AP789529CRV - Metal, Engineering and Associated Industries Award 1998
Summary
This clause describes the various categories of employment under this award.
4.2.1(a) An employer may initially engage a full-time or part-time employee for a period of probationary employment for the purpose of determining the employee's suitability for ongoing employment. The employee must be advised in advance that the employment is probationary and of the duration of the probation which can be up to but not exceed three months.
4.2.1(b) A probationary employee is for all purposes of the award a full-time or part-time employee.
4.2.1(c) Probationary employment forms part of an employee's period of continuous service for all purposes of the award, except where otherwise specified in this award.
Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in the award.
[Pt I:Pt 4:4.2.3 substituted by PR901028 ppc 01Mar01 for Part I (Note: By way of clarification, for the purposes of clause 4.2.3, service under this Award prior to June 2001 shall be taken into account); varied by PR903178 ppc 16Apr01 for Parts II, III, V and VI]
4.2.3(a) A casual employee is to be one engaged and paid as such. A casual employee for working ordinary time shall be paid an hourly rate calculated on the basis of one thirty-eighth of the weekly award wage prescribed in clause 5.1 for the work being performed plus a casual loading of 25 per cent. The loading constitutes part of the casual employee’s all purpose rate.
[Pt I:Pt 4:4.2.3(b) inserted by PR901028 ppc 01Jun01 for Part I (Note: In respect of a casual employee who, as at 1 June 2001, has already reached the period of six months set out in clause 4.2.3(b)(i), the reference in clause 4.2.3(b)(ii) to “within four weeks of the employee having attained such period of six months” shall be read as “by 29 June 2001”.)]
4.2.3(b)(i) A casual employee, other than an irregular casual employee as defined in clause 4.2.3(f), who has been engaged by a particular employer for a sequence of periods of employment under this Award during a period of six months shall thereafter have the right to elect to have his or her contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.
4.2.3(b)(ii) Every employer of such an employee shall give the employee notice in writing of the provisions of this clause within four weeks of the employee having attained such period of six months.
The employee retains his or her right of election under this clause if the employer fails to comply with this paragraph.
[Pt I:Pt 4:4.2.3(b)(iii) varied by PR903178 from 04Apr01]
4.2.3(b)(iii) Any such casual employee who does not within four weeks of receiving written notice elect to convert his or her contract of employment to a full-time employment or a part-time employment will be deemed to have elected against any such conversion.
[Pt I:Pt 4:4.2.3(b)(iv) varied by PR903178 from 04Apr01]
4.2.3(b)(iv) Any casual employee who has a right to elect under clause 4.2.3(b)(i), upon receiving notice under clause 4.2.3(b)(ii) or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that he or she seeks to elect to convert his or her contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer shall consent to or refuse the election but shall not unreasonably so refuse. Any dispute about a refusal of an election to convert a contract of employment shall be dealt with as far as practicable with expedition through the dispute settlement procedure.
4.2.3(b)(v) Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.
4.2.3(b)(vi) If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with clause 4.2.3(b)(iv), the employer and employee in accordance with this subparagraph, and subject to clause 4.2.3(b)(iv), shall discuss and agree upon:
(1) which form of employment the employee will convert to, that is, full-time or part-time; and
(2) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 4.2.4.
Provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee.
Following such agreement being reached, the employee shall convert to full-time or part-time employment.
Where, in accordance with clause 4.2.3(b)(iv) an employer refuses an election to convert, the reasons for doing so shall be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
Any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment shall be dealt with as far as practicable with expedition through the dispute settlement procedure.
4.2.3(b)(vii) Subject to clause 2.2.3 of the Award, by agreement between the employer and the majority of the employees in the relevant workplace, or section of it, or with the casual employee concerned, the employer may apply clause (i) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement shall be recorded in the time and wages records. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause (i).
[Pt I:Pt 4:4.2.3(c) inserted by PR901028 ppc 01Mar01 for Part I; PR901028 varied by PR903178 ppc 16Apr01 re Parts II, III, V and VI]
4.2.3(c)(i) An employer when engaging a person for casual employment must inform the employee then and there that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed and the classification level, the actual or likely number of hours required, and the relevant rate of pay.
4.2.3(c)(ii) The employer shall give to a casual employee who has been engaged for one or more periods of employment extending over three or more weeks in any calendar month, and whose employment is or is likely to be ongoing, a note in writing signed by or on behalf of the employer stating:
(1) the name and address of the employer;
(2) if the employee has been engaged by the employer to perform work on hire to another person or company or is regularly engaged to perform work on hire to other persons or companies, a statement to that effect.
(3) the job to be performed and the classification level on which the employee has been or is likely to be engaged;
(4) as far as practicable, the terms of the current engagement, including the likely number and likely pattern of hours required to be worked, the casual rate or other loading applied and the base rate of pay on which the loading is applied;
(5) the contingency on which the engagement expires, or the notice, if any, that will be given to terminate any ongoing employment;
4.2.3(c)(iii) It shall be sufficient compliance with clause (c)(ii) if the employer gives such a note in writing upon or following the first occasion on which the casual employee has been so engaged for a period or periods extending over three or more weeks in any calendar month.
[Pt I:Pt 4:4.2.3(d) inserted by PR901028 ppc 01Mar01 for Part I; PR901028 varied by PR903178 ppc 16Apr01 re Parts II, III, V and VI]
4.2.3(d)(i) On each occasion a casual employee is required to attend work the employee is entitled to payment for a minimum of four hours work.
4.2.3(d)(ii) In order to meet his or her personal circumstances a casual employee may request and the employer may agree to an engagement for less than the minimum of four hours. Any dispute about a refusal to such a request is to be dealt with as far as practicable with expedition through the dispute settlement procedure.
[Pt I:Pt 4:4.2.3(e) inserted by PR901028 from 09Feb01 for Part I (Note: Upon coming into force, Pt I:Pt 4:4.2.3(e) will be read as applying to existing award obligations and entitlements and to any prospective obligation or entitlement which will come into force under this order.); PR903178 from 04Apr01 re Parts II, III, V and VI]
4.2.3(e) An employee must not be engaged and re-engaged to avoid any obligation under this Award.
[Pt I:Pt 4:4.2.3(f) inserted by PR901028 ppc 01Jun01]
4.2.3(f)(i) An “irregular casual employee” is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
4.2.3(f)(ii) The provisions of clause 4.2.3(b) do not apply to irregular casual employees.
4.2.3(g) Caring responsibilities
[Pt I:Pt 4:4.2.3(g) inserted by PR964989 ppc 11Nov05]
4.2.3(g)(i) Subject to the evidentiary and notice requirements in 7.2.8 and 7.2.9 employees are entitled to not be available to attend work, or to leave work:
4.2.3(g)(ii) 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.
4.2.3(g)(iii) 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.
[Pt I:Pt 4:4.2.4(a) substituted by PR901028 ppc 01Mar01 for Part I; PR901028 varied by PR903178 ppc 16Apr01 re Parts II, III, V and VI]
4.2.4(a)(i) An employee may be engaged to work on a part-time basis involving a regular pattern of hours which shall average less than 38 hours per week.
4.2.4(a)(ii) A part-time employee must be engaged for a minimum of three consecutive hours a shift.
4.2.4(a)(iii) In order to meet his or her personal circumstances a part-time employee may request and the employer may agree to an engagement for less than the minimum of three hours. Any dispute about a refusal to such a request is to be dealt with as far as practicable with expedition through the dispute settlement procedure.
4.2.4(b)(i) Before commencing part-time employment, the employee and employer must agree:
4.2.4(b)(i)(1) upon the hours to be worked by the employee, the days upon which they will be worked and the commencing and finishing times for the work;
4.2.4(b)(i)(2) upon the classification applying to the work to be performed in accordance with Clause 5.1 of this award;
4.2.4(b)(ii) Except as otherwise provided in this Award a part-time employee is entitled to be paid for the hours agreed upon in accordance which 4.2.4 (b)(i)(1).
4.2.4(b)(iii) The terms of this agreement may be varied by consent.
4.2.4(b)(iv) The terms of this agreement or any variation to it shall be in writing and retained by the employer. A copy of the agreement and any variation to it shall be provided to the employee by the employer.
4.2.4(c) The terms of this award shall apply pro rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38.
4.2.4(d) Overtime
A part-time employee who is required by the employer to work in excess of the hours agreed upon in accordance with 4.2.4(b) (i) and (iii), shall be paid overtime in accordance with clause 6.4 of this award.
4.2.4(e) Public Holidays
Where the part-time employee's normal paid hours fall on a public holiday prescribed in clause 7.5 and work is not performed by the employee, such employee shall not lose pay for the day. Where the employee works on the holiday, such employee shall be paid in accordance with Clause 7.5 of this award.
4.2.5 Employment for a Specific Period of Time or a Specific Task or Tasks
4.2.5(a) An employee may be engaged on a full time or part time basis for a specific period of time or for specific task/s.
4.2.5(b) The details of the specific period of time or specific task/s shall be set out in writing and retained by the employer. The employer shall provide a copy to the employee.
4.2.5(c) An employee engaged in accordance with 4.2.5(a) is for all purposes of the award a full-time or part-time employee, except where otherwise specified in this award.
4.2.5(d) Service under a contract of employment for a specific period of time or specific task/s shall form part of an employee's period of continuous service, where such employee is engaged as a full-time or part-time employee immediately following such contract of employment.
4.2.6(a) The terms of this award will apply to apprentices, including adult apprentices, except where it is otherwise stated or where special provisions are stated to apply. Apprentices may be engaged in trades or occupations provided for in this clause where declared or recognised by an Apprenticeship Authority.
Subject to appropriate State legislation, an employer shall not employ an unapprenticed junior in a trade or occupation provided for in this clause.
4.2.6(b) Operation of State Laws
In any State in which any statute or regulation relating to apprentices is in force, that statute and regulation will operate in that State provided that the provisions of the statute or regulation are not inconsistent with this award in which case the provisions of this award will apply.
[Pt I:Pt 4:4.2.6(c)(i) substituted by PR955055 ppc 17Jan05]
4.2.6(c)(i) Where it is consistent with State Legislation, an apprentice may be engaged under a Training Agreement or Contract of Training approved by the relevant State or Territory Authority, provided the qualification outcome specified in the Training Agreement or Contract of Training is consistent with that established for the vocation in the training package determined from time to time by the Manufacturing Industry Skills Council (MISC) or its successors and endorsed by the relevant Training Authority or, is consistent with the qualifications established for electrical vocations within the relevant electrical/utilities Training Package endorsed by the National Training Quality Council or its successor.
(ii) Subject to subclause 4.2.6(a) an apprenticeship may be undertaken in any of the following trades:
(1) Engineering Tradesperson (Mechanical)
(2) Engineering Tradesperson (Fabrication)
(3) Engineering Tradesperson (Electrical/Electronic)
[Pt I:Pt 4:4.2.6(c)(ii)(4) varied by PR949880; substituted by PR969026 ppc 06Mar06]
(4) Higher Engineering Tradesperson and Advanced Engineering Tradesperson
(A) The duration and pay for these apprenticeships are dealt with in clause 5.3.1.
(B) The classification on completion of a Higher Engineering Tradesperson apprenticeship will be as a minimum C10. Where the apprentice is offered employment at the completion of their apprenticeship and such employment is in the area of the apprenticeship training, such that they are exercising or will be required to exercise the skills and knowledge gained during their apprenticeship necessary for a C7 level of work they shall be classified at C7.
(C) The training program for each Higher Engineering Tradesperson apprentice is to be consistent with the minimum training requirement for the classification of C7 Special Class Tradesperson, as determined from time to time by the Manufacturing Industry Skills Council (MISC), and as endorsed by the National Training Quality Council. Each apprentice shall also complete the requirements for a trade certificate as defined in 4.2.6(c)(i), as part of the training program leading to the completion of the Certificate IV in Engineering.
(D) The training program for each Advanced Engineering Tradesperson apprentice is to be consistent with the minimum training requirement for the classification of C5 Advanced Engineering Tradesperson, as determined from time to time by the, Manufacturing Industry Skills Council (MISC), and as endorsed by the National Training Quality Council. Each apprentice shall also complete the requirements for a trade certificate as defined in 4.2.6(c)(i), and a Certificate IV in Engineering as part of the training program leading to the completion of the Diploma of Engineering.
4.2.6(d) Apprenticeship Authority shall mean:
[Pt I:Pt 4:4.2.6(d)(i) corrected by Q2704 from 01Jul98]
(i) In New South Wales the Commissioner of Vocational Training appointed under the Industrial and Commercial Training Act 1989, the Vocational Training Board constituted under the Act or the Industrial Relation Commission established by the Industrial Relations Act 1996.
(ii) In Victoria the State Training Board of Victoria.
[Pt I:Pt 4:4.2.6(d)(iii) corrected by Q2704 from 01Jul98]
(iii) In Queensland the State Training Council of the State of Queensland Vocational Education, Training and Employment Commission.
[Pt I:Pt 4:4.2.6(d)(iv) varied by PR955055 ppc 17Jan05]
(iv) In South Australia the Training and Skills Commission.
(v) In Tasmania the Training Authority of Tasmania.
4.2.6(e) In order to undertake trade training in accordance with 4.2.6(c) a person must be a party to a contract of apprenticeship or a training agreement in accordance with the requirements of the Apprenticeship Authority or State legislation. The employer shall provide and/or provide access to, training consistent with the contract or training agreement without loss of pay.
4.2.6(f) An Apprenticeship may be cancelled or suspended only in accordance with the requirements of the contract of apprenticeship or training agreement and the requirements of State legislation and the Apprenticeship Authority.
4.2.6(g) The probationary period of an apprentice shall be as set out in the training agreement or contract of apprenticeship consistent with the requirement of the apprenticeship authority and with State legislation but shall not exceed three months.
[Pt I:Pt 4:4.2.6(h) varied by PR955055 ppc 17Jan05]
4.2.6(h) Apprentices attending technical colleges or schools or registered training organisations or TAFE and presenting reports of satisfactory progress shall be reimbursed all fees paid by them.
4.2.6(i) Except as provided in this clause or where otherwise stated all conditions of employment specified in the Award shall apply to apprentices. Notice of termination and redundancy provisions shall not apply to apprentices. The ordinary hours of employment of apprentices shall not in each enterprise exceed those of the relevant tradesperson.
[Pt I:Pt 4:4.2.6(j) substituted by PR969026 ppc 06Mar06]
4.2.6(j)(i) Apprenticeships under this award are competency based. The actual time taken to complete an apprenticeship will therefore vary depending upon factors such as the intensity of training and the variety of work experience.
4.2.6(j)(ii) The nominal period of the apprenticeship shall be four years however this period may be varied as follows:
4.2.6(j)(iii) Notwithstanding the nominal period, the apprenticeship shall be completed in a shorter period when:
4.2.6(j)(iv) The wage rates applying to apprenticeships based on competency based training progression are dealt with in clauses 5.3.1 and 5.3.2.
4.2.6(k) No apprentices under the age of 18 years shall be required to work overtime or shift work unless they so desire. No apprentice shall, except in emergency, work or be required to work overtime or shift work at times which would prevent their attendance in training consistent with the contract or training agreement.
4.2.6(l) No apprentice shall work under a system of payment by results.
4.2.6(m) Lost Time
Apprentices are required to serve an additional day for each day of absence during each year of their apprenticeship, except in respect of absences due to annual leave or long service leave. The following year of their apprenticeship does not commence until the additional days have been worked. However, any time that has been worked by the apprentice in excess of their ordinary hours shall be credited to the apprentice when calculating the amount of additional time that needs to be worked in the relevant year.
4.2.6(n) Transition Provisions
Any person engaged as an apprentice at the date this award commenced operation shall be deemed to be an apprentice for all purposes of this award until the completion or cancellation of their apprenticeship contract.
4.2.7 School based apprentices
[Pt I:Pt 4:4.2.7 inserted by PR919699 ppc 06Jun02]
Definition
(a) This sub-clause applies to school based apprentices. A school based apprentice is a person who is undertaking an apprenticeship in accordance with this sub-clause while also undertaking a course of secondary education.
Wage rates
(b) The hourly rates for full-time junior and adult apprentices as set out in this award apply to school based apprentices for total hours worked including time deemed to be spent in off-the-job training.
(c) For the purposes of paragraph (b), where a school based apprentice is a full time school student, the time spent in off-the-job training for which the apprentice is paid is deemed to be 25 per cent of the actual hours each week worked on-the-job. The wages paid for training time may be averaged over the semester or year.
Off-the-job training
(d) A school based apprentice is allowed, over the duration of the apprenticeship, the same amount of time to attend off-the-job training as an equivalent full-time apprentice.
(e) For the purposes of this sub-clause, off-the-job training is structured training delivered by a Registered Training Organisation separate from normal work duties or general supervised practice undertaken on-the-job.
Duration of apprenticeship
(f) The duration of the apprenticeship shall be as specified in the training agreement or contract for each apprentice. The period so specified to which the apprentice wage rates apply shall not exceed six years.
Progression through wage structure
(g) School based apprentices progress through the wage scale at the rate of 12 months’ progression for each two years of employment as an apprentice.
(h) 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.
Conversion from a school based to full time apprenticeship
(i) Where an apprentice converts from a school based to a full-time apprenticeship, all time spent as a full-time apprentice counts for the purposes of progression through the wage scale. This progression applies in addition to the progression achieved as a school based apprentice.
Award entitlements
(j) School based apprentices are entitled to pro rata entitlements available to employees covered by this award.
Exemptions
(k) Until further order of the Commission, this sub-clause does not apply to electrical, electronic, or plumbing apprentices (that is to say apprenticeships numbered 3, 5, 6, 14, 15, 32 and 36 in paragraph 4.2.6(c)(i)).
[Pt I:Pt 4:4.2.7 renumbered as 4.2.8 and substituted by PR919699 ppc 06Jun02; varied by PR955055 ppc 17Jan05]
The parties to this Award shall observe the terms of the National Training Wage Award 2000, as amended.
[Pt I:Pt 4:4.2.8 renumbered as 4.2.9 and substituted by PR919699 ppc 06Jun02]
The terms of this award apply to unapprenticed juniors except where otherwise stated or where special provisions are stated to apply.
