will inform each employee of the terms of their
engagement and in particular whether they are to be full-time, regular
part-time or casual.
8.2 Casual
Employment
8.2.1 A casual
employee is an employee engaged as such.
8.2.2 A casual
employee shall be paid per hour at the rate of 1/38 of the weekly rate prescribed
for the class of work performed, plus the appropriate undermentioned addition
to that rate:
(a) On any ordinary
day Monday to Friday inclusive for all time worked, an additional 25 per cent
of the wages prescribed in clause 12 - of this Award for the classification in
which the employee is casually employed.
(b) On Saturday and
Sunday for all time worked an additional 50 per cent for Saturday and 75 per
cent for Sunday of the wages prescribed in clause 12, for the classification in
which the employee is casually employed.
(c) On a holiday
as prescribed in clause 27, Public Holidays.
(i) a casual
employed in any capacity in or in connection with flats and residential
chambers and establishments of a like nature will receive an additional 150 per
cent of wages prescribed in clause 12 of this Award for the classification in
which the employee is casually employed;
(ii) all other
casuals will receive an additional 175 per cent of wages prescribed in clause
12 of this Award for the classification in which the employee is casually
employed.
(d) The loadings
prescribed in paragraphs (a), (b) and (c) comprehend the 1/12th payment payable
under the Annual Holidays Act, 1944.
(e) A casual employee
shall be employed with a minimum payment of two hours pay for each engagement
at the appropriate rate that would have been payable had the employee worked.
(f) For the
purposes of this award engagement means the period or periods for which the employer
notifies the employee that he or she is so required to attend on any one day.
Each period of engagement stands alone and is treated as an engagement of not
less than two hours, and is paid for as such.
(g) In this
clause, ordinary earnings means 1/38 of the wages prescribed in clause 12 of
this Award plus an additional 25 per cent.
(h) By mutual
consent casual work may be paid for weekly or at the termination of each
engagement.
(i) Casual
employees who are paid their wages at any time other than during their working
time shall, if kept waiting for more than fifteen minutes, be paid overtime
rates for all such waiting time.
8.2.3 The following
Award clauses apply to casual employees:
(j) 2, 6, 7, 8.1,
8.2, 8.5, 9, 12, 16.3, 16.4, 16.5, 16.6, 16.7.1, 16.7.2, 17, 19, 27, 32, 35.
(k) Any dispute
about a refusal of an election to convert a contract of employment or about the
matters referred to in sub-paragraph 8.2.4(b) must be dealt with in accordance
with the provisions of clause 6 - Procedure to avoid industrial disputation.
8.2.4 Conversion to
full-time or regular part-time employment
(a)
(i) This clause
only applies to a regular casual employee.
(ii) A regular
casual employee means a casual employee who is employed by an employer on a
regular and systematic basis for several periods of employment or on a regular
and systematic basis for an ongoing period of employment during a period of at
least twelve months.
(b) A regular
casual employee who has been engaged by a particular employer for at least
twelve months, may elect (subject to the provisions of this clause) to have his
or her contract of employment converted to full-time or regular part-time
employment.
(i) An employee
who has worked at the rate of an average of 38 or more hours a week in the
period of twelve months casual employment may elect to have his or her
employment converted to full-time employment.
(ii) An employee
who has worked at the rate of an average less than 38 hours a week in the period
of twelve months casual employment may elect to have his or her employment
converted to regular part-time employment.
(iii) Where a
regular casual employee seeks to convert to full-time or regular part-time
employment, the employer may consent to or refuse the election, but only on
reasonable grounds. In considering a request, the employer may have regard to
any of the following factors:
the size and needs of the workplace or enterprise;
the nature of the work the employee has been doing;
the qualifications, skills, and training of the
employee;
the trading patterns of the workplace or enterprise
(including cyclical and seasonal trading demand factors);
the employee's personal circumstances, including any
family responsibilities; and
any other relevant matter.
(c) Where it is
agreed that a regular casual employee will have his or her employment converted
to full-time or regular part-time employment as provided for in this clause,
the employer and employee must discuss and agree upon:
(i) to which form
of employment the employee will convert - that is, full-time or regular
part-time employment; and
(ii) if it is
agreed that the employee will become a regular part-time employee, the matters
referred to in subclause 8.3 of this Award.
(d) Despite
paragraph 8.3.5 of this Award, where a regular casual employee is at 1 January
2006 engaged for a two hour minimum shift pursuant to sub-paragraph 8.2.2(e) of
this Award, the employer and employee may agree that the employee will convert
to regular part-time employment as provided for in this clause for a minimum of
two consecutive hours on any shift. However, nothing in this clause requires an
employer to convert a casual employee working two hour shifts to regular part
time employment.
(e) The date from
which the conversion will take effect is the commencement of the next pay cycle
following such agreement being reached unless otherwise agreed.
(f) Once a regular
casual employee has converted to full-time or regular part-time employment, the
employee may only revert to casual employment with the written agreement of the
employer.
(g) An employee
must not be engaged and/or re-engaged (which includes a refusal to re-engage)
to avoid any obligation under this Award.
(h) Nothing in this
clause obliges a casual employee to convert to full time or regular part time
employment, nor permits an employer to require a casual employee to so convert.
(i) Nothing in
this clause requires an employer to convert the employment of a regular casual
employee to full time or regular part time employment if the employee has not
worked for twelve months or more in a particular establishment or in a
particular classification stream.
(j) Nothing in the
clause requires an employer to increase the hours of a regular casual employee
seeking conversion to full time or regular part-time employment.
(k) Any dispute
about a refusal of an election to convert a contract of employment or about the
matters referred to in sub-paragraph 8.2.4(b) must be dealt with in accordance
with the provisions of clause 6 - Procedure to avoid industrial disputation.
(l) Eligible
employees who convert their employment under the provisions of this clause may
do so from 1 January 2006. Service with the same employer prior to 1 January 2006
will be taken into account for the purposes of any such election. Any dispute
arising about the application of this sub-clause between the date of this order
and 1 January 2006 may be referred to the Commission for resolution.
8.3 Regular
Part-Time Employees
8.3.1 An employer may
employ regular part-time employees in any classification in this award.
8.3.2 A regular
part-time employee is an employee who:
(a) works less than
full-time hours of 38 per week; and
(b) has reasonably
predictable hours of work; and
(c) receives, on a
pro rata basis, equivalent pay and conditions to those of full-time employees
who do the same kind of work.
8.3.3 At the time of
engagement the employer and the regular part-time employee will agree in
writing, on a regular pattern of work, specifying at least the hours worked
each day, which days of the week the employee will work and the actual starting
and finishing times each day.
8.3.4 Any agreed
variation to the regular pattern of work will be recorded in writing.
8.3.5 An employer is
required to roster a regular part-time employee for a minimum of three
consecutive hours on any shift.
8.3.6 An employee who
does not meet the definition of a regular part-time employee and who is not a
full-time employee will be paid as a casual employee in accordance with clause
8.2.
8.3.7 All time worked
in excess of the hours as mutually arranged will be overtime and paid for at
the rates prescribed in clause 20 - Overtime, of this award.
8.3.8 A regular
part-time employee employed under the provisions of this clause must be paid
for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed
for the class of work performed.
8.4 Apprentices
8.4.1
(a) An employee
apprenticed in accordance with the provisions of the Apprenticeship and
Traineeship Act 2001 must be paid the percentage of the total wage
prescribed for Hospitality Services Grade 4 as follows:
Year of
Apprenticeship
|
Percentage
|
First year
|
55%
|
Second year
|
65%
|
Third year
|
80%
|
Fourth year
|
95%
|
(b) All percentages
prescribed in this clause will be calculated to the nearest 10 cents. Any broken part of 10 cents in the result
being less than 5 cents will be disregarded; 5 cents and over will go to the
higher 10 cents.
8.4.2 Waiting Trade
(a) An employee
apprenticed in accordance with the provisions of the Apprenticeship and
Traineeship Act 2001 (NSW) must be paid the percentage of the total wages
prescribed for a qualified waiter in Hospitality Services Grade 4 as follows:
Year of
Apprenticeship
|
Percentage
|
First six months
|
65%
|
Second six months
|
80%
|
Third six months
|
80%
|
Fourth six months
|
95%
|
Fifth six months
|
95%
|
(b) All percentages
prescribed in this clause will be calculated to the nearest 10 cents. Any broken part of 10 cents in the result
being less than 5 cents will be disregarded; 5 cents and over will go to the
higher 10 cents.
(c) All matters
prescribed in subparagraph (a) of this paragraph only apply to apprentices
wages and in no other way supersede or affect any other provisions of the Apprenticeship
and Traineeship Act 2001.
8.4.3 Progression
through Wage Structure
(a) School based
apprentices progress through the wage scale at the rate of 12 months’
progression for each two years of employment as an apprentice.
(b) The rates of
pay are based on a standard apprenticeship of four years. The rate of progression
reflects the average rate of skill acquisition expected from the typical
combination of work and training for a school based apprentice undertaking the
applicable apprenticeship.
8.4.4 Conversion from
a school based to a full time apprenticeship
Where an apprentice converts from a school based to a
full-time apprenticeship, all time spent as a full-time apprentice counts for
the purpose of progression through the wage scale set out in this Award. This
progression applies in addition to the progression achieved as a school based
apprentice.
8.4.5 Conditions of
Employment
Except as provided by this award, school based
apprentices are entitled to pro rata entitlements of all other conditions of
employment contained in this Award.
8.4.6 Disputes and
Disciplinary Matters
The provisions of the Apprenticeship and Traineeship
Act 2001 shall apply for the resolution of disputes and disciplinary
matters.
8.5 Juniors
8.5.1 Other Than
Office Juniors
The minimum rates of wages for junior employees shall
be the undermentioned percentages of the total rate prescribed for the adult
classification appropriate to the work performed for the area in which work is
performed.
Age
|
Percentage
|
17 years of age and under
|
60%
|
18 years of age
|
70%
|
19 years of age
|
85%
|
20 years of age
|
100%
|
8.5.2 Junior Office
Employees
(a) The minimum
rates of wages for junior office employees shall be the undermentioned
percentages based on the total adult rate for the Hospitality Administration
and Front Office Grade 1 classification.
Age
|
Percentage
|
At 15 years of age and under
|
37%
|
At 16 years of age
|
44%
|
At 17 years of age
|
58%
|
At 18 years of age
|
72%
|
At 19 years of age
|
82.5%
|
At 20 years of age
|
94%
|
(b) All percentages
prescribed in this clause will be calculated to the nearest 10 cents. Any
broken part of 10 cents in the result being less than 5 cents will be
disregarded, 5 cents and over will go to the higher 10 cents.
8.5.3 Junior employees
on reaching the age of 18 years, may be employed in the sale of liquor.
However, where such a junior is employed, the adult Award rate for the work
being performed shall be paid.
8.5.4 An employer may
at any time demand the production of a birth certificate or other satisfactory
proof for the purpose of ascertaining the correct age of a junior
employee. If a birth certificate is
required, the cost of it shall be borne by the employer.
9. Standing Down
Employees
9.1 An employer may
deduct payment for any day or part of a day on which an employee cannot be
usefully employed for the following reasons:
9.1.1 A strike or stop
work meeting (except as provided in clause 32, Leave for Consultation
Meetings).
9.1.2 A breakdown of
machinery.
9.1.3 Rationing of power
or the lack of fuel or transport.
9.1.4 The non-delivery
of the raw material and finished product in the Liquor Trades Industry.
9.1.5 Any cause which
the employer cannot reasonably be held responsible for, but shall not apply to
slackness of trade.
9.2 In respect to
subclauses 9.1.1 and 9.1.5 hereof:
9.2.1 No employee
shall be deemed to be a casual employee only by reason of being given
intermittent work in pursuance of this clause.
9.2.2 At least four
hours notice of such deductions shall be exhibited where all employees
concerned shall be able to see it.
9.2.3 Service is not
to be considered broken merely because employees have been temporarily stood
down through no fault of their own.
9.2.4 Continuity of
service is to be protected for the purpose of annual leave, holidays and sick
pay, as provided by this Award.
9.2.5 Employees
allowed or required to commence work at the usual starting time on any day
shall be paid for at least four hours, and where they are called upon to attend
for duty twice on any one day they shall be paid not less than a full day's
pay.
10. Redundancy
10.1 Application
10.1.1 This clause shall
apply in respect of full-time and part-time employees employed in the
classifications specified in clause 12.
10.1.2 This clause shall
only apply to employers who employ 15 or more employees immediately prior to
the termination of employment of employees.
10.1.3 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.
10.1.4 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 or neglect of duty, 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.
10.2 Introduction of
Change
10.2.1 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 notify the employees who may be
affected by the proposed changes and the union to which they belong.
10.2.2 "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 this clause makes provision for
alteration of any of the matters referred to herein, an alteration shall be
deemed not to have significant effect.
10.3 Employer’s Duty
to Discuss Change
10.3.1 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 subclause 10.2.
Introduction of Change, of this clause, 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.
10.3.2 The discussions
shall commence as early as practicable after a definite decision has been made
by the employer to make the changes referred to in clause 10.2.1 of this
clause.
10.3.3 For the purpose of
such discussions, 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 effects 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.
10.4 Discussions
Before Terminations
10.4.1 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 clause 10.2.1,
Introduction of change, of this clause, 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.
10.4.2 The discussions
shall take place as soon as is practicable after the employer has made a
definite decision which will invoke the provision of clause 10.4.1 of this
subclause and shall cover, inter alia, any reasons for the proposed
termination, measures to avoid or minimise the terminations and measures to
mitigate any adverse effects of any termination on the employees concerned.
10.4.3 For the purposes
of the discussions 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 employees 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.
10.5 Notice for
Changes in Production, Program, Organisation or Structure - This subclause sets
out the notice for provisions to be applied to terminations by the employer for
reasons arising from production, program, organisation or structure, in
accordance with subclause 10.2.1 of this clause.
10.5.1 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
|
10.5.2 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 2 weeks’ notice.
10.5.3 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.
10.6 Notice for
Technological Change - This subclause sets out the notice provisions to be
applied to termination by the employer for reasons arising from technology in
accordance with subclause 10.2.1 of this clause.
10.6.1 In order to
terminate the employment of an employee, the employer shall give to the
employee three months’ notice of termination.
10.6.2 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.
10.6.3 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.
10.7 Time Off During
The Notice Period
10.7.1 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 purpose of seeking other employment.
10.7.2 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.
10.8 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 expiry of such notice. Provided that, in such circumstances, the
employee shall not be entitled to payment in lieu of notice.
10.9 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.
10.10 Notice to
Centrelink - Where a decision has been made to terminate employees, the
employer shall notify 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.
10.11 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.
10.12 Transfer To
Lower-Paid Duties - Where an employee is transferred to lower-paid duties for
reasons set out in subclause 10.2.1, Introduction of change, of this clause,
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 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 rates for the number of weeks of notice still owing.
10.13 Severance Pay -
Where an employee is to be terminated pursuant to subclause 10.5, subject to
further order of the Industrial Relations Commission of New South Wales, the
employer shall pay the employee the following severance pay in respect of a
continuous period of service:
10.13.1 If an
employee is under 45 years of age, the employer shall pay in accordance with
the following scale:
Years of Service
|
Under 45 Years of
Age Entitlement
|
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 4 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
|
10.13.2 Where an
employee is 45 years of age or over, the entitlement shall be in accordance
with the following scale:
Years of Service
|
45 Years of Age or
over Entitlement
|
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 4 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
|
10.13.3 "Week’s
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 paid in accordance with this
award.
10.14 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 subclause 10.13.
The Commission shall have regard to such financial and
other resources of the employer concerned as the Commission thinks relevant,
and the probable effect paying the amount of severance pay in subclause 10.13
will have on the employer.
10.15 Alternative
Employment - Subject to an application by the employer and further order of the
Commission, an employer may pay a lesser amount (or no amount) of severance pay
than that contained in subclause 10.13 of this clause if the employer obtains
acceptable alternative employment for an employee.
11. Termination of
Employment
11.1 Notice of
Termination By Employer
11.1.1 In order to
terminate the employment of a full-time or regular part-time employee the
employer shall give to the employee the period of notice specified in the table
below:
Period of Continuous Service
|
Period of Notice
|
1 year or less
|
1 week
|
Over 1 year and up to the completion of 3 years
|
2 weeks
|
Over 3 years and up to the completion of 5 years
|
3 weeks
|
Over 5 years of completed service
|
4 weeks
|
11.1.2 In addition to
this notice, employees over 45 years of age at the time of the giving of the
notice with not less than two years continuous service, are entitled to an
additional week’s notice.
11.1.3 Payment in lieu of
the notice will be made if the appropriate notice period is not required to be
worked. Employment may be terminated by the employee working part of the
required period of notice and by the employer making payment for the remainder
of the period of notice.
11.1.4 In calculating any
payment in lieu of notice, the wages an employee would have received in respect
of the ordinary time they would have worked during the period of notice had
their employment not been terminated will be used.
11.1.5 The period of
notice in this clause, shall not apply in the case of dismissal for conduct
that justifies instant dismissal including inefficiency within the first
fourteen days, neglect of duty or misconduct and in the case of casual
employees, apprentices or employees engaged for a specific period of time or
for a specific task or tasks.
11.1.6 Despite the
foregoing provisions, trainees who are engaged for a specific period of time
shall once the traineeship is completed and provided that the trainees’
services are retained have all service including the training period counted in
determining entitlements. In the event that a trainee is terminated at the end
of his or her traineeship and is re-engaged by the same employer within six
months of such termination the period of traineeship shall be counted as service
in determining any future termination.
11.1.7 Continuous service
is defined in subclause 2.11.
11.2 Notice of
Termination by an Employee
11.2.1 The notice of
termination required to be given by an employee is the same as that required of
an employer, save and except that there is no requirement on the employee to
give additional notice based on the age of the employee concerned.
11.2.2 If an employee
fails to give notice the employer has the right to withhold monies due to the
employee to a maximum amount equal to the ordinary time rate of pay for the
period of notice.
11.3 Time Off During
Notice Period - Where an employer has given notice of termination to an
employee, an employee shall be allowed up to one day’s time off without loss of
pay for the purpose of seeking other employment. The time off shall be taken at
times that are convenient to the employee after consultation with the employer.
12. Classifications
and Wage Rates
12.1 An adult
employee of a classification specified in the table hereunder shall be paid not
less than the rate per week assigned to that classification for the area in
which such employee is working.
12.2 Minimum Rates of
Pay
Level & Classification
|
Beginning of
|
Beginning of
|
|
FFP to commence
|
FFP to commence
|
|
on or after
|
on or after
|
|
16/12/14
|
16/12/15
|
|
(2.38%)
|
(2.5%)
|
|
$
|
$
|
Introductory Level
|
642.90
|
659.00
|
LEVEL 1
|
|
|
Hospitality Services Grade 1
|
663.40
|
680.00
|
LEVEL 2
|
|
|
Hospitality Services Grade 2
|
694.00
|
711.40
|
Leisure Attendant Grade 1
|
694.00
|
711.40
|
Hospitality Administration and Front Office Grade 1
|
694.00
|
711.40
|
LEVEL 3
|
|
|
Hospitality Services Grade 3
|
716.70
|
734.60
|
Hospitality Administration and Front Office Grade 2
|
716.70
|
734.60
|
Leisure Attendant Grade 2
|
716.70
|
734.60
|
LEVEL 4
|
|
|
Hospitality Services Grade 4
|
757.90
|
776.80
|
Hospitality Administration and Front Office Grade 3
|
757.90
|
776.80
|
Leisure Attendant Grade 3
|
757.90
|
776.80
|
LEVEL 5
|
|
|
Hospitality Services Grade 5
|
809.00
|
829.20
|
Hospitality Administration and Front Office Supervisor
|
809.00
|
829.20
|
LEVEL 6
|
|
|
Hospitality Services Grade 6
|
832.20
|
853.00
|
12.3 Career Streams -
Despite the recognition of three career path streams, such streaming does not
prevent employees undertaking duties as are within the limits of the employee's
skill, competence and training at the direction of an employer, within or across
different streams provided that where work is undertaken at a higher grade
and/or higher rate then clause 14 - Mixed Functions is applied.
12.4 The rates of pay
in this award include the adjustments payable under the State Wage Case
2010. These adjustments may be offset
against:
(i) Any
equivalent over-award payments, and/or
(ii) Award wage
increases since 29 May 1991 other than safety net, State Wage Case and minimum
rates adjustments.
12.5 Rates of Pay for
school based apprentice
(a) The hourly
rates for full time apprentices as set out in this Award shall apply to school
based apprentices for total hours worked including time deemed to be spent in
off-the job training.
(b) For the
purposes of subclause (a) of this clause, where a school based apprentice is a
full time school student, the time spent in off-the-job training for which the
school based apprentice is paid is deemed to be 25 per cent of the actual hours
worked on-the-job each week. The wages paid for training time may be averaged
over the school term or year.
(c) Where this
Award specifies a weekly rate for full time apprentices the hourly rate shall
be calculated by dividing the applicable weekly rate by 38.
13. Supported Wage
System for Employees With Disabilities
13.1 Workers Eligible
For A Supported Wage - This clause 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.
In the context of this clause, the following definitions will apply:
13.1.1 Supported wage
system means the Commonwealth Government system to promote employment for
people who cannot work at full Award wages because of a disability, as
documented in Supported Wage System:
Guidelines and Assessment Process.
13.1.2 Accredited
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.
13.1.3 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, as
amended from time to time, or any successor to that scheme.
13.1.4 Assessment instrument
means the form 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.
13.2 Eligibility
Criteria -
13.2.1 Employees covered
by this clause 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.
13.2.2 The clause 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 current employment.
13.2.3 The Award does not
apply to employers in respect of their facility, programme, undertaking service
or the like which receives funding under the Disability Services Act 1986 and
fulfils the dual role of service provider and sheltered employer to people with
disabilities who are in receipt of or are eligible for a disability support
pension, except with respect to an organisation which has received recognition
under s.10 or s.12A of the Disability Services Act 1986, or if a part only has
received recognition, that part.
13.3 Supported Wage
Rates
13.3.1 Employees to whom this
clause applies shall be paid the applicable percentage of the minimum rate of
pay prescribed by this Award for the class of work which the person is
performing according to the following schedule:
Assessed Capacity
|
% of Prescribed
Award Rate
|
(subclause 13.4)
|
|
10%*
|
10%
|
20%
|
20%
|
30%
|
30%
|
40%
|
40%
|
50%
|
50%
|
60%
|
60%
|
70%
|
70%
|
80%
|
80%
|
90%
|
90%
|
13.3.2 Provided that the
minimum amount payable shall be not less than $56 per week.
13.3.3 Where a person's assessed
capacity is 10 per cent, they shall receive a high degree of assistance and
support.
13.4 Assessment of
Capacity - For the purpose of establishing the percentage of the Award rate to
be paid to an employee under this Award, the productive capacity of the
employee will be assessed in accordance with the Supported Wage System and
documented in an assessment instrument by either:
13.4.1 the employer and a
union party to the Award, in consultation with the employee or, if desired by
any of these;
13.4.2 the employer and
an Accredited Assessor from a panel agreed by the parties to the Award and the
employee.
13.5 Lodgement of
Assessment Instrument
13.5.1 All assessment
instruments under the conditions of this clause, including the appropriate percentage
of the Award wage to be paid to the employee, shall be lodged by the employer
with the Registry of the Industrial Relations Commission of NSW.
13.5.2 All assessment
instruments shall be agreed and signed by the parties to the assessment, provided
that where a union which is party to the Award, is not a party to the
assessment, it shall be referred by the Registry to the union by certified mail
and shall take effect unless an objection is notified to the Registrar within
10 working days.
13.6 Review of
Assessment - The assessment of the applicable percentage should be subject to
annual review or earlier on the basis of a reasonable request for such a
review. The process of review shall be
in accordance with the procedures for assessing capacity under the Supported
Wage System.
13.7 Other Terms and
Conditions of Employment - Where an assessment has been made, the applicable
percentage shall apply to the wage rate only. Employees covered by the
provisions of the clause will be entitled to the same terms and conditions of
employment as all other workers covered by this Award paid on a pro rata basis.
13.8 Workplace
Adjustment - An employer wishing to employ a person under the provisions of
this clause shall 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 areas.
13.9 Trial Period -
13.9.1 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 clause for a trial period not
exceeding 12 weeks, except in some cases additional work adjustment time (not
exceeding four weeks) may be needed.
13.9.2 During that trial
period the assessment of capacity shall be undertaken and the proposed wage
rate for a continuing employment relationship shall be determined.
13.9.3 The minimum amount
payable to the employee during the trial period shall be no less than $56 per
week.
13.9.4 Work trials should
include induction or training as appropriate to the job being trialled.
13.9.5 Where the employer
and employee wish to establish a continuing employment relationship following
the completion of the trial period, a further contract of employment shall be
entered into based on the outcome of assessment under subclause 13.4.
14. Mixed Functions
14.1 An employee
engaged for two or more hours on one day on duties carrying a higher rate than
the ordinary classification shall be paid the higher rate for such day. If for
less than two hours he or she shall be paid the higher rate for the time so
worked.
14.2 A higher paid
employee shall, when necessary, temporarily relieve a lower paid employee without
loss of pay.
15. Payment of Wages,
Time and Wages Records
15.1.1 Except upon the
termination of employment, all wages of full time and regular part-time
employees including overtime shall be paid on any day other than Friday,
Saturday, Sunday in each week and not more than two days wages shall be kept in
hand by the employer. However, by agreement between the employer and the
majority of employees in the workplace, in a week where a holiday occurs
payment of wages may be made on a Friday.
15.1.2 By agreement
between the employer and the employee wages may be paid either weekly or
fortnightly by one of the following means:
(a) cash;
(b) cheque; or
(c) payment into
employee's nominated financial institution account, without cost to the
employee.
15.1.3 In the event of a
disagreement, the provisions of clause 6 may be applied.
15.1.4 However, an
employer may pay an employee weekly by cash without consultation.
15.1.5 Employees who are
paid their wages at any time other than during their working time shall, if
kept waiting for more than 15 minutes, be paid overtime rates for all such
waiting time.
15.1.6 When notice of
termination of employment has been given by an employee or an employee's
services have been terminated by an employer, payment of all wages and other
monies due shall be made at the employee's normal place of employment during
normal office hours, prior to the employee leaving such place of employment. If
an employee is kept waiting for more than 15 minutes after termination of employment
such employee shall be paid overtime rates for waiting time.
15.1.7 Provided where an
employee is dismissed for misconduct, such employee shall be paid within one
hour from the time of dismissal, if such takes place within ordinary office
hours or otherwise as soon thereafter as is practical.
15.1.8 For the purposes
of this clause, waiting time means all time an employee is kept waiting on the
premises of the employer on the day of termination of employment in excess of
the waiting time specified herein. In the event of an employee not being paid
on the day of termination of employment, such employee shall be paid at the
rate of time and a half until payment is effected, with a minimum payment of 2
hours and a maximum of eight hours per day. The above eight hours shall refer
to the period of shift normally worked by the employee.
15.1.9 Despite the
foregoing provisions if it is established the failure to pay an employee
correctly at time of termination was due to a genuine error by the employer, payment
of waiting time over and above the day of termination shall not apply. Any disputes arising in relation to this
issue shall be dealt with in accordance with Clause 6 ‘Procedure to Avoid
Industrial Disputation’.
15.2 Alternative
Method of Payment
15.2.1 As an
alternative to being paid by the week according to Clause 12 - Classifications
and Wage Rates, by agreement between the employer and the employee an employee
can be paid at a rate equivalent to an annual salary of at least 25 per cent or
more above the rate prescribed in Clause 12 - Classifications and Wage Rates
times 52 for the work being performed.
In such cases, there is no requirement under Clauses 20 - Overtime, 21 -
Saturday work, 22 - Sunday Work, subclause 18.8 - Work Outside Daily Hours and
Clause 27 - Public Holidays to pay overtime or penalty rates in addition to the
weekly Award wage, provided that the salary paid over a year was sufficient to
cover what the employee would have been entitled if all Award overtime and
penalty rate payment obligations had been complied with.
15.2.2 Provided
further in the event of termination of employment prior to completion of a year
the salary paid during such a period of employment shall be sufficient to cover
what the employee would have been entitled to if all Award overtime and penalty
rate payment obligations had been complied with.
15.2.3 An
employee being paid according to this clause shall be entitled to a minimum of
eight days off per four week cycle.
Further, if an employee covered by this clause is required to work on a
public holiday, such employee shall be entitled to a day off in lieu or a day
added to his/her annual leave entitlement.
16. Allowances
16.1 Meal Allowance
16.1.1 A
full time or regular part-time employee required to work overtime for more than
two hours without being notified on the previous day or earlier that he or she
will be so required to work shall either be supplied with a meal by the
employer or paid $12.30 meal money.
16.1.2 If an
employee pursuant to notice has provided a meal and is not required to work
overtime or is required to work less than the amount advised, he or she shall
be paid as above prescribed for the meal which he or she has provided but which
is surplus.
16.2 Broken periods
of work allowance
16.2.1 A full time or
regular part-time employee who has a broken work day shall receive an
additional allowance for a spread of hours prescribed as follows:
|
Rate per day
|
Spread of hours
|
(2.5%)
|
|
$
|
|
SWC 2015
|
Under 10
|
Nil
|
10 but under 10-1/2
|
1.49
|
10-1/2 but under 11-1/2
|
2.94
|
11-1/2 or more
|
4.43
|
16.3 Penalty rates
not cumulative
Except as provided in clause 19, Meal Breaks of this
award where time worked is required to be paid for at more than the ordinary rate,
such time shall not be subject to more than one penalty, but shall be subject
to that penalty which is to the employee's greatest advantage.
16.4 Board and
lodging
16.4.1
(a) Where board and
residence is made available to adult employees the employer shall have the
right to deduct from the pay of the employees residing on the premises an
amount of $136.40 per week of seven days.
(b) Provided that
where an adult employee is required to share a room for lodging, the amount to be
deducted from the pay of the employee for lodging shall be $134.60 per week of
seven days.
16.4.2
(a) Where lodging
only is made available to adult employees, the employer shall have the right to
deduct from the pay of the employee residing on the premises the sum of $130.10
per week of seven days.
(b) Provided that
where an adult employee is required to share a room for lodging, the amount to
be deducted from the pay of such employee for lodging, shall be $129.75 per
week of seven days.
16.4.3 In the
case of employees who do not reside on the employer's premises a deduction at
the rate of $7.35 for each meal supplied and consumed during the employee's
spread of working hours may be deducted by the employer.
16.4.4 The
rates for board and lodging for adults shall be increased or decreased by 21
cents, for each meal by one cent, for every 50 cents per week alteration in the
rate of classification Hospitality services grade 1 in clause 12 -
Classification and wage rates.
16.4.5 Junior
employees receiving adult rates of pay as prescribed in this Award shall be
subject to the deductions applicable to adults prescribed in this clause.
16.4.6 Junior
employees receiving junior rates of pay shall be subject to a deduction at the
rate of 50 cents for each meal supplied and consumed during the employee's
spread of working hours.
16.5 Laundry
allowance
Where any employee is required to wear a special
uniform such uniform shall be provided and laundered by the employer free of
cost to the employee or if mutually agreed that the employee shall launder such
uniform the employer shall pay the employee $2.50 for each uniform so laundered
with a maximum of $7.80 per week.
16.6 Clothing,
equipment and tools
16.6.1 Where
it is necessary that an employee wear waterproof or other protective clothing
such as waterproof boots, aprons, or gloves, the employer must reimburse the
employee for the cost of purchasing such clothing. The provisions of this
clause do not apply where the special clothing is supplied without cost to the
employee. Where protective clothing is supplied without cost to the employee ,
it will remain the property of the employer. In the event of a dispute, the
necessity for the provision of protective clothing may be determined by the
Motels, Accommodation and Resorts, &c., Employees (State) Industrial
Committee.
16.6.2 Where
the employer requires an employee to provide and use any tools, brushes,
knives, choppers, implements, utensils and materials, the employer must
reimburse the employee for the cost of purchasing such equipment. The
provisions of this clause shall not apply where the employer supplied such
items without cost to the employee.
16.6.3 An
employer may require an employee on commencing employment to sign a receipt for
item/s of uniform and property. This receipt must list the item/s of uniform
and the value of them. If, when an employee ceases employment the employee does
not return the item/s of uniform and property (or any of them) in accordance
with receipt the employer will be entitled to deduct the value as stated on the
receipt from the employees wages.
16.6.4 In
the case of genuine wear and tear, damage, loss, or theft that is not the
employee's fault the provision of 16.6.3 will not apply.
16.6.5 Any disagreement
concerning the value of item/s of uniform and any other aspect of this clause
shall be determined by the Motels, Accommodation and Resorts, &c.,
Employees (State) Industrial Committee.
16.7 Travelling,
transport and fares
16.7.1 Where
an employee is detained at work until it is too late to travel by the last
ordinary train, tram, vessel or other regular conveyance to his or her usual
place of residence the employer shall either provide proper conveyance or
provide accommodation for the night free of charge.
16.7.2 If an
employee is required to start work before his ordinary commencing time and
before the first ordinary means of conveyance (hereinbefore prescribed) is
available to convey him or her from his or her usual place of residence to the
place of employment, the employer shall provide a conveyance or pay the cost
thereof.
16.7.3 Where
a full time or regular part-time employee is engaged for work outside a
distance of 44 kilometres from the place of engagement he or she shall be paid
all fares actually and necessarily incurred in travelling from the place of
engagement to the place of employment; provided that if the employee leaves his
or her place of employment or is dismissed for misconduct within a period of
three months of the date engagement, the employer may recover from the employee
the fare paid on engagement.
16.8 Overnight Stay
Where the employer requests and an employee agrees to
stay overnight on the employer's premises for a period outside that of the
employee's normal rostered hours of duty, the following arrangements shall
apply:
16.8.1 An
employee shall be entitled to an amount of $48.52 per overnight stay period.
16.8.2 This
payment shall be deemed to provide compensation for the overnight stay and also
includes compensation for all work necessarily undertaken by an employee up to
a total of one hour's duration.
16.8.3 Any
work necessarily performed during an overnight stay period by the employee in
excess of a total of one hour's duration shall be paid for at the rate of time
and one half. The payments referred to
above shall not extend beyond the period of the overnight stay.
16.8.4 Any
time worked under 16.8.2 or 16.8.3 shall not be taken into account for the
purposes of Clause 8 - Types of Employment, Clause 18 - Hours of Work or Clause
20 - Overtime of this award.
16.8.5 An
employee required to stay overnight in accordance with this clause without
being notified on the previous day or earlier that he or she will be so
required shall either be supplied with a meal by the employer or paid $11.50
meal money.
17. Superannuation
17.1 Preamble
17.1.1 Superannuation
legislation
(a) The subject of
superannuation contributions is dealt with extensively by legislation including
the Superannuation Guarantee (Administration) Act 1992, the Superannuation
Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993
and the Superannuation (Resolution of Complaints) Act 1993. The legislation, as varied from time to time,
governs the superannuation rights and obligations of the parties.
(b) Notwithstanding
17.1.1(a) above, the following provisions shall also apply.
17.2 Definitions
17.2.1 The
Fund for the purpose of this clause shall mean the Hospitality Industry Portable
Liquor Union Superannuation Trust Deed (HOST-PLUS) which complies with the
Superannuation Industry (Supervision) Act 1993 as amended from time to time,
and any scheme which may be made in succession thereto.
17.2.2 Ordinary
time earnings for the purpose of this clause, means:
(a) Award
classification rate;
(b) overaward
payment;
(c) shift loading
- including weekend and public holiday penalty rates earned by shift employees
on normal rostered shifts forming the ordinary hours of duty not when worked as
overtime;
(d) casual loading
in respect to casual employees.
17.2.3 Ordinary
time earnings does not include bonuses, Commission, payment for overtime or
other extraordinary payment, remuneration or allowance.
17.3 Employers to
Become a Party to the Fund
17.3.1 An
employer shall make application to the Fund to become a participating employer
in the Fund and shall become a participating employer upon acceptance by the
Trustee of the Fund.
17.3.2 An employer
shall provide each employee who is not a member of the Fund with a membership
application form upon commencement of this clause and thereafter upon
commencement of employment.
17.3.3 Each
employee shall be required to complete the membership application and the
employer shall forward the completed application to the Fund by the end of the
calendar month of commencement of this clause or commencement of employment.
17.4 Eligibility of
Employees
17.4.1 Each
employee shall be eligible to join the Fund upon commencement of employment,
subject to 17.3.1.
17.4.2 Each
employee shall be eligible to receive contributions from the date of
eligibility, notwithstanding the date the membership application prescribed in
17.3.3 was forwarded to the Fund.
17.5 Employer
Contribution
17.5.1
(a) An employer
shall contribute to the Fund in respect of each employee such contributions as
required to comply with the Superannuation Guarantee (Administration) Act 1992
and Superannuation Guarantee Charge Act 1992 as amended from time to time.
(b) Seven per cent
or ordinary time earnings on behalf of each eligible employee:
Ordinary Time Earnings
2000/2001
|
8%
|
2001/2002
|
8%
|
2002/2003
|
9%
|
17.5.2
(a) Provided that the
employer shall make contributions for each employee for each month where the
employee earns $350.00 or more in a calendar month.
(b) The amount of
contributions to the fund shall be calculated to the nearest ten cents, any
fraction below five cents shall be disregarded.
17.5.3 An
employer shall contribute to the Fund:
(a) monthly by the
last day of the month following the total of the weekly contribution amounts
accruing in the previous month in respect of each employee; or
(b) equivalent
monthly contributions at such other times and in such other manner as may be
agreed in writing between the Trustees of a Fund and the employer.
(c) Contributions
shall continue to be paid in accordance with this sub-clause during any period
in respect of which an employee is entitled to receive Accident Pay in
accordance with clause 30 of this Award.
17.6 Voluntary
Employees Contribution
17.6.1 An
employee may make contributions to the Fund in addition to those made by the
respondent employer under subclause 17.5.
17.6.2 An
employee who wishes to make additional contributions must authorise the
respondent employer in writing to pay into the Fund, from the employee's wages,
amounts specified by the employee in accordance with the Fund Trust Deed and
Rules.
17.6.3 An
employer who received written authorisation from the employee, must commence
making payments into the Fund on behalf of the employee within fourteen days of
receiving the authorisation.
17.6.4 An
employee may vary his or her additional contributions by a written
authorisation and the employer must alter the additional contributions within
14 days of receiving the authorisation.
17.6.5 Additional
employees contributions to the Fund requested under this clause shall be
expressed in whole dollars.
17.6.6 Employees
shall have the right to adjust the level of contributions made on their own
behalf on the first of July each year provided that by agreement with the
respondent employer the employees may vary their additional contribution at
other times.
17.7 Exemptions
17.7.1 Persons
employed in any capacity whether permanent or casual in or in connection with
flats and residential chambers and establishments of a like nature, shall be
exempt from the provisions of this clause except for 17.1.1(a).
17.7.2 Where
an agreement is reached at a particular enterprise or workplace, between the
employer and the majority of employees, to provide for the payments of
superannuation contributions into a fund other than HOST PLUS, an application
shall be made to the Commission to vary the operation of the Award in respect
of the enterprise or workplace concerned.
17.7.3 The
agreement must meet the following requirements to enable the Commission to vary
the Award to give effect to it:
(a) That the
majority of employees covered by the agreement genuinely agree to it; and
(b) That the fund
specified is a complying fund under the Superannuation Industry (Supervision)
Act 1993 (SIS).
(c) The union must
be notified of the terms of the agreement at the time it is lodged with the
Commission for approval.
(d) In the event
that the union does not notify the Commission of an objection to the agreement
within fourteen days of the agreement being lodged, the Commission will vary
the Award if satisfied the agreement complies with the SIS Act.
(e) In the event
that the union objects to the agreement within the specified time then the
matter will be set down for hearing.
17.7.4
(a) In respect of
non union members in any contested matter, the union must bear the onus of
establishing that "special circumstances" exist which warrant the
continued specification of HOST PLUS as the prescribed fund. In respect of union members, the employer
applicant must bear the onus of establishing its case on the usual grounds of
"equity, good conscience and the substantial merits of the case".
(b) Failure by an
employer to give each relevant union an opportunity to be involved in the
process leading up to the making of an agreement may result in the Commission
adjourning or refusing the application to vary the Award.
(c) A relevant
union in this context means an organisation of employees that:
(i) is party to
this Award; and
(ii) has one or
more members employed by the employer to perform work in the relevant
enterprise or workplace.
18. Hours of Work
18.1 The ordinary
hours of work of a full-time employee are an average of 38 hours per week.
18.1.1 The
average of 38 hours per week is to be worked in one of the following ways:
(a) a nineteen day
month, of eight hours each day;
(b) four days at
eight hours and one of six hours;
(c) four days at
nine and a half hours per day;
(d) five days of
seven hours and 36 minutes per day;
(e) 152 hours per
each four week period; or
(f) 160 hours per
each four week period, with a day banked per period up to a maximum of five.
(g) any
combination of the above.
18.2 The arrangement
for working the average of 38 hours per week is to be agreed between the
employer and the employee from the alternatives in clause 18.1.
18.3 The agreed hours
of work arrangement must meet the following conditions:
18.3.1 A
minimum of six hours and a maximum of eleven and a half hours may be worked on
any one day. The daily minimum and maximum hours are exclusive of meal break
intervals.
18.3.2 An employee
cannot be rostered to work for more than ten hours per day on more than three
consecutive days without a break of at least 48 hours.
18.3.3 No
more than eight days of more than ten hours may be worked in a four week
period.
18.3.4 An
employee shall be entitled to eight full days off per four week period; and
18.3.5 No
employee shall work more than ten days in succession without a rostered day
off.
18.4 Broken Shifts -
Spread of Hours - Where broken shifts are worked the spread of hours can be no
greater than twelve hours per day,
18.5 Wage
Entitlements - Employees shall be entitled to a week's wages in accordance with
clause 12 of this Award for each week of work.
18.6 Sickness on
Rostered Day Off - Where an employee is sick or injured on his/her rostered day
off he/she shall not be entitled to sick pay nor shall the sick pay entitlement
be reduced as a result of sickness or injury on that day.
18.7 Pay Day - In the
event that an employee by virtue of the arrangement of his/her ordinary working
hours is rostered off duty on a day which coincides with payday such employee
shall be paid no later than the working day immediately following such payday.
18.8 Work Outside
Daily Hours
18.8.1 Full
time or regular part-time employees who are required to work any of their
ordinary hours outside the hours of 7.00 a.m. to 7.00 p.m. on Monday to Friday
inclusive, shall be paid $1.98 per hour, or part thereof, for any such time
worked outside the said hours with a minimum payment of $3.03 for any one day.
18.9 Posting of
Roster
18.9.1 A
roster for all full time and regular part-time employees showing normal
starting and finishing time and the surname and initials of each employee shall
be prepared by the employer and shall be posted in a conspicuous place or
places accessible to the employees concerned.
18.9.2 The
roster for full time and regular part time employees shall be alterable by
mutual consent at any time or, in the case of a full time employee, by
amendment on 7 days' notice.
18.9.3 Where
practicable, 2 weeks' notice of rostered day or days off shall be given
provided that the days off may be changed by mutual consent or through absence
through sickness or other cause over which the employer has no control.
18.9.4 Any dispute
concerning rostering must be dealt with in accordance with the provisions of
Clause 6 - Procedure to Avoid Industrial Disputation.
18.10 Work on Rostered
Days Off - All work performed on an employee's rostered day off shall be paid
for at double time, with a minimum of 4 hours at the rate of double time.
18.11 Make-Up Time
18.11.1 An
employee may elect, with the consent of the employer, to work "make-up time", under which the
employee takes time off during ordinary hours, and works those hours at a later
time, during the spread of ordinary hours provided in the award, at the
ordinary rate of pay.
18.11.2 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.
19. Meal Breaks
19.1 Meal Breaks
19.1.1 Each
employee shall be granted a meal interval of not less than 30 minutes to be
commenced after completing one hour 30 minutes and not later than 6 hours of
duty. Provided that an employee allowed a crib break of not less than 20
minutes pursuant to subclause 19.1.4 hereof shall be deemed to have been
allowed the meal interval provided in this clause.
19.1.2 The
foregoing provision does not have to apply to casual or part-time employees who
are rostered for 6 hours or less in any day.
19.1.3 Where
it is not possible to grant the meal interval on any day the said meal interval
shall be treated as time worked and paid at the rate for the day plus half time
additional at the ordinary weekly rate, until released for a meal. Provided
that where an employee is required to exceed 5 hours work after the first meal
interval he or she shall be granted a further meal interval of 20 minutes to be
treated as time worked.
19.1.4 Where
an employee's hours of work falls wholly between 11.00 p.m. and 8.00 a.m. the
employee including a part-time employee shall be allowed a crib break of not
less than 20 minutes which shall be counted as time worked.
20. Overtime
20.1 Reasonable
Overtime
20.1.1 Subject
to paragraph 20.1.2 below, an employer may require an employee to work
reasonable overtime at overtime rates or as otherwise provided for in this
award.
20.1.2 An
employee may refuse to work overtime in circumstances where the working of such
overtime would result in the employee working hours, which are unreasonable.
20.1.3 For
the purposes of paragraph 20.1.2 what is unreasonable or otherwise will be determined
having regard to:
(a) Any risk to
employee health and safety;
(b) The employee's
personal circumstances including any family and carer responsibilities;
(c) The needs of
the workplace or enterprise;
(d) The notice (if
any) given by the employer of the overtime and by the employee of his or her
intention to refuse it; and
(e) Any other
relevant matter.
20.2 All time worked
by a full time employee in excess of the ordinary hours and/or outside the
spread of hours or outside the rostered hours prescribed in clause 18 of this
Award shall be overtime and shall be paid for at the following rates:
20.2.1 Monday
to Friday inclusive time and a half for the first 2 hours and double time for
all work thereafter.
20.2.2 Between
midnight Friday and midnight Saturday time and 3/4 for the first 3 hours and
double time for all time worked thereafter.
20.2.3 Between
midnight Saturday and midnight Sunday double time for all time worked.
20.2.4 Overtime
on any day shall stand alone.
20.2.5 If an
employee is so long on overtime duty following his or her normal finishing time
that he or she has not had 8 hours interval before his or her next regular
starting time such employee shall be allowed at least 8 consecutive hours
interval without deduction of pay or shall be paid at overtime rates for all
time of duty until such employee has had at least 8 hours interval.
20.3 Despite the rate
prescribed in clause 20.2.1, 20.2.2 and 20.2.3 at the instigation of the
employee there may be an agreement in writing between the employee and employer
to take time-off with pay equivalent to the amount for which payment would
otherwise have been made. Such accumulated time must be taken within four weeks
from the time of accrual.
20.4 A regular part-time
employee is paid at overtime rates in the circumstances specified in clause
8.3.7.
21. Saturday Work
All ordinary time worked by full time or regular
part-time employees from midnight Friday to midnight Saturday shall be paid for
at the rate of time and a quarter.
22. Sunday Work
All ordinary time worked by full-time or regular
part-time employees from midnight Saturday to midnight Sunday shall be paid for
at the rate of time and three quarters.
23. Annual Leave
23.1 See Annual
Holidays Act, 1944.
23.2 During any
period of annual leave an employee shall receive a loading of 17.5% calculated
on the rates of pay prescribed by clause 12, Classifications and Wage Rates.
23.3 An employee may
elect, with the consent of the employer to take annual leave not exceeding ten
days in single-day periods, or part thereof, in any calendar year at a time or
times agreed by the parties.
23.3.1 Access
to annual leave, as prescribed in clause 23.3 above, shall be exclusive of any
shutdown period provided for elsewhere under this award.
23.3.2 An
employee and employer may agree to defer payment of the annual leave loading in
respect of single day absences, until at least five consecutive annual leave
days are taken.
23.3.3 An
employee may elect with the employers agreement to take annual leave at any
time within a period of 24 months from the date at which it falls due.
24. Personal Leave
24.1 Sick Leave -
24.1.1 Definition
- Sick leave is leave to which an employee other than a casual is entitled without
loss of pay because of his or her personal illness or injury.
24.1.2 Entitlement
(a) In the first
three calendar months of employment - no more than 10 hours.
(b) In the second
three calendar months of employment - no more than a further 10 hours.
(c) In the first
year of employment - no more than 45.6 hours.
(d) In the second
year of employment and thereafter - no more than 76 hours.
(e) Sick leave may
accumulate to a maximum of 304 hours for full time employees, and for part-time
employees, to a maximum of 8 times the average weekly hours such employee works
in any one year.
(f) The amount of
personal leave to which a regular part-time employee is entitled is determined
on a pro-rata basis, reckoned each calendar month by reference to the following
formula:
Total hours worked in the month
|
x
|
relevant full-time entitlement
|
152
|
|
|
24.1.3 Employee
must give notice
(a) Before taking
sick leave, an employee must give at least two hours’ notice before his or her next
rostered starting time, unless he or she has a good reason for not doing so.
(b) The notice must
include:
the nature of the injury or illness (if known); and
how long the employee expects to be away from work.
(c) If it is not practicable
for the employee to give prior notice of absence, the employee must notify the
employer by telephone at the first opportunity.
24.1.4 Evidence
supporting claim - A claim made for sick leave shall be supported by evidence
from the employee satisfactory to the employer that the employee was unable on
account of illness or personal injury to attend for duty on the day for which
leave is claimed.
24.1.5 The
effect of workers’ compensation - If an employee is receiving workers’
compensation payments, he or she is not entitled to sick leave.
24.2 Carer’s Leave -
24.2.1 Use
of Sick Leave
An employee, other than a casual employee, with
responsibilities in relation to a class of person set out in 24.2.3(b) 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 at subclause 24.1 of clause 24, Personal Leave of the award, for absences
to provide care and support for such persons when they are ill, or who require
care due to an unexpected emergency. Such leave may be taken for part of a
single day.
24.2.2 The
employee shall, if required,
(1) 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, or
(2) establish by
production of documentation acceptable to the employer or a statutory
declaration, the nature of the emergency and that such emergency resulted in
the person concerned requiring care by the employee.
In normal circumstances, an employee must not take
carer's leave under this subclause where another person had taken leave to care
for the same person.
24.2.3 The
entitlement to use sick leave in accordance with this clause is subject to:
(a) the employee
being responsible for the care and support of the person concerned; and
(b) the person
concerned being:
1. a spouse of
the employee; or
2. 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
3. a child or an
adult child (including an adopted child, a step child, a foster child or an
ex-nuptial), parent (including a foster parent and legal guardian),
grandparent, grandchild or sibling of the employee or spouse or de facto spouse
of the employee; or
4. a same sex
partner who lives with the employee as the de facto partner of that employee on
a bona fide domestic basis; or
5. a relative of
the employee who is a member of the same household, where for the purposes of
this paragraph:
(a) "relative"
means a person related by blood, marriage or affinity;
(b) "affinity"
means a relationship that one spouse because of marriage has to blood relatives
of the other; and
(c) "household"
means a family group living in the same domestic dwelling.
24.2.4 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 their 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.
Note: In the unlikely event that more than 10 days sick
leave in any year is to be used for caring purposes the employer and employee
shall discuss appropriate arrangements which, as far as practicable, take
account of the employer’s and employee’s requirements.
Where the parties are unable to reach agreement the
disputes procedure at clause 6, Procedure to Avoid Industrial Disputation,
should be followed.
24.3 Unpaid Leave -
An employee may elect, with the consent of the employer, to take unpaid leave
for the purpose of providing care and support to a class of person set out in
24.2.3(b) above who is ill or who requires care due to an unexpected emergency.
24.4 Time Off in Lieu
of Payment for Overtime
24.4.1 For
the purpose only of providing care and support for a person in accordance with subclause
24.2 of this clause, and despite the provisions of clause 20, Overtime, the
following provisions shall apply.
24.4.2 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.
24.4.3 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.
24.4.4 If,
having elected to take time as leave in accordance with paragraph 24.4.1 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.
24.4A Personal
Carers Entitlement for casual employees -
(1) Subject to the
evidentiary and notice requirements in 24.2.2 and 24.2.4 casual employees are
entitled to not be available to attend work, or to leave work if they need to
care for a person prescribed in subclause 24.2.3(b) of this clause who are sick
and require care and support, or who require care due to an unexpected
emergency, or the birth of a child.
(2) The employer
and the employee shall agree on the period for which the employee will be
entitled to not be available to attend work. In the absence of agreement, the
employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
(3) An employer
must not fail to re-engage a casual employee because the employee accessed the
entitlements provided for in this clause. The rights of an employer to engage
or not to engage a casual employee are otherwise not affected.
24.4.5 Where
no election is made in accordance with the said paragraph 24.4.1, the employee
shall be paid overtime rates in accordance with the award.
24.5 Bereavement
Leave
24.5.1 Paid
Leave Entitlement
(a) An employee
other than a casual employee shall be entitled to up to two days bereavement
leave without deduction of pay on each occasion of the death of a person
prescribed in 24.5.3 below.
(b) For a regular
part-time employee, a "day" for the purposes of this paragraph will
be reckoned by dividing the total number of hours worked by the employee in the
four week period immediately prior to the employee taking bereavement leave by
the number of days worked by the employee in the four week period.
24.5.2 The
employee must notify the employer as soon as practicable of the intention to
take bereavement leave and will, if required by the employer, provide to the
satisfaction of the employer proof of death.
24.5.3 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 in 24.2.3, provided that for the
purpose of bereavement leave, the employee need not have been responsible for
the care of the person concerned.
24.5.4 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.
24.5.5 Bereavement
leave may be taken in conjunction with other leave available under subclause
18.11 of clause 18, Hours of Work, subclause 23.3 of clause 23, Annual Leave,
and subclauses 24.2, 24.3 and 24.4 of this clause. In determining such a request, the employer
will give consideration to the circumstances of the employee and the reasonable
operational requirements of the business.
24.5.6 Bereavement
entitlements for casual employees
24.5.6.1 Subject
to the evidentiary and notice requirements in 24.5.2 casual employees are
entitled to not be available to attend work, or to leave work upon the death in
Australia of a person prescribed in subclause 24.2.3(b) of clause 24, Personal
Leave.
24.5.6.2 The
employer and the employee shall agree on the period for which the employee will
be entitled to not be available to attend work. In the absence of agreement,
the employee is entitled to not be available to attend work for up to 48 hours
(i.e. two days) per occasion. The casual employee is not entitled to any
payment for the period of non-attendance.
24.5.6.3 An
employer must not fail to re-engage a casual employee because the employee
accessed the entitlements provided for in this clause. The rights of an
employer to engage or not engage a casual employee are otherwise not affected.
24.6 The provisions
of this clause will have no application to employees of bodies established by
the Catholic Church to propagate religion.
25. Parental Leave
(1) Refer to the Industrial
Relations Act 1996 (NSW). The
following provisions shall also apply in addition to those set out in the Industrial
Relations Act 1996 (NSW).
(2) An employer
must not fail to re-engage a regular casual employee (see section 53(2) of the
Act) because:
(a) the employee
or employee's spouse is pregnant; or
(b) the employee
is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and
re-engagement of casual employees are not affected, other than in accordance
with this clause.
(3) Right to
request
(a) An employee
entitled to parental leave may request the employer to allow the employee:
(i) to extend the
period of simultaneous unpaid parental leave use up to a maximum of eight
weeks;
(ii) to extend the
period of unpaid parental leave for a further continuous period of leave not
exceeding 12 months;
(iii) to return
from a period of parental leave on a part-time basis until the child reaches
school age;
to assist the employee in reconciling work and parental
responsibilities.
(b) The employer
shall consider the request having regard to the employee's circumstances and,
provided the request is genuinely based on the employee's parental
responsibilities, may only refuse the request on reasonable grounds related to
the effect on the workplace or the employer's business. Such grounds might include cost, lack of
adequate replacement staff, loss of efficiency and the impact on customer
service.
(c) Employee's
request and the employer's decision to be in writing
The employee's request and the employer's decision made
under 3(a)(ii) and 3(a)(iii) must be recorded in writing.
(d) Request to
return to work part-time
Where an employee wishes to make a request under
3(a)(iii), such a request must be made as soon as possible but no less than
seven weeks prior to the date upon which the employee is due to return to work
from parental leave.
(4) Communication
during parental leave
(a) Where an
employee is on parental leave and a definite decision has been made to
introduce significant change at the workplace, the employer shall take
reasonable steps to:
(i) make
information available in relation to any significant effect the change will
have on the status or responsibility level of the position the employee held
before commencing parental leave; and
(ii) provide an
opportunity for the employee to discuss any significant effect the change will have
on the status or responsibility level of the position the employee held before
commencing parental leave.
(b) The employee
shall take reasonable steps to inform the employer about any significant matter
that will affect the employee's decision regarding the duration of parental
leave to be taken, whether the employee intends to return to work and whether
the employee intends to request to return to work on a part-time basis.
(c) The employee
shall also notify the employer of changes of address or other contact details
which might affect the employer's capacity to comply with paragraph (a).
26. Jury Service
26.1 A full-time or
regular part-time employee required to attend for jury service during their
ordinary working hours shall be reimbursed by the employer an amount equal to
the difference between the amount paid in respect of their attendance for such
jury service and the amount of ordinary wage they would have received Monday to
Friday in respect of the ordinary time they would have worked had they not been
on jury service.
26.2 An employee
shall notify their employer as soon as possible of the date upon which they are
required to attend for jury service.
26.3 Further the
employee shall give their employer proof of their attendance, the duration of
such attendance and the amount in respect of such jury service.
27. Public Holidays
27.1 Prescribed
Public Holidays
27.1.1 Employees
other than casuals shall be entitled to the following holidays without loss of
pay: New Years Day, Australia Day, Good Friday, Easter Saturday, Easter Monday,
Anzac Day, Queens Birthday, Labour Day, Union Picnic Day, Christmas Day and
Boxing Day, or such other day as is generally observed in the locality as a
substitute for any of the said days respectively.
27.1.2 In
respect to Christmas Day and Boxing Day if either day falls on a Saturday or
Sunday and an employee is required to work on such day or days then the day or
days shall be treated as the public holiday and day substituted shall be paid
at the rate that would otherwise be paid on 25 and/or 26 December.
27.2 Provided that
when an employee is absent from his or her employment only on one working day
or part of a day before or after a holiday, except on account of illness or
other legitimate reason, he or she shall not suffer loss of payment for more
than one day of the holidays.
27.3 Payment for work
on a public holiday
27.3.1 Subject
to 27.6, all time worked by a full-time employee on a holiday herein prescribed
shall be paid for at the rate of double time and one-half for the hours worked,
with a minimum of four hours additional pay.
Alternatively, such employees who work on a prescribed holiday, may, by
agreement, perform such work at time and one-half the ordinary Monday to Friday
rate, provided that the equivalent of the time worked is also added to the
employee’s annual leave or one day in lieu of such public holiday shall be
allowed to the employee during the week in which such holiday falls. Provided that such holiday may be allowed to
employees within 28 days of such holidays falling due.
27.3.2 Casual
employees working on a public holiday prescribed by this clause, shall be paid
according to the provisions of clauses 8.2.2(c) and 8.2.2(e) of this Award.
27.3.3 Regular
part-time employees required to work on a public holiday prescribed by this
clause shall be paid (at the rate of double time and a half for all time
worked) according to the provisions of clauses 8.3.4, 8.3.5 and 8.3.6 of this
Award.
27.4 Additional Public
Holidays
Where in a State or Territory or locality within a
State or Territory an additional public holiday (other than Easter Saturday) is
proclaimed or gazetted by the authority of the Commonwealth Government or of a
State or Territory government and such proclaimed or gazetted holiday is to be
observed generally by persons throughout that State or Territory or a locality
thereof, other than by those covered by Federal Awards, or when such a
proclaimed or gazetted day is, by any required judicial or administrative
order, to be so observed, then such day shall be deemed to be a holiday for the
purposes of this Award, for the employees covered by this Award who are
employed in the State, Territory or locality in respect of which the holiday
has been proclaimed or ordered as required.
27.5 Rostered Day Off
Coinciding With a Holiday -
27.5.1 Where
an full time employee's rostered day or days off coincide(s) with a holiday
prescribed in this Award, the holiday shall not be a holiday for such employee
and the holiday shall be substituted in one of the methods following:
(a) one day with
pay added to the annual leave;
(b) payment of one
day's pay shall be made to the employee on the next succeeding pay day;
(c) such holiday
may be allowed off with pay to the employee within 28 days after such holiday
falls;
NOTE: one of the above methods must be mutually agreed
upon by the employee and the employer. Failing such agreement the provision
prescribed in 27.5.1(a) hereof shall apply.
27.5.2 A
regular part-time employee (as defined in clause 8.3) is to be entitled to the
public holidays listed in clause 27.1 without loss of pay if those public
holidays fall on days the employee would normally work in accordance with
clause 8.3.
27.5.3 An
employer must not alter an employee’s roster on any occasion so as to avoid any
of the provisions of this clause. Where a roster is altered so as to avoid or
reduce payment due or the benefit applicable under this clause, the employee
must be paid for such holiday/s as if the roster had not been changed.
27.5.4 Despite
27.5.2, a regular part-time employee who was employed on or before 12 August
2005 and who works an average of five days per week must not be disadvantaged
while the employee continues in employment as a regular part-time employee with
the same employer by the fact that a prescribed holiday falls upon a day when
the employee would not be working. The compensation for such employee will be
that set out in paragraph 27.5.1 above.
27.6 Substitution of
Days
27.6.1 An
employer and a majority of employees in a workplace may, subject to the
following conditions, agree to substitute another day for any prescribed in
this clause.
27.6.2 If
the employer intends to seek agreement on substituting a day or days and the
union has members at the particular workplace then the employer must inform the
union of its intention and provide the union with an opportunity to participate
in negotiations relating to substitution.
27.6.3 After
the employer and a majority of employees have agreed to a substitute day, the
agreement must be recorded in writing and made available to every affected
employee.
27.6.4 The
employer must record substitution day arrangements in the time and wages
records kept pursuant to Division 2 of Part 4 of the Industrial Relations
(General) Regulations.
27.6.5 Any
disputes in relation to the practical application of this provision may be
dealt with in accordance with Clause 6.
28. National Training
Wage
The parties to this award shall observe the terms of
the National Training Wage Award 1994 as amended, as though bound by clause 3
of that Award.
29. Work Experience
The provisions of this Award shall not apply to high or
secondary school students whilst undergoing work experience with the written approval
of a school career co-ordinator or similar school's officers.
30. Accident Pay
See Workplace Injury Management and Workers
Compensation Act 1998.
31. Posting of Award
A copy of this Award, as varied from time to time,
shall be maintained in each establishment of an employer and shall be available
for inspection at any time by an employee covered by this Award.
32. Leave for
Consultation Meetings
Each employer must allow his/her employers to attend meetings
to discuss industrial matters without loss of ordinary pay provided the
following conditions are observed:
32.1 At least
fourteen days' notice of such meeting is given to the employer.
32.2 The period of
the meeting is no greater than three hours, with employees returning to duty by
5.00pm if so rostered.
32.3 The employer is
only obliged to pay wages for the period of the meeting if the employer is in
receipt of satisfactory evidence of the employee’s attendance at the meeting.
32.4 Such consultation
meetings are to be held on either a Monday or Tuesday, not being a week in
which a public holiday occurs.
32.5 The employer is
only obliged to pay wages for the period that the employee was rostered for
duty.
32.6 The employer is
not obliged to pay wages for more than one such meeting in any calendar year.
33. Basis of Award
This award is made in relation to the award of the
Australian Industrial Relations Commission known as the Motels, Accommodation
and Resorts Award 1998.
34. Anti-Discrimination
34.1 It is the
intention of the parties bound by this award to seek to achieve the object 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.
34.2 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. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award which, by its terms or operation, has a direct or indirect
discriminatory effect.
34.3 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.
34.4 Nothing in this
clause is to be taken to affect:
34.4.1 any
conduct or act which is specifically exempted from anti-discrimination
legislation;
34.4.2 offering
or providing junior rates of pay to persons under 21 years of age;
34.4.3 any
act or practice of a body established to propagate religion which is exempted
under section 56(d) of the Anti-Discrimination Act 1977;
34.4.4 a party
to this award from pursuing matters of unlawful discrimination in any State or
Federal jurisdiction.
34.5 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.
Notes
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d)
of the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects ... any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion."
35. Union Dues
(i) The employer
shall deduct Union membership fees (not including fines or levies) from the pay
of any employee, provided that:
(a) the employee
has authorised the employer to make such deductions in accordance with
subclause (ii) herein;
(b) the Union
shall advise the employer of the amount to be deducted for each pay period
applying at the employer’s workplace and any changes to that amount;
(c) deduction of
Union membership fees shall only occur in each pay period in which payment has
or is to be made to an employee; and
(d) there shall be
no requirement to make deductions for casual employees with less than two
months’ service (continuous or otherwise).
(ii) The
employee’s authorisation shall be in writing and shall authorise deduction of
an amount of Union fees (including any variation in that fee effected in
accordance with the Union’s rules) that the Union advises the employer to
deduct. Where the employee passes any
such written authorisation to the Union, the Union shall not pass the written
authorisation on to the employer without first obtaining the employee’s consent
to do so. Such consent may form part of
the written authorisation.
(iii) Monies so
deducted from employees’ pay shall be remitted to the Union on either a weekly,
fortnightly, monthly or quarterly basis at the employer’s election, together
with all necessary information to enable the reconciliation and crediting of
subscriptions to employees’ membership accounts, provided that:
(a) where the
employer has elected to remit on a weekly or fortnightly basis, the employer shall
be entitled to retain up to five per cent of the monies deducted; and
(b) where the
employer has elected to remit on a monthly or quarterly basis, the employer
shall be entitled to retain up to 2.5 per cent of the monies deducted.
(iv) Where the employee
has already authorised the deduction of Union membership fees in writing from
his or her pay prior to this clause taking effect, nothing in this clause shall
be read as requiring the employee to make a fresh authorisation in order for
such deductions to commence or continue.
(v) The Union
shall advise the employer of any change to the amount of membership fees made
under its rules, provided that this does not occur more than once in any
calendar year. Such advice shall be in
the form of a schedule of fees to be deducted specifying either weekly,
fortnightly, monthly or quarterly as the case may be. The Union shall give the employer a minimum
of two months’ notice of any such change.
(vi) An employee
may at any time revoke in writing an authorisation to the employer to make
payroll deductions of Union membership fees.
(vii) Where an
employee who is a member of the Union and who has authorised the employer to
make payroll deductions of Union membership fees resigns his or her membership
of the Union in accordance with the rules of the Union, the Union shall inform
the employee in writing of the need to revoke the authorisation to the employer
in order for payroll deductions of Union membership fees to cease.
(viii) This clause
shall take effect:
(a) In the case of
employers who currently deduct Union membership fees, or whose payroll
facilities are carried out by way of an outsourcing arrangement, or whose
payroll calculations are made through the use of computerised means, from the
beginning of the first pay period to commence on or after 1 February 2005;
(b) In the case of
employers who do not fall with subparagraph (i) above, but who currently make
deductions, other than Union membership fee deductions or mandatory deductions
(such as taxation instalments or superannuation contributions) from employees’
pay, or have in place facilities to make such deductions, from the beginning of
the first pay period to commence on or after 1 May 2005;
(c) For all other
employers, from the beginning of the first pay period to commence on or after 1
August 2005.
36. Leave Reserved
Leave is reserved for any party to revisit the
provisions of the award to consider what amendments, if any, should be made to the
award as a result of the decisions of the Commission in matter IRC No. 4330 of
2003, application for variation of awards Re: Secure Employment Clause, and
matter IRC No. 7167 of 2003, application for a State Decision pursuant to s51
of the Industrial Relations Act 1996 to address Employment Opportunities.
37. Area, Incidence
and Duration
37.1 This award
rescinds and replaces:
(a) the Motels,
Accommodation and Resorts, &c., (State) Award published 26 May 2000 (315
I.G. 1064), and all variations thereof ;
(b) the Flats,
Residentials &c., (State) Award published 5 January 1983 (228 I.G. 58), and
all variations thereof;
(c) the Flats,
Residentials &c., Redundancy and Technological Change (State) Award
published 9 February 1996 (290 I.G. 628), and all variations thereof; and
(d) the Flats,
Residentials &c., (State) Wages Adjustment Award published 28 February 1997
(296 I.G. 1025), and all variations thereof.
It shall apply to all persons employed in any capacity
whether permanent or casual in or in connection with motor inns or motels,
unlicensed private hotels, serviced apartments, resorts, time share facilities,
health or recreation farms, guest houses, ski lodges, holiday flats/units,
holiday ranches or farms, condominiums, flats (being premises (not being an
hotel licensed to sell spirituous or fermented liquors) where either furnished,
unfurnished or service apartments are let or sub-let to tenants (but does not
include a private house) and residential chambers (being a lodging house or
residential establishment (not being an hotel licensed to sell spirituous or
fermented liquors) where accommodation only is provided) and establishments of
a like nature together with restaurants, function areas, convention centres or
like facilities, ancillary to or part of any of the above whether such
establishments are licensed to serve alcoholic drinks or not and in or in
connection with preparing and serving food, cleaning and attending to the
premises and all other services associated therewith, excluding the County of
Yancowinna and government accommodation houses, and excepting all persons
employed by Lutanda Children's Home Ltd at Camp Toukley, provided further that
Camp Toukley continues to provide the type of services as identified in the
affidavit of John Roberts, dated 11 May 2001, filed in proceedings IRC
2328/2000.
37.2 This award shall
take effect from the beginning of the first pay period to commence on or after
14 May 2001 and shall remain in force for a period of 12 months.
37.3 Unless otherwise
agreed (and recorded in writing in the time and wages record), for each
employee (full-time, part-time, and casual) who was at 24 March, 1999, employed
under the provisions of the 1994 Private Hotels, Motels, Guest Houses &c.,
Employees (State) Award, as varied from time to time, it is a term of this
award that they do not suffer any reduction in wages or salary as a result of
the making of this award. In this
clause, "an overall reduction in wages or salary" means that, when
comparing like work pattern with like work pattern, the gross income of the
employee is less under this award than it would have been under the provisions
of the 1994 Private Hotels, Motels, Guest Houses, &c., Employees (State)
Award immediately prior to 24 March 1999.
This clause shall cease to operate on 23 March 2001.
37.4 Unless otherwise
agreed (and recorded in the time and wages record), no employee (full-time and
part-time) who was at 14 May 2001 employed under the provisions of the Flats,
Residentials &c., (State) Award, as varied from time to time, shall suffer
a reduction in ordinary time earnings as a result of the making of this award.
37.5 The changes made
to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial
Relations Act 1996 and Principle 26 of the Principles for Review of Awards
made by the Industrial Relations Commission of New South Wales on 28 April 1999
(310 I.G. 359) take effect on and from 27 October 2015.
This award remains in force until varied or rescinded,
the period for which it was made already having expired.
J. D. STANTON, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.