MA000009 PR540249 |
FAIR WORK COMMISSION |
DETERMINATION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Luxury Lodges Of Australia Limited and others
(AM2012/22; AM2012/97; AM2012/189; AM2012/204; AM2012/215; AM2012/254)
HOSPITALITY INDUSTRY (GENERAL) AWARD 2010
[MA000009]
Hospitality industry | |
DEPUTY PRESIDENT SAMS |
SYDNEY, 15 AUGUST 2013 |
Applications to vary the Hospitality Industry (General) Award 2010 - 2 yearly review of Modern Awards - review proceeds largely by consent - technical and clarification changes - substantive changes reserved until 4 yearly Award review - changes to part time employment rejected - determination made.
A. Further to my decision issued on 15 August 2013 (Luxury Lodge of Australia Ltd and others [2013] FWC 5736), it is ordered that the Hospitality Industry (General) Award 2010 be varied as follows:
1. By inserting the following definitions in clause 3.1 in alphabetical order:
Managerial Staff (Hotels) means an employee within the Managerial Staff (Hotels) classification level as defined in Schedule D
ordinary hourly rate means the employee’s applicable minimum hourly wage rate in clause 20.1
standard hourly rate means the minimum hourly wage for a level 4 classification (Cook (tradesperson) grade 3) in clause 20.1.
2. By deleting the following sentence from the definition of standard weekly rate appearing in clause 3.1:
Standard hourly rate means the minimum hourly wage for a level 4 classification (Cook (tradesperson) grade 3) in clause 20.1.
3. By renumbering the existing clause 16.2 as clause 16.2(a).
4. By inserting a new clause 16.2(b) as follows:
(b) If an employee gives notice of termination in accordance with clause 16.2(a), the employer may, at its discretion, elect to make a payment in lieu of the employee working for all or part of the notice period. The payment must be equivalent to the amount the employer would have been otherwise required to make pursuant to s.117 of the Act had the employer terminated the employee’s employment.
5. By renaming clause 20.2—Managerial staff—hotels as “20.2—Managerial staff (Hotels)”.
6. By deleting the words “Managerial Staff—hotels” appearing in clause 20.2 and inserting “Managerial Staff (Hotels)”.
7. By deleting clause 20.2(a) in its entirety.
8. By deleting the words “An employee within the Managerial staff—hotels classification level within Schedule D—Classification Definitions who is” and inserting “Employees defined as Managerial Staff (Hotels) who are”.
9. By inserting the following sentence at the end of clause 21.2(a):
A part-time or casual fork-lift driver must be paid an additional allowance, per day, equal to 0.3% of the standard weekly rate, to a maximum of 1.5% of the standard weekly rate per week.
10. By deleting the words “An employee” in clause 21.2(b) and inserting “A full-time employee”.
11. By deleting the words “an allowance” in clause 21.2(b) and inserting “an additional allowance”.
12. By inserting the following sentence at the end of clause 21.2(b):
A part-time or casual employee so appointed must be paid an additional allowance, per day, equal to 0.24% of the standard weekly rate, to a maximum of 1.2% of the standard weekly rate per week.
13. By deleting clause 27—Annualised salary in its entirety and inserting the following:
27.1 Annualised Salary (Employees other than Managerial Staff (Hotels))
This clause applies to employees other than those classified as Managerial Staff (Hotels).
(a) As an alternative to being paid by the week according to clause 20—Minimum wages, by agreement between the employer and the employee, the employer may be pay the employee at a rate equivalent to an annual salary of at least 25% or more above the rate prescribed in clause 20—Minimum wages, times 52 for the work being performed. The employer and the individual employee must genuinely make the agreement without coercion or duress.
(b) An agreement provided for in subclause (a) will:
(i) have regard to the pattern of work in the employee’s occupation, industry or enterprise but must not disadvantage the employee involved; and
(ii) unless the parties otherwise agree, relieve the employer of the requirements under clauses 32—Penalty rates and 33—Overtime (or other award clauses prescribing monetary entitlements, as specified in the agreement) to pay penalty rates and/or overtime (or other specified award-derived monetary entitlements) that the employer would otherwise be obliged to pay in addition to the weekly award wage for the work performed and the hours worked by the employee, provided that the salary paid over a year will be sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations (and other monetary entitlements specified in the agreement) had been complied with.
(c) Provided further in the event of termination of employment prior to completion of a year the salary paid during such period of employment will 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.
(d) An employee being paid according to this clause will be entitled to a minimum of eight days off per four week cycle. If such an employee is required to work on a public holiday, they are entitled to paid time off that is of equal length to the time worked on the public holiday or the equal length of time work to be added to their annual leave entitlement.
(e) Where payment in accordance with this clause is adopted, the employer must keep a daily record of the hours worked by an employee which will show the date and start and finish times of the employee for the day. The record must be countersigned weekly by the employee and must be kept at the place of employment for a period of at least six years.
27.2 Salaries absorption (Managerial Staff (Hotels))
This clause applies to those employees classified as Managerial Staff.
(a) Managerial Staff who are paid a salary of 25% in excess of the minimum annual salary rate of $41,180 per annum (in receipt of a salary of at least $51,475 per annum), will not be entitled to the benefit of the terms and conditions within the following clauses:
(b) An employee being paid according to clause 27.2(a) will be entitled to a minimum of eight days off per four week cycle.
(c) An employee being paid according to clause 27.2(a) who works on a public holiday will be entitled to paid time off that is of equal length to the time worked on the public holiday. This time is to be taken within 28 days of accruing it.
(d) For the purpose of calculating the weekly equivalent of the annual salary rates prescribed by this clause, the divisor of 52 will be used and the resultant amount will be taken to the nearest 10 cents. All calculations required to be made under this award for the purpose of determining hourly amounts payable to an employee will be calculated on the weekly equivalent of the annual salary.
(e) Managerial Staff will be reimbursed for all monies reasonably expended for and on behalf of the employer subject to hotel policy or approval.
27.3 Payment of salaries
In such circumstances and despite clause 26.2, where an employee is being paid in accordance with clause 27.1 or clause 27.2, the employer may elect to pay the employee monthly.
14. By deleting clause 29—Annualised salary in its entirety and inserting the following:
29. Ordinary hours of work (Full-time and part-time employees)
29.1 Full-time employees
(a) The average of 38 hours per week is to be worked in one of the following ways:
(b) 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 29.1(a) and must meet the following conditions:
(i) A minimum of six hours and a maximum of 11 and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals.
(ii) An employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours immediately following.
(iii) No more than eight days of more than 10 hours may be worked in a four week period.
(iv) Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.
(c) In addition to the conditions set out under clause 29.1 (b), where the agreed hours of work arrangement provides for 160 hours per four week period with a rostered day off, the arrangement will be subject to the following:
(i) No employee is to work more than 10 days in a row without a rostered day off.
(ii) Where practicable the rostered day off must be contiguous with an employee’s normal days off.
(iii) Rostered days may be banked, up to a maximum of five days.
(iv) An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.
(v) If a rostered day off falls on a public holiday then, where practicable, the next day is to be taken as the rostered day off.
(vi) The entitlement to a rostered day off on full pay is subject to the following:
(A) each day of paid leave, except annual leave and long service leave, and any public holiday occurring during the four week cycle must be regarded as a day worked for accrual purposes; and
(B) an employee who has not worked a complete four week cycle in order to accrue a rostered day off must be paid a pro rata amount for credits accrued for each day worked in the cycle. The pro rata amount is 24 minutes pay for each eight hour day worked.
(d) In addition to the conditions set out under clause 29.1(b), where the agreed hours of work arrangement provides for 152 hours each four week period, the arrangement will be subject to the following:
(i) No employee is to work more than 10 days in a row without a rostered day off;
(ii) Where an employee works more than 20 days each four week period, the 21st and any subsequent days worked in the four week period must be paid at the rates prescribed in clause 33—Overtime.
29.2 Part-time employees
A part-time employee’s regular pattern of work must meet the following conditions:
(a) A minimum of three hours and a maximum of 11 and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals.
(b) An employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours immediately following.
(c) No more than eight days of more than 10 hours may be worked in a four week period.
(d) Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.
29.3 Catering in remote locations
(a) Notwithstanding clauses 29.1(a) to (d) catering employers servicing clients in remote locations, may schedule work over consecutively recurring cycles followed by consecutive non-working days. Such work cycles will only be altered or introduced by agreement between an employer and the majority of their employees.
(b) The total ordinary hours of work during a cycle will not exceed 40 hours multiplied by the number of working and non-working weeks in the cycle.
(c) Overtime rates will be paid for any time in excess of eight hours per day or in excess of the total ordinary hours prescribed in clause 29.3(a).
(d) Wages may be paid according to a weekly average of the ordinary hours worked even though more or less than 40 ordinary hours may be worked in any particular week of the work cycle.
(e) An employee whose hours of duty are worked in accordance with this clause will accrue an entitlement to paid accrued days off in accordance with the provisions of clause 29.1(c).
(f) An employee will have no entitlement to payment for the non-working days.
29.4 Make-up time
(a) Make-up time means an arrangement under which an employee takes time off during their ordinary hours of work and makes up that time later. The employer and a majority of employees in a workplace may agree to introduce make-up time subject to the following conditions:
(i) An employer who intends to introduce make-up time will consult with its employees and their representatives.
(ii) After the employer and a majority of employees have agreed to introduce make-up time an employee may elect, with the consent of their employer, to work make-up time.
(b) Make-up time arrangements must comply with the conditions set out in clauses 31—Breaks and 32—Penalty Rates.
(c) The employer must record make-up time arrangements in the time and wages records.
15. By deleting clause 30.1 and inserting the following:
30.1 A roster for full-time and part-time employees must be prepared by the employer and must be posted in a conspicuous place accessible to the employees concerned indicating:
(a) The name of each employee concerned and their starting and finishing times; and
(b) A minimum 10 hour break between the finish of ordinary hours on one day and the commencement of ordinary hours on the following day. In the case of changeover of rosters, eight hours will be substituted for 10 hours.
16. By deleting clause 31—Breaks in its entirety and inserting the following:
31—Breaks
31.1 Breaks
An employee (including a casual employee) who is required to work a shift of more than five hours and up to six hours may elect to take an unpaid meal break of up to 30 minutes during the shift and the employer shall not unreasonably refuse the request.
31.2 Longer shifts
(a) If the employee is required to work a shift of more than six hours and up to eight hours, the employee is entitled to an unpaid meal break of no less than 30 minutes. The unpaid break may be taken no earlier than two hours after starting work and no later than six hours of starting work.
(b) If the employee is required to work a shift of more than eight hours and up to 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and an additional 20 minute paid break (which may be taken as two 10 minute paid breaks).
The unpaid break may be taken no earlier than 2 hours after starting work and no later than six hours after starting work. Breaks should be spread evenly across the shift.
(c) If the employee is required to work a shift exceeding 10 hours, the employee is entitled to an unpaid break of no less than 30 minutes and two 20 minute paid breaks. The unpaid break may be taken no earlier than two hours after starting work and no later than 6 hours after starting work. Breaks should be spread evenly across the shift.
31.3 Request for unpaid meal break
(a) Where an employee elects to take an unpaid break, the request must be made in writing no later than at the commencement of a shift and the employer shall not unreasonably refuse the request.
(b) The written request will apply to all shifts undertaken by the employee of more than five hours, unless otherwise agreed between the employee and employer. This arrangement may be reviewed at any time.
31.4 Break not given
For a shift of more than six hours, if the employer does not release an employee for an unpaid meal break the employee shall be paid at the rate of 50% of the ordinary hourly rate extra for each hour or part of an hour from six hours after the employee started work until the employer gives the employee the unpaid meal break, or until the shift ends.
31.5 Entitlement to additional breaks
(a) If the employer requires an employee to work more than five continuous hours after an unpaid break, the employer must give the employee an additional 20 minute paid break.
(b) If the employer requires an employee to work more than two hours’ overtime after the employee completes his or her rostered hours, the employer must give the employee an additional 20 paid break.
17. By inserting the following sentence at the end of clause 32.2(a):
A casual employee working on a public holiday will be paid for a minimum of two hours’ work.
18. By deleting the words “at their ordinary rates” appearing in clause 32.2(b) and inserting “at their applicable ordinary hourly rate”.
19. By deleting clause 32.2(c) and inserting the following:
(c) An employee other than a casual working on Christmas Day when it falls on a weekend, and is not prescribed as a public holiday under the NES will be paid an additional loading of 50% of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.
20. By renaming clause D.2.9—Managerial staff—hotels as D.2.9—Managerial staff (Hotels).
B. This determination comes into operation on the first full pay period on or after 15 August 2013.
DEPUTY PRESIDENT
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