H0008 Dec 1533/97 M Print P7500

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Award Simplification Decision

DECEMBER 1997

CONTENTS

 

Page

   

Introduction

1


Consideration of LTU Submissions

3


Approach to the Construction of Section 89A

5


Proposed Hospitality Award

7


Should the Commission Establish Principles?

29


Award Simplification Principles

30


Items 49(7) and (8)

33


Other Issues

43

   

Attachment A - Workplace Relations Act 1996 - Section 89A & Workplace Relations and Other Legislation Amendment Act 1996 Items 46 to 54 of Part 2 of Schedule 5

45


Attachment B - Personal Leave Model Framework Clause

55


Attachment C - Annotated Proposed Clause 31 - Personal Leave

57


Attachment D - Allowable Matters/Incidental and Necessary Table

63


Attachment E - Non-Allowable Matters Table

71


Attachment F - Comparative Table: Current Hospitality Award/Proposed Order

73


H0008 Dec 1533/97 M Print P7500

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996 and


Workplace Relations and Other Legislation Amendment Act 1996


application under s.113 of the Workplace Relations Act 1996


and Item 49 of Schedule 5 of the Workplace Relations


and Other Legislation Amendment Act 1996

Australian Hotels Association


(C No. 90061 of 1997)


THE HOSPITALITY INDUSTRY - ACCOMMODATION,


HOTELS, RESORTS AND GAMING AWARD 1995


(ODN C No. 02782 of 1986)


[Print M7207 [H0008]]

Liquor and accommodation employees
Liquor and accommodation industry
   
JUSTICE GIUDICE, PRESIDENT
  
VICE PRESIDENT ROSS
  
VICE PRESIDENT McINTYRE
  
SENIOR DEPUTY PRESIDENT MACBEAN
  
COMMISSIONER McDONALD

MELBOURNE, 23 DECEMBER 1997

Allowable award matters.

DECISION

INTRODUCTION


This decision is about allowable award matters and related issues. These matters and issues arise, in particular, under s.89A of the Workplace Relations Act 1996 (the WR Act) and Items 46 to 54 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act). We set out the relevant provisions in Attachment A.


The AHA's application was filed on 28 February 1997 and was listed, along with a number of similar applications, before a differently constituted Full Bench on 22 April, 26 June, 23 July and 26 August 1997. In a statement made on 1 September 1997, that Full Bench said:

Following the listing on 8 September 1997, the application was heard by the present Full Bench on 15, 16, 22, 24, 29 and 30 October and 3, 5, 6, 7 and 17 November 1997.

The AHA and the Australian Chamber of Commerce and Industry (the employers) asked us to conduct a thorough review of the Hospitality Award pursuant to Items 49(1), (7) and (8) of Schedule 5 to the WROLA Act. The employers submitted that in addition to these Items the following provisions in particular of the WR Act were relevant to that task:

For the most part the Joint Governments (the Commonwealth, the Territories and all States except New South Wales) supported the employers' approach and the differences between them are not of sufficient significance to be dealt with here. Before turning to the question of whether to review the Hospitality Award, it is desirable to set out in summary form the principal submissions of the LTU. The Australian Council of Trade Unions (ACTU), although not appearing for its affiliates generally, supported these submissions.

CONSIDERATION OF LTU SUBMISSIONS

The LTU submitted that, in considering the application, the Commission should be guided by the principal objects of the WR Act (s.3), the objects of Part VI of it (s.88A) and the requirement that the Commission must ensure that a safety net of fair minimum wages and conditions is established and maintained (s.88B(2)). In that context, it was further submitted that the safety net should not be compromised by the WR Act's emphasis on agreement making. We agree with this submission, although its application in particular cases may raise questions of judgment which can only be answered by a consideration of the surrounding facts.

The LTU devoted a significant part of its submissions to a defence of its role as a union. It was supported in this by the State of New South Wales and the ACTU. This part of its submissions was responsive to submissions by the employers and the Joint Governments that, because of the general scheme of the WR Act and in particular s.89A(2), the Commission should not make provision for union representation. As will be apparent from the manner in which we deal with the relevant clauses in the Hospitality Award, it is our view that a role for unions may be included in awards consistent with s.89A. We reject any suggestion that this section deprives the Commission of the power to make provision for, say, a disputes settling procedure which involves a union.

In relation to several employer proposals to alter test case provisions, the LTU argued that test case standards should not be altered except in proceedings involving a wider range of parties and a greater depth of debate than in this case. In looking at test case provisions, it has only been necessary in this case to be concerned with two matters:

We have not altered entitlements contained in test case provisions other than where provisions are not allowable. We did not understand the Joint Governments or the employers to submit that we should review such entitlements. We have, however, significantly altered some provisions in light of Items 49(7) and (8).
The LTU made detailed submissions concerning the interpretation to be given to Items 49(7) and (8). In summary, it asked us to accept that:

We accept the thrust of these submissions. We also point out that the Commission's task under Item 49 must be carried out in a practical way. Arbitral proceedings, where they are necessary, will focus on the essential issues in contention. With the guidance given by this case, and others which are likely to be decided in the first half of next year, we expect that most arbitrated cases would be relatively short. Later in this decision we give some general guidance in relation to the operation of Items 49(7) and (8).

The LTU submitted that we should take the nature of the industry into account where it is relevant in considering the employers' proposals for change. There was a significant amount of witness evidence, most of it unchallenged, which illustrated some characteristics of the industry covered by the Hospitality Award. The evidence shows, for example, that:

The LTU asked us to conclude, based on the evidence, that women, particularly from non-English speaking backgrounds, have difficulty in negotiating with management. Because women are in an unequal bargaining position they are at a disadvantage if conditions can be altered by individual agreement without Commission supervision. We agree with the proposition that we should take the nature of the industry into account when considering proposals to vary existing award provisions. We have taken the evidence and submissions into account in looking at each of the relevant employer proposals.

The LTU also submitted that workers want the flexibility to accommodate their working time to their family interests in relation to hours of duty, predictability of hours and annual leave. If award provisions are made subject to alteration by agreement with individual employees, the needs of the individual workers will be subordinated to the employer's needs. So, it was submitted, where the operation of award provisions is made subject to agreement, the consent of a majority of employees should be required.

We have considered the possibility that the needs of some employees may be unfairly jeopardized if provisions are subject to alteration by agreement with individual employees. It is not clear, however, that in most cases the needs of particular employees are more likely to be accommodated because the consent of a majority of employees is required. Another matter of significance is the nature of the benefit or entitlement in question. Some award requirements are more amenable to alteration by individual agreement than others. We have taken the LTU's submissions into account in framing our decision.

There is one other matter which requires consideration at this point. It was submitted by the State of New South Wales, supported by the LTU, that there is no urgent need to review awards pursuant to Items 49(7) and (8) because there will be no automatic invalidation on 1 July 1998 of award provisions which do not comply with these Items. Whilst this submission is technically correct, there is a strong argument of convenience in favour of dealing with Items 49(7) and (8) matters at the same time as the award is being reviewed pursuant to Item 49(1). The prospect of two reviews instead of one would only be entertained in compelling circumstances.

APPROACH TO THE CONSTRUCTION OF SECTION 89A


In construing the list of allowable award matters contained in s.89A we have adopted the approach taken by the Full Bench in the Commonwealth Bank of Australia Officers Award Case (CBAOA Case):


The LTU asked us to give a broad interpretation to the matters listed in s.89A(2). It relied upon the principle contained in the dictum of Dixon CJ in Burton v. Honan [(1952) 86 CLR 169 at 177] and pronouncements to the same effect in D'Emden v. Pedder [(1904) 1 CLR 91 at 109-110] and George Hudson Limited v. Australian Timber Workers Union [(1923) 32 CLR 413 at 423]. The principle was aptly summarised by Knox CJ in the last case in this way:


We think that this principle is irrelevant to the construction of s.89A(2). In the first place, s.89A(2) does not contain a grant of power at all, but a limitation on power. Secondly, even if the principle applied, it cannot be used to broaden the scope of the power itself, but only to provide the means to carry it into effect. Each head of power in s.51 of the Constitution describes a category of laws which are within the competence of the Commonwealth Parliament to enact. By contrast, s.89A specifies particular subjects for award regulation. An example illustrates the distinction. The decision in Burton v. Honan [cited above] was concerned with the scope of the power to make laws with respect to trade and commerce with other countries contained in s.51(i) of the Constitution. Specifically, the Court had to consider whether a provision for forfeiture and seizure of goods was a law with respect to trade and commerce. An inquiry of this kind is not analogous to an inquiry as to the breadth of a specified subject (such as annual leave) for the purpose of the exercise of the Commission's arbitral power. Thirdly, the WR Act itself, in s.89A(6), establishes the limits of the category. That subsection makes it clear that the matters specified in s.89A(2) are not to be expanded, but that an award provision which is incidental to one of the matters is permitted, provided it is also necessary for the effective operation of the award. The State of New South Wales, supported by the LTU and the ACTU, submitted that the implied incidental power is not restricted to that which is "necessary or essential" for the effective operation of the express power. It cited authorities (to which we have already referred) concerning the construction of various grants of power in s.51 of the Constitution in support of that proposition. It went on to submit that, even if s.89A(6) is more restrictive than the implied incidental power, the implied incidental power is still available. We do not accept these submissions. We have already pointed out the difference in character between a constitutional grant of power and the specification of allowable award matters. In addition, it is impossible to construe s.89A(6) by resort to an implied power which is inconsistent with the clear words of that subsection. In enacting s.89A(6), the legislature has given direct guidance on the extent to which the Commission may make provisions extending beyond the subject matters specified in s.89A(2). We see no reason to depart from the language of the statute, as explained in the CBAOA Case [cited above], and limited by s.89A(6).

The employers submitted that s.89A(6) should be construed as conferring a power analogous to the power given to a Court to imply a term into a written contract. The principles governing the implication of contractual terms are founded upon the need to complete the agreement between the parties where there is an evident and significant gap in the terms of their contract. The Court puts itself in the position of the contracting parties for this purpose. We do not see how these principles can assist in the application of s.89A(6) which, as we have already said, is in clear terms. Substitution for those clear terms of tests for the implication of contractual terms which would require application in each case has the potential to distract attention from the statutory test and lead the Commission into error in its application.

PROPOSED HOSPITALITY AWARD

Having heard the award parties fully on their proposals and counter proposals and taking into account the submissions of the interveners we have decided:

The draft order is, in part, for the purpose of the award variation contemplated by Item 49(1) and, in part, to facilitate the variation contemplated by Item 49(9). In the case of some award clauses, we have reached the conclusion that variation is necessary to meet one or more of the criteria contained in Items 49(7) and (8), but, on the material before us, we have been unable to redraft the clauses.


We also publish as an attachment a table comparing the current Hospitality Award and our draft order [Attachment F].


The parties will be given the opportunity to comment on the draft order prior to its finalisation. Vice President Ross will convene a conference of the parties on Tuesday, 3 February 1998 for the purpose of providing the parties with such an opportunity. A report will be prepared setting out the views of the respective parties. We will have regard to that report when determining our final order.


A description of the changes and the reasons for them are set out below. We do not, however, specify a number of minor changes; for instance, changing the word "will" to "must". Unless otherwise indicated, the clause numbers referred to are those in the current Hospitality Award.

1. Award Title


The year of the award has been updated to 1998.

1A. Preamble


This has been deleted as it is not an allowable award matter. General statements which describe objectives or philosophies rather than establishing entitlements are, generally speaking, not allowable. Even if such provisions were allowable they would be of no utility because the characteristics of safety net awards are clearly set out in the WR Act itself. We can discern no sound basis for retention of such provisions pursuant to s.89A(6).

2. Arrangement


Consequential changes will be required once the numbering of the substantive clauses is completed.

2A. Anti-discrimination


We propose to adopt the employers' draft but to modify it slightly to comply with Item 49(8)(c). The main change is the insertion of the words "respecting and valuing the diversity of the work force" to conform with s.3(j) of the WR Act. The Human Rights and Equal Opportunity Commission (HREOC) proposed the adoption of a model Work Flexibility clause. We have decided that the purpose of such a clause is met adequately by the proposed anti-discrimination clause and the various enterprise flexibility and facilitative provisions which permit variations in working arrangements to cater for a variety of situations.

3. Definitions


For the most part we have adopted the employers' proposals as to numbering and content. We draw particular attention to the following:

4. Date the Award Starts


This clause should read "This award comes into force on . . . ". We have adopted this formulation in light of the requirements of s.146(1).

5. Where and Who the Award Covers

We have adopted the employers' draft which does not differ substantially from the existing clause. During the s.150A Review Process under the previous Act, the parties adopted the existing heading. Headings in similar form can be found to a number of other clauses. We have decided not to alter these clauses because of their history, but there is no need for the parties to other awards to change to the same form.

6. Who is Bound by this Award?


Neither the employers nor the LTU sought any change of substance. At this stage we are not prepared to include the clause in our draft order. We find the clause confusing and its meaning obscure. This is a matter on which the parties should confer. The LTU sought the relocation into this clause of the transmission of business provision currently found in clause 17.9. We agree in principle with that approach.

7. Application of Appendix A


This also is a clause upon which the parties should confer. It is undesirable that the award should have an appendix which applies to one employer only. It is preferable that such provisions be dealt with in an agreement. We have not adopted the employers' proposal for amendment primarily for that reason but also because of the possibility that the legal effect of the existing clause might be changed to the detriment of the parties to whom the appendix applies.

8. Relationship with Other Awards


Pursuant to Item 49(8)(c), we have adopted the employers' proposal.

8A. History of Award Changes


This clause should be deleted because it is not an allowable award matter. The recording of historical changes in award provisions does not establish entitlements. It is information which is available elsewhere, in any event, should it be needed. We also note that nothing was put to us which could justify the conclusion that the clause is necessary for the effective operation of the award.

9. Enterprise Flexibility Provision


Almost all of the parties submitted that this clause requires substantial amendment. We agree. Nevertheless we have found the revision proposals to be unnecessarily complex and repetitive of the provisions of the WR Act, particularly ss.113A and 113B. We have decided on a much simpler clause which is consistent with Item 49(7)(a). In drafting the new clause we have taken into account:


The main feature of the new clause is its brevity. It does not require that a consultative process be established in every enterprise, but only when the employers or employees wish that to occur. The nature of the process is to be decided based on the needs of the enterprise. There is no requirement for formal decision-making ballots, although the Commission will no doubt ensure that there is a genuine agreement prior to varying the award pursuant to s.113B. We have not set out the detailed requirements of that section, although the heading to the clause will contain a note directing readers to ss.113A and 113B. Section 113B along with s.88A provides sufficient guidance for the Commission and further elaboration in the clause itself would not be useful.

9A. Index of Facilitative Provisions

The employers submitted that this clause was not allowable and that it did not fall within s.89A(6). We do not agree. There is no relevant difference between this index and the index contained in the arrangement clause. The content of the clause will require review on settlement of the orders to ensure it is accurate.

10. Alternative Method of Payment

We have decided to relocate this clause in the payment of wages clause and to amend it slightly as proposed by employers. The LTU sought the inclusion of a new provision requiring the agreement of a majority of employees before the alternative method of payment is introduced. There was some general evidence that might be relevant but no direct evidence of abuse of the existing provisions. We reject that part of the LTU's claim. The employers sought the deletion of the requirement that records be kept of agreements made under the clause. We believe the requirement to keep a record provides a valuable protection for employees and we are not prepared to delete it. In our view the provision is incidental to the award provisions governing pay and allowances and necessary for their effective operation (s.89A(6)).

11. Introduction of Major Change in the Workplace


This clause is standard in many awards of the Commission. It is included in the model order resulting from the Termination Change and Redundancy Case [(1984) 8 IR 34]. The subject matter is consultation with employees in relation to organisational change which is likely to affect their employment. We are unable to characterise the content of the clause by reference to any of the allowable award matters in s.89A(2) and we propose to delete it because it is not allowable. We reject the submission that paragraphs (m) and/or (n) are sufficient. For this purpose we have applied the approach adopted by the Full Bench in the CBAOA Case (cited earlier). Paragraph (m) deals with payment on termination by reason of redundancy, including the level and nature of the payment, while paragraph (n) deals with the notice of termination of employment to be given or received by an employee. Neither of these matters extends to consultation in relation to organisational change which may affect employment. We note that our conclusion is supported by a recent Full Bench decision in Telstra Corporation Limited and the CPSU [Print P3756 at 10].

12. Procedure to Avoid Industrial Disputation

We have decided upon an amalgam of the existing provision and the employer proposal. The amendments are made to comply with the criteria in Items 49(8)(c) and (d). In our draft we have left open the possibility that an employee or employees may choose to be represented by someone other than the LTU. This is consistent with the criterion in Item 49(7)(a).

We point out that we have not dealt with the question of what constitutes "normal" work for the purposes of new clause 11.4 since this will now be adequately addressed in the proposed new clause on Work Organisation (see below). We have also deleted the provision for disputes to go to a Board of Reference. A Board of Reference can be constituted by the Commission on application (s.131). We see no benefit in retaining procedures which to a large extent duplicate the provision already made for reference of unresolved disputes to the Commission.

13. Board of Reference

We have decided to delete the Board of Reference clause. As we noted in discussing the previous clause, s.131 permits the Commission to appoint a Board of Reference on application. The existing clause is general in character and serves no useful purpose. In addition, s.131 seems to contemplate that Boards of Reference will be established to deal with specific issues assigned to them by an award provision. Although we have some doubts about the validity of the existing clause it is not necessary to rule upon that issue. The deletion of the provision will not cause prejudice.
14.1 Sexual Harassment

We have decided to delete clause 14.1.1 as it is not an allowable award matter. HREOC submitted that it should be retained pursuant to s.89A(6). Such a provision might be capable of inclusion in a model anti-discrimination clause but we would be reluctant to alter that clause, other than in the manner indicated above, without a more wide-ranging examination of the implications. For similar reasons we have deleted clause 14.1.2. We point out that remedies are provided in other legislation for sexual harassment where it occurs. Whilst the unlawful dismissal provisions are relevant to the matters contained in both subclauses, sexual harassment is specifically made unlawful by the Sex Discrimination Act 1984 (Commonwealth) and similar legislation in all States and both Territories.

14.2 Cleaning Work

The clause reads as follows:

Clause 14.2.2 does not deal with an allowable award matter. The allocation of work by reference to the sex of the employee does not come within s.89A(2)(a). It is not necessary to deal with the employers' submission that the clause contains a limitation on work which is contrary to s.89A(4)(a), although we doubt the validity of the submission. Since no one argued that the provision was not allowable as such, it is appropriate to indicate our view that the subject matter of the clause is best left to the enterprise consistent with Item 49(7)(a).

14.3 No Deduction for Breakages

The employers sought the deletion of this clause. The LTU sought that it remain. We have concluded that the clause should remain in the award pursuant to s.89A(6) and 89A(2)(c). Whilst there was no full argument on the merits of the provision, the evidence such as it was tends to the conclusion that the clause contains necessary protections for employees. We have made some minor alterations.

15. Stand Down of Employees

The employers proposed an alternative formulation of the clause said to be consistent with the criterion in Item 49(8)(c). It was submitted there was no intention to affect substantive entitlements. We are not convinced, that if the employers' draft were to be adopted, entitlements would not alter. Whilst some features of clause 15.2 are unusual there was no evidence to support their deletion. Further, we note that the existing clause is consistent with the Joint Governments' submissions on the contents of stand down clauses generally. We have decided to retain the existing clause with the minor amendment proposed by the LTU.

16. Types of Employment

16.1 General

We have decided to reformulate this clause in the following way:

16.2 Casual Employment

We have adopted the employers' definition of a casual employee. The existing definition is confusing. It seems to permit an employee to be engaged in 2 different classes of work for an aggregate period in excess of 38 hours per week. We also doubt whether the extended definition serves any useful purpose. It certainly distracts attention from the essential nature of casual employment which we think is best summarised in the clause we propose to adopt.

We have decided to maintain clause 16.2.2 in its existing form, subject to the unresolved penalty rates claim with which McDonald C is currently dealing. We have redrafted clause 16.2.3 to read "Casual employees must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly".

We do not believe that agreement between employer and employee to a change in the incidence of payment of wages should be contingent upon the agreement of the majority of employees. We therefore reject the union's proposal in that regard.

Clause 16.2.5 is inconsistent with the provision of clear employment categories. In addition the use of the word "permanent" may lead to confusion and may have unforeseen implications in relation to the award clause dealing with termination. As well, we have difficulty finding the clause "necessary for the effective operation of the award". The provision distinguishes in an unexplained way between casuals and other employees who might wish to be re-employed. We have deleted clause 16.2.5.

16.3 Part-time Employees

Both parties proposed amendments to accommodate the concept of regular part-time employment: see s.89A(2)(r) and (4) and Item 49(8)(b). In addition the employers sought two changes of substance; (1) the deletion of the limitation on weekly hours for part-time employees, and (2) a reduction in the minimum period of engagement from three hours to two hours. The LTU sought to preserve a minimum payment based on 15 hours work per week. This claim was apparently advanced on the basis that Item 49(6) protects employees from any reduction in entitlements arising from any variation made under Item 49. This issue was not really debated, but it seems that the effect of Item 49(6) is limited to situations in which the Commission varies award rates so that they operate as minimum rates. In the circumstances we have decided that:

16.4 Apprentices

We have reviewed these provisions in light of the parties' proposals and the criteria in Item 49(8)(c) and (d) and have decided on one change of substance and a number of drafting alterations. HREOC expressed concern about the limitations on apprentices under 18 years of age working overtime and shift work. These limitations are in clause 16.4.8. There is no evidence that this provision is causing practical difficulties and we think it should remain. It is clear that the limitation contained in clause 16.4.8(b) is contrary to s.89A(4)(a) and we have deleted it. There was insufficient material before us to conclude that the proficiency payments contained in clauses 16.4.6 and 16.4.7 are obsolete. This is a question of fact which should be resolved prior to the settlement of the order.

16.5 Juniors

The existing limitations on the proportion of junior employees being paid junior rates contained in clause 16.5.3(a)(iii) and (iv) are not allowable, a conclusion supported by the terms of s.89A(4)(a). We have decided to delete those provisions. As for the rest of the clause, we believe that the employers' proposal may lead to confusion in the application of the provisions. We have adopted the substance of the union proposal with some minor changes. HREOC made submissions concerning clause 16.5.3(a)(vi) which provides that no employee under the age of 18 years shall be required to work more than 10 hours in a shift. HREOC proposed that we should seek submissions from the parties as to the need or otherwise for special protection for young employees. If any of the parties to the award thought it appropriate this issue could be addressed in a separate application.

16.6 Supported Wage Employees

We have decided to adopt minor drafting changes agreed by the parties but otherwise to preserve the existing provisions. The employers sought the removal of some of the assessment provisions, but provided no material on the subject. Again, we are reluctant to vary model clause provisions without proper evidence or debate. The employers also asked us to delete clause 16.6.9(d) on the basis that it was not an allowable award matter. This clause is part of the procedure for the assessment of an employee's capacity for the purpose of the supported wage provisions. It provides that an employee shall be provided with appropriate induction and training for the purposes of the assessment. The arguments against clause 16.6.9(d) remaining in the award were not fully developed and proceeded on the basis that training, as such, is a topic quite distinct from any of the matters listed in s.89A(2). Whilst this may be so, it is necessary to look at the work the clause does. In the context of the supported wage provisions, we believe that clause 16.6.9(d) is part of a general scheme for assessing remuneration for employees on a supported wage and is therefore incidental and necessary for the effective operation of the award on that matter.

17. Redundancy

The relevant allowable award matters are in s.89A(2)(m) and (n). Accordingly, a number of the existing provisions are not allowable and must be deleted. Clause 17.1 deals with discussions with employees after a decision has been made which may lead to the termination of employment. For the reasons given above in connection with clause 11, this provision is not allowable. Clause 17.7 requires notice of termination to be given to the Commonwealth Employment Service and similarly is not within the allowable award matters specified in s.89A(2)(m) and (n). Section 170CL of the WR Act provides that, if an employer decides to terminate the employment of 15 or more employees for certain defined reasons, the employer must give the CES written notice of the intended terminations. Clause 17.10.1 is related solely to the operation of clause 17.1.1 and, like that provision, is not allowable. The employers submitted that we should delete clause 17.6 which obliges an employer to give time off to employees in receipt of notice of termination of their employment to permit them to seek other employment. It was contended that the clause is not allowable. We disagree. The clause provides for "leave" within the meaning of the expression "other like forms of leave" in s.89A(2)(g). Clause 17.9 - Transmission of Business, should be moved to the proposed clause 6. The parties agree that clause 17.13 should be deleted on the ground that it is obsolete. We agree. With some significant exceptions, we have adopted the employers' proposals in relation to the remainder of clause 17. We emphasize that, in relation to a number of the changes the employers proposed, we are not satisfied they would, if adopted, have the effect contended for. We refer to Item 49(8)(c). The LTU submitted that, if we decided to delete the requirement for consultation in relation to potential redundancy, we should introduce an additional amount of severance pay for employees whose employment was terminated without any consultation. No substantial argument was put on the merits of this proposal. If the LTU wishes to pursue the matter, it should do so at some subsequent time. In this context we draw attention to the fact that applications for a significant review of the standard Termination, Change and Redundancy provisions are before another Full Bench.

18. Termination of Employment

We have adopted a number of the employers' proposals pursuant to Items 49(8)(c) and (d). In addition, we draw attention to the following changes:

19. Classifications and Wage Rates

There is no change to the table of wage rates. The allowances contained in clause 19.2 have been relocated to the new allowances clause. We have decided to replace clause 19.3 with a new clause dealing with work organisation, broadly in line with the employers' proposal.

20. Penalty Rates

The employers' proposal incorporates reductions in various penalty rates and other payments which are the subject of continuing proceedings before this Full Bench. The draft order contains the existing payments. We have made some minor drafting changes to the clause and, consistent with the views of the parties, have deleted clause 20.1.1 as obsolete.

21. Mixed Functions

Although the employers initially sought deletion of this provision no alteration is now sought. Accordingly the clause is retained in its existing form.

22. Payment of Wages

The employers sought a number of alterations in the existing provisions, only some of which we are prepared to grant. The following matters should be noted:

23. Allowances

The employers sought the deletion of clause 23.2 on the basis that it deals with a matter of detail which is best left to the enterprise. We disagree. It provides an entitlement to a meal allowance where an employee goes to the expense of providing a meal pursuant to a notice to work overtime and the overtime is subsequently cancelled. There was insufficient material to convince us that the provision should be deleted. Several other matters require comment:

24. Broken Periods of Work

This clause is retained with only minor alterations.

25. Superannuation

We are concerned that the existing provision is complex, lengthy and in large part duplicates the terms of the relevant legislation. In this context, we note the slow uptake of the provisions in the September 1994 Superannuation Test Case [Print L5100] as well as the Joint Governments' proposal to refine the clause to three simple provisions. In light of impending legislative change, the award parties have not asked us to vary the award at this stage and the Joint Governments' proposal is of an interim nature. We will not alter the clause on this occasion.

26. Hours of Work

The provisions of clauses 26.1 and 26.2 are unnecessarily complex. They should be simplified so that hours may be set by local agreement between employer and employee, provided certain basic conditions are met. The clause we propose lists a series of options for the arrangement of working hours. These options are already contained in the award. Subject to a number of minimum conditions which must always be observed, agreement on the arrangement of working hours is a matter between the employer and the individual employee. There are two matters that require additional comment. The employers asked us to relax the limitation on the working of broken shifts to a 12 hour spread where the employer and employee agreed. They also sought an amendment of the requirement for a 10 hour break between shifts to make the length of the break negotiable between the employer and individual employee. We reject both of these proposals because of our concern that, in the circumstances of this industry, unfair demands might be made on employees if we made the alterations sought.

27. Breaks

The existing clause is not without complexity. Both parties produced draft provisions designed to clarify the award rather than alter its effect. We prefer the LTU's proposal and we intend to adopt it.

28. Overtime

Both the employers and the LTU proposed a number of minor drafting changes. We have made one change of substance which is to delete the requirement in clause 28.1 that an employer must, if practicable, offer employees the opportunity to work overtime in preference to employing casuals. This is not an allowable award matter. Nor can it be justified pursuant to s.89A(6). Subject to that deletion we have adopted the LTU draft.

29. Roster

Clause 29.1 requires some amendment both for consistency with the types of employment now specified in the new clause 15 - Types of Employment, and in order to make the meaning clearer. Clauses 29.2 and 29.3 prescribe different periods of notice of roster changes depending upon the employee's existing roster. We can see no justification for different periods of notice or for any period of notice greater then seven days.

30. Annual Leave

This clause has been redrafted to minimize duplication and to make it easier to understand. The transmission of business provisions, which also currently appear in the redundancy clause, will be relocated to the clause specifying to whom the award applies. The LTU's proposal to modify the definition of continuous service and to relocate it in the definitions clause is a sensible one and we adopt it.

31. Sick Leave

32. Bereavement Leave

33A. Personal/Carer's Leave

In the Family Leave Test Case decisions [(1994) 57 IR 121 and (1995) 62 IR 48] the Commission decided to introduce a package of measures designed to assist workers in reconciling their employment and family responsibilities. These measures included:

In addition to a personal/carer's leave clause, the Hospitality Award retains separate clauses relating to sick leave and bereavement leave.

There are a number of problems with the current award provisions. In particular:


The only change of substance is to express the aggregated personal leave entitlement in hours. Current clause 33A.1 provides that the amount of personal leave an employee may claim depends on how long he or she has worked for their employer. After the first year of employment, an employee is entitled to "76 hours of sick leave" and two days bereavement leave. We have decided to convert the two days bereavement leave to 16 hours leave. The new aggregated personal leave entitlement is 92 hours.


We note that the employers also proposed that the current bereavement leave entitlement be expressed in hours. The employers submitted that the current two days entitlement should be converted to 15 hours 12 minutes, based on 7 hours 36 minutes per day. We think an 8 hour per day conversion is more appropriate. It recognises that employees may have a working hours arrangement under which they work more than 7 hours 36 minutes per day.

A number of existing provisions have been deleted as they are no longer necessary, e.g. current clauses 33A.7 and 33A.9.


Two provisions have been relocated to proposed clause 26 - Hours of Work:


An annotated proposed clause 31, setting out the origin of each of the provisions, is Attachment C.

We note that we have not adopted submissions by HREOC which sought to change the provisions of the current clause to address issues relating to same sex partners and persons to whom an employee has caring obligations through kinship and cultural ties. These issues were considered, and rejected, in the Personal/Carer's Leave Test Case - Stage 2 decision [(1995) 62 IR 48]. In that decision the Commission said at 57:

33. Parental Leave

This clause is in need of simplification and we have adopted the draft proposed by the Joint Governments and the employers.

HREOC submitted that two aspects of the current parental leave provisions constituted direct pregnancy discrimination, namely:

The parental leave clause we propose addresses the first of the issues identified by HREOC. The provisions enabling an employee to commence maternity leave six weeks before the date of birth are now expressed facilitatively, enabling the employee to continue working within the six week period before the expected date of birth. The relevant proposed clause states:

We also note that the existing parental leave provisions do not apply to all of the respondents to the award. That situation arises from the fact that not all employers bound by the Hospitality Award are parties to a parental leave dispute.

33B. Jury Service

We have made some minor amendments to this clause in an endeavour to make its meaning and effect clearer.

34. Public Holidays

The parties have agreed that, with one exception, this clause should be dealt with by Mahon C in the proceedings which have been before him for some time. The exception is that this Bench should determine whether union picnic day is a public holiday for the purposes of s.89A(2)(i). The employers and the Joint Governments submitted that union picnic days are not gazetted holidays or holidays which the public in general enjoys. Against these considerations is the fact that union picnic days have been included in the public holiday provisions of awards for decades in a large number of industries. There are numerous decisions of the Commission and its predecessor, the Australian Conciliation and Arbitration Commission, in which a union picnic day has been treated as a public holiday. The Full Bench decision which established the test case standard for leave entitlements in Commission awards relating to public holidays included union picnic day as a day which may be included as one of the additional public holidays constituting the minimum entitlement of leave under the public holidays clauses. As we have already indicated, the use of terms in their industrial context is an important element in construing the matters listed in s.89A(2). We have therefore concluded that union picnic day falls within the expression public holidays for the purposes of s.89A(2)(i). In accordance with the agreed position of the parties we will leave Mahon C to deal with other aspects of the public holidays clause in light of our conclusion on the jurisdictional issue. We reject any implication to be derived from HREOC's submissions that the clause discriminates against employees from non-Christian backgrounds.

35. Provision of Employee Accommodation and Meals

This clause permits an employer to make specified maximum deductions from an employee's wages in compensation for the provision of accommodation and meals. The employers contended that the clause was not allowable. The clause serves the useful purpose of preventing employers from indirectly reducing wages by excessive charges for accommodation and meals. On the arguments before us we have concluded that the provision protects award wages and is incidental to the wages clause and necessary for its effective operation. The only exception is clause 35.5 which relates to the heating and cooling of rooms. That part of the clause is not allowable and we propose to delete it. The LTU's proposal for the amendment of clause 35.5 is unnecessary because application for disability allowances can be made on a case by case basis.

36. Travelling Transport and Fares

This clause requires an employer to provide transport and accommodation for the night when an employee is required to work late and to provide transport or the cost of it when an employee is required to start early. The employers submitted that the clause was not allowable. Provision of transport, and accommodation, is an allowance. Both could easily be converted to money amounts. Indeed this is the way in which clause 36.2 currently operates, an allowance being payable to reimburse the employee if transport is not provided when he or she is required to start early. The point is made explicit in the LTU's draft. We have adopted the LTU's proposal and relocated the provision to the allowances clause, a course suggested by the LTU.

37. Training

The employers asked us to delete this clause on the basis that training is not an allowable award matter. The LTU consented to its deletion but on the basis that the provision is obsolete, dealing with a training program which no longer exists. We do not accept that training can never be the subject of award prescription. For example, clauses 37.4 and 37.5 are allowable because they make provision for rates of pay and other benefits which are clearly allowable matters. Nevertheless, we have decided to delete the whole of the clause because it is obsolete. In any case where training is said to be an allowable award matter, careful examination of all of the circumstances will be required.

38. Relationship to the National Training Wage Interim Award 1994

This clause remains.

39. Accident Pay

The employers submitted that this clause was not allowable and an attempt was made to convince us that we should overturn the Commission's recent decision in the CBAOA Case [cited earlier]. In that case, the Commission received a large amount of material and heard detailed submissions before concluding that accident pay falls within s.89A(2)(j). In this case the Joint Governments did not contest the allowability of the provision. On the material and argument before us we are not prepared to reopen the CBAOA Case decision and we confirm, therefore, that accident pay is an allowable award matter.

40. Amenities

We have concluded that this clause is not allowable. In substance it requires an employer to provide certain kinds of premises for its work force. The LTU proposed a redrafted clause but we have decided that proposal is not appropriate. The LTU's draft would have had the effect of removing the right to make any deduction for the provision of accommodation where adequate "heating and cooling devices" are not provided. If an inadequacy exists in particular premises application might be made for an allowance to cover the alleged disability.

41. Clothing, Equipment and Tools

We dealt with this clause when dealing with clause 23 - Allowances.

42. Occupational Health and Safety

As we have already noted a requirement that the employer provide a first-aid kit is not allowable and this clause is deleted.
43. Time and Wages Book Sheets

Although we have rejected the employers' submission that time and wages records are not an allowable matter, we have also indicated that we are prepared to delete award requirements with respect to records because the Regulations require all that the award requires and more.

44. Posting of Award

We have retained the clause because it is incidental and necessary to the effective operation of the award.

45. Preference

The preference clause is not an allowable matter and is in any event contrary to s.94 of the WR Act. We have deleted it.

46. Stop Work Meetings

The employers asked us to delete this provision because it is contrary to s.124(1) of the WR Act. We disagree. If an employee is given leave by the employer to attend a union meeting that leave cannot be described as industrial action. There was no submission that the clause was not allowable. Further, the employers' attack on the clause was based on legal grounds; no argument being put on the merits. This clause has unusual features, as it is already in the award we intend to leave it there.

47. Union Officials

This clause is not an allowable award matter under s.89A(2). Nevertheless the Commission does have power to award some entry provisions pursuant to Division 11A of Part IX of the WR Act, in particular s.285G. Indeed, that section is the only source of the Commission's power to award right of entry provisions. An award made under that section would be quite different from the existing clause. We are not prepared to redraft the clause in the absence of a detailed case, particularly when the WR Act already provides for entry in the Division referred to. We have decided to delete this clause.

Appendix A

Appendix A is retained. We think it appropriate that the parties to the appendix address the apparent discrimination, pointed out to us by HREOC, implicit in clause 58 of the appendix.

Appendix B

Appendix B is deleted because it is obsolete.

SHOULD THE COMMISSION ESTABLISH PRINCIPLES?

In addition to the review of the Hospitality Award, the employers, supported by the Joint Governments, asked us to provide general guidance to assist parties to other awards in the process of applying Items 49 and 51. The employers sought an Interim Statement containing guidelines or principles. The Joint Governments put forward a detailed set of principles, complete with examples, designed to illustrate how the terms used in s.89A(2) are to be applied. There is at least one compelling reason to establish principles. On 1 July 1998, by force of Item 50(1), each award of the Commission ceases to have effect to the extent that it provides for matters other than allowable award matters. On and after that date the Commission is required to review each award, unless a review under Item 49 has already taken place, to ensure that provisions which have ceased to have effect are removed (Item 51). Many hundreds of awards will require review in a timely way. The task will be of historic proportions. Without some guidance there is the potential for the review process to be repetitious and unnecessarily time consuming, both for the parties and for the Commission.

The LTU and the State of New South Wales each advanced reasons why we should not establish principles. In particular, and in this they were supported by the ACTU, they submitted that, once the Hospitality Award was fully reviewed, adequate and appropriate guidance would be available. They submitted that principles should not be established because of the limited factual material before us and the absence of debate on a number of issues. They saw difficulties, for example, in establishing principles relating to paid rates awards when no paid rates award was before us. The Joint Governments, on the other hand, submitted that their proposed principles had been before the Commission at all relevant times and, in the absence of persuasive arguments against them, they ought be established.

We intend to establish principles. In so deciding it is appropriate that we rule on a number of the submissions on the issue.

Firstly, we reject the argument put by the State of New South Wales that our power to establish principles is limited because of the constraints such principles would impose on the jurisdiction of Members of the Commission sitting alone. The purpose of principles is to limit discretion in all but Full Bench cases.

Secondly, we agree with the Joint Governments that the Commission has power pursuant to Item 53 to establish principles relating to allowable award matters and matters arising under Items 49(7) and (8). The only relevant limitation in Item 53 is that the principles must be about varying awards "under this Part". Where the Commission takes steps under Item 49(9) to facilitate variation by reason of the matters in Items 49(7) and (8) it will almost inevitably vary the award.
Thirdly, for the most part we have adopted the approach that it is not appropriate to provide detailed guidance on specific award clauses other than those dealt with in our review of the Hospitality Award. This approach is consistent with that urged upon us by the State of New South Wales and the thrust of the joint submissions of the National Pay Equity Coalition, the Women's Electoral Lobby and the Australian Federation of Business and Professional Women. We agree with the LTU, the State of New South Wales and the ACTU that the proposed new Hospitality Award will be of assistance to the parties to other awards. We have approached the review of the Hospitality Award with a view to the significance of the changes for the award system generally. We would expect, for example, that the conclusions we have reached about s.89A matters would be adopted in other awards.

Finally, we note that we have power to establish principles under Item 53 and that we also have power, pursuant to s.106(1), to establish principles about the making or varying of awards in relation to each of the allowable award matters. In both cases, principles once established are binding on Members sitting alone. We have decided to establish principles under Item 53. The AHA's application in this case was made under both Item 49 and s.113. In the circumstances, it is not necessary for us to formally decide that, in so far as the principles deal with allowable award matters, they are also made under s.106(1). Where Members of the Commission sitting alone are considering applications, not under the WROLA Act, but under Part VI of the WR Act, we expect that all the parts of this decision touching allowable award matters would be followed.

AWARD SIMPLIFICATION PRINCIPLES


We have decided that we will establish principles. The principles will describe the process which will apply pursuant to Items 49 and 50 of Schedule 5 of the WROLA Act. We refer to them as award simplification principles. The term "award simplification" does not appear in the WROLA Act or the WR Act. Nevertheless, the term has gained some currency as descriptive of the exercise required to be undertaken by the Commission pursuant to the WROLA Act. It is no doubt derived from the terms of s.88A(c). It is convenient to adopt the term to describe the range of different considerations the Commission is required to take into account pursuant to Items 49 and 51, s.89A and other sections of the WR Act which may be relevant to a review. We have adopted the framework suggested by the Joint Governments, with a number of significant differences.


We are not prepared to require, as part of an award simplification exercise, that all awards which are not operating as minimum rates awards be converted to minimum rates awards in the manner proposed by the Joint Governments. Whilst this will be an appropriate course where the award is not a paid rates award, we believe there has been insufficient attention given in this case to the treatment of paid rates awards. Items 49(5) and 51(4), which deal with the conversion of awards which are not operating as minimum rates awards, is each discretionary. The legislation contemplates the continuation of paid rates awards in some circumstances. Neither the WROLA Act nor the WR Act in terms requires paid rates awards to be converted. To the contrary, the WR Act permits the variation of such awards and, in specified circumstances, the creation of new ones (ss.170MX and 170MY).


We have retained a number of the discretions conferred on the Commission by the terms of the WROLA Act. We are concerned that, if the principles are unduly prescriptive, a multitude of Full Bench references will result which will significantly hamper the award simplification process as a whole.


The principles are as follows:

1. The Commission will review awards in the following circumstances:

The matters dealt with in Items 49(7) and (8) are substantially replicated in Items 51(6) and (7) and s.143(1B) and (1C). In addition the provisions of Items 54(1) and (2) are substantially replicated in s.143(1D) and (1E). The legislative scheme involves the application of the same approach during the interim period, in the reviews required after the interim period and in the making of awards generally. Because of the central importance of the matters dealt with in Items 49(7) and (8), we now deal with each of those matters specifically.

ITEMS 49(7) AND (8)

Unnecessary Detail


Item 49(7)(a) of the WROLA Act provides that the Commission must, if it considers it appropriate, review the award to determine whether or not it meets the criterion that:


Multiple-employer awards should generally not include provisions which apply only to single enterprises. In the context of the Hospitality Award we have decided that the following provisions prescribe "matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level".

Workplace Efficiency and Productivity


Items 49(7)(b) and (c) of the WROLA Act provide that the Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

The criteria specified in Items 49(7)(b) and (c) have a number of characteristics similar to those identified in the structural efficiency reviews of the 1980s and 1990s.


As noted by the Joint Governments, the use of majority clauses has the potential to be an important factor in facilitating the ease of operation of awards at the workplace and ensuring that awards do not operate to hinder the flexible and effective application of working practices and arrangements.


A majority clause provides that, where employees in an enterprise covered by a particular award are in the minority, the conditions of employment prescribed by the award covering the majority of employees in that enterprise shall apply [see Safety Net Adjustments and Review decision (the September 1994 Review decision) [Print L5300 at 32]]. Majority clauses are one means of addressing the problems associated with multiple-award coverage.


The Commission's consideration of majority clauses is not new. In the April 1991 National Wage Case decision it said:


In the context of our review of the Hospitality Award the following changes are proposed pursuant to Items 49(7)(b) and (c):

Facilitative Provisions


Item 49(8)(a) of the WROLA Act provides that the Commission must determine whether or not the award, where appropriate:


In its September 1994 Review decision the Commission defined facilitative provisions as:


Examples of facilitative provisions in the proposed Hospitality Award are:

Regular Part-time Work


Item 49(8)(b) of the WROLA Act provides that the Commission must review the award to determine that, where appropriate, "it contains provisions enabling the employment of regular part-time employees".


Part-time employment is an allowable award matter [s.89A(2)(r) of the WR Act]. Section 89A(4) provides that the Commission's power to make or vary an award in relation to part-time work does not include:

Section 89A(5) provides that the limitation in s.89A(4)(b) does not prevent the Commission from including in an award:


Proposed clause 15.3.6 provides that an employee who does not meet the definition of a regular part-time employee and who is not a full-time employee must be paid as a casual.

Plain English


Item 49(8)(c) of the WROLA Act provides the Commission must determine whether or not the award "is expressed in plain English and is easy to understand in both structure and content".


In its October 1995 Review decision the Commission dealt with a similar requirement in s.150A(2)(d) of the Industrial Relations Act 1998 (the IR Act) in the following way:


We agree with the Joint Governments' submission that the Commission's "Making Federal Awards Simpler" s.150A resource book provides a useful guide to expressing award provisions in plain English and making them easy to understand. The material set out at Chapter 4 of the resource book includes:

Obsolete Provisions and Updating


Item 49(8)(d) of the WROLA Act provides that the Commission must review the award to determine whether or not it "contains provisions that are obsolete or that need updating".


In its Third Safety Net Adjustment and Section 150A Review decision the Commission said that an obsolete provision was one which was "designed to cover circumstances that are no longer applicable". [Print M5600 at 41]


The question of whether or not a particular award provision is obsolete is a question of fact. In the absence of agreement between the award parties, evidence is required to establish that a provision is obsolete. Clauses 16.4.6 and 16.4.7 of the Hospitality Award deal with proficiency payments for apprentices. The employers submitted that the provisions were obsolete. The LTU disagreed. There was insufficient material before us to conclude that these provisions were obsolete.
In deciding whether an award needs updating, consideration will need to be given to whether it has been varied to incorporate safety net adjustments and relevant test case standards. Examples of test case standards include those relating to:

Where a disagreement exists as to whether a claim involves a test case standard, those asserting that it does must make and justify an application pursuant to s.107 of the IR Act. It will then be a matter for the President to decide whether the claim should be dealt with by a Full Bench.

Trainee Wages and Supported Wage System


Item 49(8)(e) of the WROLA Act provides that the Commission must review the award to determine that, where appropriate, "it provides support to training arrangements through appropriate trainee wages and a supported wage system for people with disabilities". We would expect the Commission's model clause to continue to apply consistent with our comments on clause 16.6 of the Hospitality Award.

Discrimination


Item 49(8)(f) of the WROLA Act provides that the Commission must review the award to ensure that:

Discrimination issues are dealt with elsewhere in this decision.

Section 89A(8) provides:

OTHER ISSUES

A number of Item 49 applications were earlier this year referred to a Full Bench and remain to be dealt with, those applications concern the:

The President will reconstitute the Full Bench in each of these matters and they will be called on for mention and further programming in the new year.

At the time we reserved our decision in this matter, McDonald C had not completed the task of taking evidence in that part of the employers' application which sought a reduction in penalty rates in the Hospitality Award. This Full Bench will sit in Melbourne at 10 a.m. on 23 February 1998 to hear the parties' oral submissions. The AHA is directed to file and serve on the other parties its written submissions on or before 12 February 1998. The LTU is directed to file and serve on the other parties its written submissions on or before 19 February 1998.

BY THE COMMISSION:

PRESIDENT

ATTACHMENT A

WORKPLACE RELATIONS ACT 1996

- SECTION 89A

89A Scope of industrial disputes

(1) For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):

WORKPLACE RELATIONS AND OTHER LEGISLATION

AMENDMENT ACT 1996

- ITEMS 46 TO 54 OF PART 2 OF SCHEDULE 5

Part 2 -Transitional provisions
46 Interpretation

In this Part:

47 Exercise of Commission's powers under this Part

48 Special consent provisions

49 Variation of awards during the interim period

50 Parts of awards cease to have effect at the end of the interim period
52 Corporations not bound by State awards

(1) If:

53 Matters to be dealt with by Full Bench
54 Certain provisions not discriminatory

ATTACHMENT B

PERSONAL LEAVE MODEL FRAMEWORK CLAUSE

1.1 Paid personal leave will be available to an employee when they are absent due to

ANNOTATED PROPOSED CLAUSE 31 - PERSONAL LEAVE

 

Comments


31. PERSONAL LEAVE


31.1 Amount of paid personal leave

31.1.1 Paid personal leave is available to an employee when he or she is absent due:


    • to personal illness or injury (sick leave); or

    • for the purposes of caring for an immediate family or household member who is sick and requires the employee's care and support (carer's leave); or

    • because of bereavement on the death of an immediate family or household member (bereavement leave).

31.1.2 The amount of personal leave to which an employee is entitled depends on how long he or she has worked for the employer and accrues as follows:



        Length of time worked for the Personal


        employer leave


                      (hours)


        Less than 1 month 16


        1 month to less than 3 months 32


        3 months to less than 6 months 48


        6 months to less than 12 months 92


        Each year thereafter 92


31.1.3 In any year unused personal leave accrues by the lesser of:


      31.1.3(a) 76 hours less the number of hours of sick leave taken during the year; or


    31.1.3(b) the balance of the year's unused personal leave.

Model clause 1.1


Model clause 1.2 and current award clauses 33A.1 and 33A.4.1


See current award clauses 31.6 and 32.1


Note: The two day bereavement leave entitlement has been converted to 16 hours.


Model clause 1.2(ii) and see current award clause 33A.3.4


Model clause 1.2(iii) and current award clause 31.8.2

 

Comments


31.1.4 Personal leave may accumulate to a maximum of 760 hours.


31.2 Immediate family or household


31.2.1 The entitlement to carer's or bereavement leave is subject to the person in respect of whom the leave is taken being either:


      31.2.1(a) a member of the employee's immediate family; or


      31.2.1(b) a member of the employee's household.


31.2.2 The term immediate family includes:


      31.2.2(a) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and


      31.2.2(b) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.


31.3 Sick leave


31.3.1 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.


31.3.2 Entitlement


      31.3.2(a) The amount of sick leave an employee is entitled depends on how long he or she has worked for the employer and accrues as follows:

Model clause 2 and current award clause 33A.2


Current award clauses 31.1 and 31.2


Model clause 3.1 and current award clauses 31.6 and 33A.3.1

 

Comments


            Length of time worked Rate of accrual of


            for the employer paid sick leave


            Less than 1 month 0


            1 month to less than 3 months 16


            3 months to less than 6 months 32


            6 months to less than 12 months 76


            Each year thereafter 76


      31.3.2(b) After the first six months of service, an employee must be paid for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours.


      31.3.2(c) Accumulated personal leave may be used for sick leave if the current sick leave entitlement is exhausted.


31.3.3 Employee must give notice


      31.3.3(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.


      31.3.3(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.

      31.3.3(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.


31.3.4 Evidence supporting claim


        The employee must, if required by the employer, establish by production of a medical certificate or statutory declaration, that the employee was unable to work because of injury or personal illness.

Current award clause 31.6


Current award clause 33A.3.3


Model clause 3.3 and current award clause 31.3


Model clause 3.3 and see AHA draft clause 30.3.5

 

Comments

31.3.5 The effect of workers' compensation

        If an employee is receiving workers' compensation payments, he or she is not entitled to sick leave.


31.4 Bereavement leave


31.4.1 Paid leave entitlement

        An employee other than a casual is entitled to use up to two days personal leave as bereavement leave on any occasion on which a member of the employee's immediate family or household in Australia dies.


31.4.2 Unpaid leave entitlement


        Where an employee has exhausted all personal leave entitlements, including accumulated entitlements, he or she is entitled to up to two days unpaid bereavement leave.


31.4.3 Evidence supporting claim

        The employer may require the employee to provide satisfactory evidence of the death of the member of the employee's immediate family or household


31.5 Carer's leave


31.5.1 Paid leave entitlement


        An employee other than a casual is entitled to use up to 40 hours personal leave each year to care for members of his or her immediate family or household who are sick and require care and support. This entitlement is subject to the employee being responsible for the care and support of the person concerned. In normal circumstances an employee is not entitled to take carer's leave where another person has taken leave to care for the same person.

See current award clause 31.5


Model clause 4.1 and current award clauses 32.1 and 33A.4. Also note AHA draft clause 30.4.1


Model clause 4.2 and current award clause 33A.4.4


Model clause 4.3 and AHA draft clause 30.4.2


Model clause 5.1 and current award clauses 33A.5.1 and 33A.5.4

 

Comments


31.5.2 Notice required


      31.5.2(a) Before taking carer's 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.


      31.5.2(b) The notice must include:


    • the name of the person requiring care and support and his or her relationship to the employee;

    • the reasons for taking the leave; and

    • the estimated length of absence.

      31.5.2(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.


31.5.3 Evidence supporting claim


        The employee must, if required by the employer, establish 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.


31.5.4 Unpaid leave


        An employee may take unpaid carer's leave by agreement with the employer.

Model clause 5.2 and current award clause 33A.5.5


Amended to make consistent with notice provision in relation to sick leave


Existing clause 33A.5.3


Model clause 5.3 and current award clause 33A.6


ATTACHMENT D

ALLOWABLE MATTERS/INCIDENTAL AND NECESSARY TABLE


(See Principle 9)


This table refers to provisions in the current and proposed Hospitality Award which we have determined are allowable or incidental and necessary. The determination of whether or not an award provision is incidental to an allowable award matter and necessary for the effective operation of the award may depend on the circumstances in a particular case.

ATTACHMENT E

NON-ALLOWABLE MATTERS TABLE

(See Principle 9)

This table refers to provisions in the current Hospitality Award which we have determined are not allowable. The determination of whether or not an award provision is incidental to an allowable award matter and necessary for the effective operation of the award may depend on the circumstances in a particular case.


[The award clauses referred to are those in the current Hospitality Award]


s.89A(2)(a) Classifications of employees and skill-based career paths


s.89A(2)(k) Loadings for working overtime or for casual work or shift work

s.89A(2)(m) Redundancy pay

Other Matters

ATTACHMENT F

COMPARATIVE TABLE: CURRENT HOSPITALITY AWARD/
PROPOSED ORDER


Current Award

Proposed Order
Comments

PART 1 - APPLICATION AND OPERATION OF AWARD

1. AWARD TITLE

1.1 This award shall be known as The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995.

1. AWARD TITLE

This award shall be known as The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998.

  

1A. PREAMBLE

1A.1 The provisions of this award have been developed over time with the input of the employers, union and employees to develop an industry providing high standards of hospitality service, customer satisfaction and a reasonable and fair standard of wages and conditions for employers and employees in the industry.

[deleted]

Not allowable

2. ARRANGEMENT

2.1 The award is arranged as follows:

      [not reproduced here]

2. ARRANGEMENT

This award is arranged as follows:

    1. Award title
    2. Arrangement
    3. Definitions
    4. Date the award starts
    5. Where and who the award covers
    6. Who is bound by this award?
    7. Application of Appendix A
    8. Relationship with other awards
    9. Enterprise flexibility provisions
    10. Work organisation
    11. Procedure to avoid industrial disputation
    12. No deduction for breakages or cashiering underings
    13. Anti-discrimination
    14. Stand down of employees
    15. Types of employment
    16. Redundancy
    17. Termination of employment
    18. Classifications and wage rates
    19. Penalty rates

  


Current Award

Proposed Order
Comments
 

    20. Mixed functions
    21. Payment of wages
    22. Option for annualised salary
    23. Allowances
    24. Broken periods of work
    25. Superannuation
    26. Hours of work
    27. Breaks
    28. Overtime
    29. Roster
    30. Annual leave
    31. Personal leave
    32. Parental leave
    33. Jury service
    34. Public holidays
    35. Provision of employee accommodation and meals
    36. Relationship to the National Training Wage Interim Award 1994
    37. Accident pay
    38. Posting of award
    39. Leave for consultation meetings
    40. Index of facilitative provisions

Appendix A

  

2A. ANTI-DISCRIMINATION

2A.1 It is the intention of the respondents to this award to achieve the principle object in section 3(g) of the Industrial Relations Act 1988 by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[see clause 13]

Item 49(8)(c) and (d)

2A.2 Accordingly, in fulfilling their obligations under the disputes avoidance and settling clause, the respondents must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects.

    


Current Award

Proposed Order
Comments

2A.3 Nothing in this clause is to be taken to affect:

2A.3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation:

2A.3.2 until 22 June 1997, the payment of different wages for employees who have not reached a particular age;

2A.3.3 an employee, employer or registered organisation, pursuing matters of discrimination in any state or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission; or

2A.3.4 the exemptions in sections 170DF(2) and (3) of the Act.

    

3. DEFINITIONS

3. DEFINITIONS

  

3.1 Food and Beverage

3.1 Food and beverage

Item 49(8)(c) and (d)

3.1.1 Food and beverage attendant grade 1 shall mean an employee who is engaged in any of the following:

              (a) picking up glasses;

              (b) emptying ashtrays;

              (c) general assistance to food and beverage attendants of a higher grade not including service to customers;

              (d) removing food plates;

              (e) setting and/or wiping down tables;

          (f) cleaning and tidying of associated areas.

3.1.1 Food and beverage attendant grade 1 means an employee who is engaged in any of the following:

      3.1.1(a) picking up glasses;

      3.1.1(b) emptying ashtrays;

      3.1.1(c) general assistance to food and beverage attendants of a higher grade not including service to customers;

      3.1.1(d) removing food plates;

      3.1.1(e) setting and/or wiping down tables;

      3.1.1(f) cleaning and tidying of associated areas.

  

3.1.2 Food and beverage attendant grade 2 shall mean an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

3.1.2 Food and beverage attendant grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

 


Current Award

Proposed Order
Comments

      (a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

      (b) assisting in the cellar or bottle department;

      (c) undertaking general waiting duties of both food and/or beverage including cleaning of tables;

      (d) receipt of monies;

      (f) attending a snack bar;

      (g) engaged on delivery duties.

          3.1.2(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

      3.1.2(b) assisting in the cellar or bottle department;

          3.1.2(c) undertaking general waiting duties of both food and/or beverage including cleaning of tables;

    3.1.2(d) receipt of monies;

      3.1.2(f) attending a snack bar;

      3.1.2(g) engaged on delivery duties.

 

3.1.3 Food and beverage attendant grade 3 shall mean an employee who has the appropriate level of training and is engaged in any of the following:

      (a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

      (b) assisting in the cellar or bottle department, where duties could include working up to four hours per day (averaged over the relevant work cycle) in the cellar without supervision;

      (c) undertaking general waiting duties of both food and liquor including cleaning of tables;

      (d) receipt and dispensing of monies;

      (e) engaged on delivery duties; or

      (f) in addition to the tasks performed by a food and beverage attendant grade 2 the employee is also involved in:

        (i) the operation of a mechanical lifting device; or

              (ii) attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal.

3.1.3 Food and beverage attendant grade 3 means an employee who has the appropriate level of training and is engaged in any of the following:

          3.1.3(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;

          3.1.3(b) assisting in the cellar or bottle department, where duties could include working up to four hours per day (averaged over the relevant work cycle) in the cellar without supervision;

          3.1.3(c) undertaking general waiting duties of both food and liquor including cleaning of tables;

          3.1.3(d) receipt and dispensing of monies;

          3.1.3(e) engaged on delivery duties; or

          3.1.3(f) in addition to the tasks performed by a food and beverage attendant grade 2 the employee is also involved in:

                3.1.3(f)(i) the operation of a mechanical lifting device; or

                3.1.3(f)(ii) attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal.

 


Current Award

Proposed Order
Comments

      (g) and/or shall mean an employee who is engaged in any of the following:

                      · full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

                      · mixing a range of sophisticated drinks;

                      · supervising food and beverage attendants of a lower grade;

                      · taking reservations, greeting and seating guests;

                      · training food and beverage attendants of a lower grade.

            3.1.3(g) and/or means an employee who is engaged in any of the following:

                      · full control of a cellar or liquor store (including the receipt, delivery and recording of goods within such an area);

                      · mixing a range of sophisticated drinks;

                      · supervising food and beverage attendants of a lower grade;

                      · taking reservations, greeting and seating guests;

              · training food and beverage attendants of a lower grade.

  

3.1.4 Food and beverage attendant (tradesperson) grade 4 shall mean an employee who has completed an apprenticeship in waiting or who has passed the appropriate trade test and as such carries out specialised skilled duties in a fine dining room or restaurant.

3.1.4 Food and beverage attendant (tradesperson) grade 4 means an employee who has completed an apprenticeship in waiting or who has passed the appropriate trade test and as such carries out specialised skilled duties in a fine dining room or restaurant.

  

3.1.5 Food and beverage supervisor shall mean an employee who has the appropriate level of training including a supervisory course and who has the responsibility for supervision, training and co-ordination of food and beverage staff, or stock control for a bar or series of bars.

3.1.5 Food and beverage supervisor means an employee who has the appropriate level of training including a supervisory course and who has the responsibility for supervision, training and co-ordination of food and beverage staff, or stock control for a bar or series of bars.

  
 

3.1.6 Liquor service employee means a person employed to sell or dispense liquor in bars and/or bottle departments or shops and includes a cellar employee.

  

3.2 Kitchen

3.2 Kitchen

Item 49(8)(c)

3.2.1 Kitchen attendant grade 1 shall mean an employee engaged in any of the following:

      (a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;

      (b) assisting employees who are cooking;

      (c) assembly and preparation of ingredients for cooking; or

3.2.1 Kitchen attendant grade 1 means an employee engaged in any of the following:

          3.2.1(a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;

      3.2.1(b) assisting employees who are cooking;

      3.2.1(c) assembly and preparation of ingredients for cooking; or

 


Current Award

Proposed Order
Comments

      (d) general pantry duties.

3.2.1 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.

    3.2.1(d) general pantry duties.

3.2.2 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.

  

3.2.2 Kitchen attendant grade 3 shall mean an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.

3.2.3 Kitchen attendant grade 3 means an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.

 

3.2.3 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.

3.2.4 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.

  

3.2.4 Cook grade 2 shall mean an employee who has the appropriate level of training and who performs cooking duties including baking, pastry cooking or butchering.

3.2.5 Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties including baking, pastry cooking or butchering.

 

3.2.5 Cook (tradesperson) grade 3 shall mean a "commi chef" or equivalent who has completed an apprenticeship or who has passed the appropriate trade test, and who is engaged in cooking, baking, pastry cooking or butchering duties.

3.2.6 Cook (tradesperson) grade 3 means a "commis chef" or equivalent who has completed an apprenticeship or who has passed the appropriate trade test, and who is engaged in cooking, baking, pastry cooking or butchering duties.

 

3.2.6 Cook (tradesperson) grade 4 shall mean a "demi chef" or equivalent who has completed an apprenticeship or has passed the appropriate trade test and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.

3.2.7 Cook (tradesperson) grade 4 means a "demi chef" or equivalent who has completed an apprenticeship or has passed the appropriate trade test and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.

 

3.2.7 Cook (tradesperson) grade 5 shall mean a "chef de partie" or equivalent who has completed an apprenticeship or has passed the appropriate trade test in cooking, butchering, baking or pastry cooking and has completed additional appropriate training who performs any of the following:

      (a) general and specialised duties including supervision or training of other kitchen staff;

      (b) ordering and stock control; or

3.2.8 Cook (tradesperson) grade 5 means a "chef de partie" or equivalent who has completed an apprenticeship or has passed the appropriate trade test in cooking, butchering, baking or pastry cooking and has completed additional appropriate training who performs any of the following:

    3.2.8(a) general and specialised duties including supervision or training of other kitchen staff;

    3.2.8(b) ordering and stock control; or

 


Current Award

Proposed Order
Comments

      (c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.

    3.2.8(c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.

  

3.3 Guest Service

3.3 Guest service

Item 49(8)(c)

3.3.1 Guest service grade 1 shall mean an employee who performs any of the following:

      (a) laundry and/or linen duties which may include minor repairs to linen or clothing such as buttons, zips, seams, and working with flat materials;

        (b) the collection and delivery of guests personal dry cleaning and laundry, linen and associated materials to and from accommodation areas;

      (c) performs general cleaning duties; or

      (d) parking guest cars.

3.3.1 Guest service grade 1 means an employee who performs any of the following:

    3.3.1(a) laundry and/or linen duties which may include minor repairs to linen or clothing such as buttons, zips, seams, and working with flat materials;

    3.3.1(b) the collection and delivery of guests personal dry cleaning and laundry, linen and associated materials to and from accommodation areas;

    3.3.1(c) performs general cleaning duties; or

    3.3.1(d) parking guest cars.

 

3.3.2 Guest service grade 2 shall mean an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

      (a) servicing accommodation areas and cleaning thereof;

      (b) receiving and assisting guests at the entrance to the establishment;

      (c) driving a passenger vehicle or courtesy bus;

      (d) transferring guests baggage to and from rooms;

      (e) assisting in the dry cleaning process;

      (f) cleaning duties using specialised equipment and chemicals; or

      (g) providing butler services such as food, beverage and personalised guest service.

3.3.2 Guest service grade 2 means an employee who has not achieved the appropriate level of training and who is engaged in any of the following:

    3.3.2(a) servicing accommodation areas and cleaning thereof;

    3.3.2(b) receiving and assisting guests at the entrance to the establishment;

    3.3.2(c) driving a passenger vehicle or courtesy bus;

    3.3.2(d) transferring guests baggage to and from rooms;

    3.3.2(e) assisting in the dry cleaning process;

    3.3.2(f) cleaning duties using specialised equipment and chemicals; or

    3.3.2(g) providing butler services such as food, beverage and personalised guest service.

 


Current Award

Proposed Order
Comments

3.3.3 Guest service grade 3 shall mean an employee who has the appropriate level of training and who is engaged in any of the following:

      (a) supervising guest service employees of a lower grade;

      (b) providing butler services such as food, beverage and personalised guest service;

      (c) major repair of linen and/or clothing including basic tailoring and major alterations and refitting; or

      (d) dry cleaning.

3.3.3 Guest service grade 3 means an employee who has the appropriate level of training and who is engaged in any of the following:

    3.3.3(a) supervising guest service employees of a lower grade;

    3.3.3(b) providing butler services such as food, beverage and personalised guest service;

    3.3.3(c) major repair of linen and/or clothing including basic tailoring and major alterations and refitting; or

    3.3.3(d) dry cleaning.

 

3.3.4 Guest service grade 4 shall mean an employee who has completed an apprenticeship or who has passed the appropriate trade test or otherwise has the appropriate level of training to perform the work of a tradesperson in dry cleaning, tailoring or as a butler.

3.3.4 Guest service grade 4 means an employee who has completed an apprenticeship or who has passed the appropriate trade test or otherwise has the appropriate level of training to perform the work of a tradesperson in dry cleaning, tailoring or as a butler.

  

3.3.5 Guest service supervisor shall mean an employee with the appropriate level of training including a supervisory course, who supervises, trains and co-ordinates the work of employees engaged in a housekeeping department.

3.3.5 Guest service supervisor means an employee with the appropriate level of training including a supervisory course, who supervises, trains and co-ordinates the work of employees engaged in a housekeeping department.

  

3.3.6 Front office grade 1 shall mean an employee who is engaged as an assistant in front office duties including night auditing, telephonist, receptionist, cashier, information services or reservations.

3.3.6 Front office grade 1 means an employee who is engaged as an assistant in front office duties including night auditing, telephonist, receptionist, cashier, information services or reservations.

  

3.3.7 Front office grade 2 shall mean an employee who has the appropriate level of training and is in the front office engaged in telephonist, receptionist, cashier, information services or reservations.

3.3.7 Front office grade 2 means an employee who has the appropriate level of training and is in the front office engaged in telephonist, receptionist, cashier, information services or reservations.

 

3.3.8 Front office grade 3 shall mean an employee who has the appropriate level of training and is in the front office engaged in duties including assisting in training and supervision of front office employees of a lower grade.

3.3.8 Front office grade 3 means an employee who has the appropriate level of training and is in the front office engaged in duties including assisting in training and supervision of front office employees of a lower grade.

 

3.3.9 Front office supervisor shall mean an employee who has the appropriate level of training including a supervisory course and who supervises, trains and co-ordinates the work of front office employees.

3.3.9 Front office supervisor means an employee who has the appropriate level of training including a supervisory course and who supervises, trains and co-ordinates the work of front office employees.

  


Current Award

Proposed Order
Comments

3.4 Administration and general

3.4 Administration

Item 49(8)(c)

3.4.1 Clerical grade 1 shall mean an employee who is required to perform basic clerical and routine office duties such as collating, filing, photocopying, and delivering messages.

3.4.1 Clerical grade 1 means an employee who is required to perform basic clerical and routine office duties such as collating, filing, photocopying, and delivering messages.

 

3.4.2 Clerical grade 2 shall mean an employee who is engaged in general clerical or office duties, such as typing, filing, basic data entry and calculating functions.

3.4.2 Clerical grade 2 means an employee who is engaged in general clerical or office duties, such as typing, filing, basic data entry and calculating functions.

 

3.4.3 Clerical grade 3 shall mean an employee who has the appropriate level of training and who performs any of the following:

        (a) operates adding machines, switchboard, paging system, telex machine, typewriter and calculator;

      (b) uses knowledge of keyboard and function keys to enter and retrieve data through computer terminal;

      (c) copy types at 25 words per minute with 98% accuracy;

      (d) maintains mail register and records;

      (e) maintains established paper-based filing/records systems in accordance with set procedures including creating and indexing new files, distributing files within the organisation as requested, monitoring file locations;

      (f) transcribes information into records, completes forms, takes telephone messages;

      (g) acquires and applies a working knowledge of office or sectional operating procedures and requirements;

      (h) acquires and applies a working knowledge of the organisation's structure and personnel in order to deal with inquiries at first instance, locates appropriate staff in different sections, relays internal information, responds to or redirects inquiries, greets visitors;

      (i) keeps appropriate records;

    3.4.3 Clerical grade 3 means an employee who has the appropriate level of training and who performs any of the following:

    3.4.3(a) operates adding machines, switchboard, paging system, telex machine, typewriter and calculator;

    3.4.3(b) uses knowledge of keyboard and function keys to enter and retrieve data through computer terminal;

    3.4.3(c) copy types at 25 words per minute with 98% accuracy;

    3.4.3(d) maintains mail register and records;

    3.4.3(e) maintains established paper-based filing/records systems in accordance with set procedures including creating and indexing new files, distributing files within the organisation as requested, monitoring file locations;

    3.4.3(f) transcribes information into records, completes forms, takes telephone messages;

          3.4.3(g) acquires and applies a working knowledge of office or sectional operating procedures and requirements;

    3.4.3(h) acquires and applies a working knowledge of the organisation's structure and personnel in order to deal with inquiries at first instance, locates appropriate staff in different sections, relays internal information, responds to or redirects inquiries, greets visitors;

    3.4.3(i) keeps appropriate records;

 


Current Award

Proposed Order
Comments

      (j) sorts, processes and records original source financial documents (e.g. invoices, cheques, correspondence) on a daily basis; maintains and records petty cash; prepares bank deposits and withdrawals and does banking;

      (k) and who has the appropriate level of training and also performs any of the following:

      · operates computerised radio telephone equipment, micro/ personal computer, printing devices attached to personal computer, dictaphone equipment, typewriters;

      · produces documents and correspondence using knowledge of standard formats, touch types at 40 words per minute with 98% accuracy, audio types;

      · uses one or more software application package(s) developed for a micro/personal computer to operate and populate a database, spreadsheet/worksheet to achieve a desired result; graph previously prepared spreadsheet; use simple menu utilities of personal computer;

      · follows standard procedures or template for the preceding functions using existing models/fields of information. Creates, maintains and generates simple reports;

      · uses a central computer resource to an equivalent standard;

      · uses one or more software packages to create, format, edit, proof read, spell check, correct, print and save text documents, e.g. standard correspondence and business documents;

      · takes shorthand notes at 70 wpm and transcribed with 95% accuracy;

          3.4.3(j) sorts, processes and records original source financial documents (e.g. invoices, cheques, correspondence) on a daily basis; maintains and records petty cash; prepares bank deposits and withdrawals and does banking;

          3.4.3(k) and who has the appropriate level of training and also performs any of the following:

      · operates computerised radio telephone equipment, micro/ personal computer, printing devices attached to personal computer, dictaphone equipment, typewriters;

      · produces documents and correspondence using knowledge of standard formats, touch types at 40 words per minute with 98% accuracy, audio types;

      · uses one or more software application package(s) developed for a micro/personal computer to operate and populate a database, spreadsheet/worksheet to achieve a desired result; graph previously prepared spreadsheet; use simple menu utilities of personal computer;

      · follows standard procedures or template for the preceding functions using existing models/fields of information. Creates, maintains and generates simple reports;

      · uses a central computer resource to an equivalent standard;

      · uses one or more software packages to create, format, edit, proof read, spell check, correct, print and save text documents, e.g. standard correspondence and business documents;

      · takes shorthand notes at 70 wpm and transcribed with 95% accuracy;

 


Current Award

Proposed Order
Comments

      · arranges travel bookings and itineraries, makes appointments, screens telephone calls, follows visitor protocol procedures, establishes telephone contact on behalf of executive;

      · applies a working knowledge of the organisation's products/services, functions, locations and clients;

      · responds to and acts upon most internal/external inquiries in own function area;

      · uses and maintains a computer-based record management system to identify, access and extract information from internal sources; maintains circulation, indexing and filing systems for publications, reviews files, closes files, archives files;

      · maintains financial records and journals, collects and prepares time and wage records; prepares accounts queries from debtors; posts transactions to ledger.

      · arranges travel bookings and itineraries, makes appointments, screens telephone calls, follows visitor protocol procedures, establishes telephone contact on behalf of executive;

      · applies a working knowledge of the organisation's products/services, functions, locations and clients;

      · responds to and acts upon most internal/external inquiries in own function area;

      · uses and maintains a computer-based record management system to identify, access and extract information from internal sources; maintains circulation, indexing and filing systems for publications, reviews files, closes files, archives files;

      · maintains financial records and journals, collects and prepares time and wage records; prepares accounts queries from debtors; posts transactions to ledger.

  

3.4.4 Clerical supervisor shall mean an employee who has the appropriate level of training including a supervisory course and who co-ordinates other clerical staff.

3.4.4 Clerical supervisor means an employee who has the appropriate level of training including a supervisory course and who co-ordinates other clerical staff.

 
 

3.5 Security

3.5.1 Doorperson/security officer grade 1 means a person who assists in maintenance of dress standards and good order at an establishment.

 
 

3.5.2 Timekeeper/security officer grade 2 means a person who is responsible for timekeeping of staff, for the security of keys, for the checking in and out of delivery vehicles and/or for the supervision of doorperson/security officer grade 1 personnel.

 
 

3.6 Leisure activities

Item 49(8)(c)

 

3.6.1 Leisure attendant grade 1 means a person who acts as an assistant instructor, pool attendant and/or can be responsible for the setting up, distribution and care of equipment, and the taking of bookings.

 


Current Award

Proposed Order
Comments
 

3.6.2 Leisure attendant grade 2 means a person who has the appropriate level of training and takes classes and/or directs leisure activities such as sporting areas, health clubs and swimming pools.

  
 

3.6.3 Leisure attendant grade 3 means a person who has the appropriate level of training, and who plans and co-ordinates leisure activities for guests and may supervise other leisure attendants.

  
 

3.7 Stores and other activities

Item 49(8)(c)

3.4.5 Storeperson grade 1 shall mean an employee who receives and stores general and perishable goods and cleans the store area.

3.7.1 Storeperson grade 1 means an employee who receives and stores general and perishable goods and cleans the store area.

  

3.4.6 Storeperson grade 2 shall mean an employee who, in addition to the duties for a storeperson grade 1, may also operate mechanical lifting equipment such as a fork-lift and/or who may perform duties of more complex nature.

3.7.2 Storeperson grade 2 means an employee who, in addition to the duties for a storeperson grade 1, may also operate mechanical lifting equipment such as a fork-lift and/or who may perform duties of more complex nature.

  

3.4.7 Storeperson grade 3 shall mean an employee who has the appropriate level of training and who:

      (a) implements quality control techniques and procedures; and

      (b) understands and is responsible for a stores/warehouse area or a large section of such an area; and

      (c) has a highly developed level of interpersonal and communications skills; and

      (d) is able to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction; and

      (e) exercises discretion within the scope of this grade; and

      (f) may exercise skills attained through the successful completion of an appropriate warehousing certificate; and

3.7.3 Storeperson grade 3 means an employee who has the appropriate level of training and who:

      3.7.3(a) implements quality control techniques and procedures; and

      3.7.3(b) understands and is responsible for a stores/warehouse area or a large section of such an area; and

      3.7.3(c) has a highly developed level of interpersonal and communications skills; and

      3.7.3(d) is able to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction; and

      3.7.3(e) exercises discretion within the scope of this grade; and

      3.7.3(f) may exercise skills attained through the successful completion of an appropriate warehousing certificate; and

 


Current Award

Proposed Order
Comments

      (g) may perform indicative tasks at this level such as:

              (i) liaising with management, suppliers and customers with respect to stores operations;

        (ii) detailing and co-ordinating activities of other storepersons and acting in a leading hand capacity for in excess of ten storepersons;

      (h) maintaining control registers including inventory control and being responsible for preparation and reconciliation of regular reports or stock movements, despatches, etc;

      (i) supervises the receipt and delivery of goods, records, outgoing goods, responsible for the contents of a store.

      3.7.3(g) may perform indicative tasks at this level such as:

                    3.7.3(g)(i) liaising with management, suppliers and customers with respect to stores operations;

                      3.7.3(g)(ii) detailing and co-ordinating activities of other storepersons and acting in a leading hand capacity for in excess of ten storepersons;

          3.7.3(h) maintaining control registers including inventory control and being responsible for preparation and reconciliation of regular reports or stock movements, dispatches, etc;

          3.7.3(i) supervises the receipt and delivery of goods, records, outgoing goods, responsible for the contents of a store.

  

3.4.7 Doorperson/security officer grade 1 shall mean a person who assists in maintenance of dress standards and good order at an establishment.

[relocated as 3.5.1]

  

3.4.8 Timekeeper/security officer grade 2 shall mean a person who is responsible for timekeeping of staff, for the security of keys, for the checking in and out of delivery vehicles and/or for the supervision of doorperson/security officer grade 1 personnel.

[relocated as 3.5.2]

  

3.4.9 Handyperson shall mean 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.

    3.7.4 Handyperson 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.

 

3.4.10 Fork-lift driver shall mean an employee who has a recognised fork-lift licence and who is engaged solely on the basis of driving a fork-lift vehicle. For those employees who operate a fork-lift as only part of their duties, either food and beverage grade 3 or storeperson grade 2 are applicable.

    3.7.5 Fork-lift driver means an employee who has a recognised fork-lift licence and who is engaged solely on the basis of driving a fork-lift vehicle. For those employees who operate a fork-lift as only part of their duties, either food and beverage grade 3 or storeperson grade 2 are applicable.

 

3.4.11 Persons not otherwise provided for shall mean any employee for which no specific classification exists in this award.

    3.7.6 Persons not otherwise provided for means any employee for which no specific classification exists in this award.

  


Current Award

Proposed Order
Comments

3.5 Leisure activities

[relocated as 3.6]

  

3.5.1 Leisure attendant grade 1 shall mean a person who acts as an assistant instructor, pool attendant and/or can be responsible for the setting up, distribution and care of equipment, and the taking of bookings.

[relocated as 3.6.1]

  

3.5.2 Leisure attendant grade 2 shall mean a person who has the appropriate level of training and takes classes and/or directs leisure activities such as sporting areas, health clubs and swimming pools.

[relocated as 3.6.2]

  

3.5.3 Leisure attendant grade 3 shall mean a person who has the appropriate level of training, and who plans and co-ordinates leisure activities for guests and may supervise other leisure attendants.

[relocated as 3.6.3]

  
 

3.8 General

Item 49(8)(c)

 

3.8.1 Act means the Workplace Relations Act 1996.

  
 

3.8.2 Appropriate level of training means:

    3.8.2(a) completion of a training course accredited by the Australian Hospitality Review Panel and deemed suitable according to guidelines issued through Tourism Training Australia for that particular classification;

    3.8.2(b) that the employee's skills have been assessed to be at least the equivalent of those attained through the suitable course described in clause 3.8.2(a) assessment to be undertaken by a qualified skills assessor.

  
 

3.8.3 Continuous service

    3.8.3(a) 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 twelve month period because of sickness or accident;

                      · long service leave that an employee takes under the relevant State long service leave legislation; and

  


Current Award

Proposed Order
Comments
 

        · annual leave.

    3.8.3(b) 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.

    3.8.3(c) 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 leave was reasonable)

. 3.8.3(d) Where employees are temporarily stood down through no fault of their own, service is not to be considered to be broken.

          3.8.3(e) 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.

          3.8.3(f) 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.

          3.8.3(g) 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.

          3.8.3(h) 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.

  


Current Award

Proposed Order
Comments
 

3.8.4 Double time shall mean double the ordinary hourly rate.

  

3.6 Introductory level shall mean 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 3 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 3 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 3 months is required for the employee to achieve competence for movement to level 1.

    3.8.5 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 3 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 3 months from entry, an employee will 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 3 months is required for the employee to achieve competence for movement to level 1.

  
 

3.8.6 Resort means an establishment providing hotel services, accommodation, food and beverage with access to recreation facilities for guests.

  

3.7 Appropriate level of training shall mean:

    (a) completion of a training course accredited by the Australian Hospitality Review Panel and deemed suitable according to guidelines issued through Tourism Training Australia for that particular classification;

    (b) that the employee's skills have been assessed to be at least the equivalent of those attained through the suitable course described in paragraph 3.5.5(a) assessment to be undertaken by a qualified skills assessor.

[see 3.8.2]

  
 

3.8.7 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 for duty.

  

3.8 Spread of hours 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.

3.8.8 Spread of hours 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.

 


Current Award

Proposed Order
Comments

3.9 Double time shall mean double the ordinary hourly rate prescribed for a permanent employee.

[see 3.8.4]

  

3.10 Union for the purpose of this award shall mean the Australian Liquor, Hospitality and Miscellaneous Workers Union and branches thereof.

3.8.9 Union means the Australian Liquor, Hospitality and Miscellaneous Workers Union.

  

3.11 Liquor service employees for the purpose of this award, refers to those persons employed in the capacity of the selling or dispensing of liquor in bars and/or bottle departments or shops and cellar employees.

[see 3.1.6]

  

3.12 Rostered day off (RDO), for the purposes of this award, shall be considered to be 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.

[see 3.8.7]

  

3.13 Resorts, for the purposes of this award are establishments providing hotel services, accommodation, food and beverage with access to recreation facilities for guests.

[see 3.8.6]

  

4. DATE THE AWARD STARTS

The Award starts on 23 May 1995. It continues until a new award is made on the same matters.

4. DATE THE AWARD STARTS

This award comes into force on ...............

Item 49(8)(c)
s.146(1)

5. WHERE AND WHO THE AWARD COVERS

5. WHERE AND WHO THE AWARD COVERS

Item 49(8)(c)

5.1 Where does the Award apply?

      The Award applies in:

      · Victoria

      · Tasmania

      · New South Wales

      · the South East Division of Queensland

5.1 Where does the award apply?

    The award applies in:

    · Victoria;

    · Tasmania;

    · New South Wales; and

    · the South East Division of Queensland.

 


Current Award

Proposed Order
Comments

5.2 Who does the Award apply to?

      This award relates to the industry of persons employed in any capacity whether permanent or casual in hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.

      [Note: this award does not apply to front office and clerical employees in the South Eastern Division of Queensland.]

5.2 Who does the award apply to?

      This award relates to the industry of persons employed in any capacity whether full-time, regular part-time or casual in hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.

      [Note: this award does not apply to front office and clerical employees in the South Eastern Division of Queensland.]

 

5.3 Definition of South East Queensland

      The South-Eastern Division of Queensland shall comprise commencing at Point Danger, and bounded thence by the southern boundary of the State westerly to 151 degrees of east longitude; thence by that degree of longitude bearing true north to 24 degrees 30 minutes of south latitude; thence by that parallel of latitude bearing true east to the sea coast; and thence by the sea coast southerly to the point of commencement and all islands comprised in any State or Federal electorate in the South-Eastern Division of Queensland.

5.3 Definition of South East Queensland

      The South-Eastern Division of Queensland commences at Point Danger, and is bound by the southern boundary of the State westerly to 151 degrees of east longitude; by that degree of longitude bearing true north to 24 degrees 30 minutes of south latitude; by that parallel of latitude bearing true east to the sea coast; and thence by the sea coast southerly to the point of commencement and all islands comprised in any State or Federal electorate in the South-Eastern Division of Queensland.

 

6. WHO IS BOUND BY THIS AWARD?

6. WHO IS BOUND BY THIS AWARD?

Item 49(8)(c)

This Award binds:

(i) the Australian Liquor, Hospitality and Miscellaneous Workers Union, its Federal and State officers, and its members; and

(ii) the Australian Hotels Association, its Federal and State officers, and its members, and:

      · the employers specified in schedule A;

      · establishments of the type listed in clause 5 owned by the companies specified in schedule A;

[parties required to confer]

 


Current Award

Proposed Order
Comments

      · employers that employ employees who:

          - work in any establishment specified in schedule A; and

          - work at the tasks of the type listed in clause 5; and

          - do the work of any classification set out in clauses 3 and 19.

The award applies to the employees of the employers identified above, whether members of the Australian Liquor, Hospitality and Miscellaneous Workers Union or not.

    

7. APPLICATION OF APPENDIX A

7. APPLICATION OF APPENDIX A

Item 49(8)(c)

7.1 In relation to employment under this award by the respondent employer in respect of business at the establishment listed in part 1 of appendix A, the provisions of this award shall be read as though:

7.1.1 Where there are equivalently numbered provisions in the award to those contained in part 2 of appendix A, the provisions set out in part 2 of appendix A are substituted for the corresponding provisions of the award; and

7.1.2 Where there are no equivalently numbered provisions in the award to those contained in part 2 of appendix A, the provisions set out in part 2 of appendix A are additional to the provisions contained elsewhere in the award.

In relation to employment under this award by the respondent employer in respect of business at the establishment listed in Part 1 of Appendix A, the provisions of this award shall be read as though:

7.1 Where there are equivalently numbered provisions in the award to those contained in Part 2 of Appendix A, the provisions set out in Part 2 of Appendix A are substituted for the corresponding provisions of the award; and

7.2 Where there are no equivalently numbered provisions in the award to those contained in Part 2 of Appendix A, the provisions set out in Part 2 of Appendix A are additional to the provisions contained elsewhere in the award.

  

8. RELATIONSHIP WITH OTHER AWARDS

This award supersedes the Hotels, Resorts and Hospitality Industry Award 1992 relating to employment in the industry covered by this award as specified in 5.2, but no right, obligation or liability accrued or incurred under such previous award shall be affected.

8. RELATIONSHIP WITH OTHER AWARDS

This award supersedes the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 relating to employment in the industry covered by this award as specified in 5.2, but no right, obligation or liability accrued or incurred under such previous award will be affected.

Item 49(8)(c)


Current Award

Proposed Order
Comments

8A. HISTORY OF AWARD CHANGES

[deleted]

Not allowable

8A.1 To assist employers and employees understand how the Award has changed over time the following table shall be maintained as a summary record of award changes by the employers, union or Commission (whichever the party varying the Award) on each occasion that an order varying the award is made.

    

8A.2

Clause(s) varied Date of effect Effect of change in summary

Clause 1 Award title 27/11/95 Title of award changed

Various matters 18/12/95 Section 150A review

    

PART 2 - AWARD FLEXIBILITY

9. ENTERPRISE FLEXIBILITY PROVISION

9. ENTERPRISE FLEXIBILITY PROVISIONS

Item 49(7)(a)
Item 49(8)(a), (c) and (d)

9.1 To ensure that the award provides for:

    · flexible working arrangements;

    · enhanced skills, job satisfaction and training;

    · optimum workplace efficiency and productivity;

      the parties will, consistent with the structural efficiency principle, establish at each enterprise a consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise. Any issue raised, award or non-award, which has an effect consistent with the above objectives shall be processed through that consultative mechanism and procedures set out below.

(See ss.113A and 113B of the Act)

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:

  

9.2 Enterprise arrangements may involve a variation in the application of award provisions in order to meet the requirements of individual enterprises and their employees. Arrangements may be negotiated and consequential award variations processed in accordance with the provisions set out herein provided that:

9.1 A consultative mechanism and procedures appropriate to the size, structure and needs of the enterprise or workplace shall be established.

9.2 For the purpose of the consultative process the employees may nominate the Union or another to represent them.

  


Current Award

Proposed Order
Comments

      (a) a majority of employees effected genuinely agree; and

        (b) such arrangement is consistent with the current National Wage Case principles.

9.3 Where agreement is reached an application shall be made to the Commission.

  

9.3 The procedures for processing enterprise arrangements where no award variation is necessary will be as determined by the consultative body jointly established. Should difficulties emerge in processing, finalising or applying an agreement the matter may be referred to the Commission.

    

9.4 The procedures for processing enterprise arrangements where a variation to the award is necessary will be as follows:

9.4.1 All employees will be provided a reasonable opportunity to peruse the current prescriptions (e.g. award, industrial agreement or enterprise arrangement) that apply at the place of work.

9.4.2 The authorised representative of employees at an enterprise may include an organiser or official of the union if requested to be involved by an employee/s at the establishment.

9.4.3 Where agreement is genuinely reached between the employer and the employees, or their authorised representatives, as to an arrangement to apply at an enterprise such arrangement may be committed to writing.

9.4.4 Before any arrangements as in paragraph 9.4.3 is signed and processed further in accordance with this clause, the proposed arrangement shall be forwarded in writing by the employer to the employer association, if any, of which the employer is a member and to the Federal Secretary of the union.

9.4.5 The employer association or union may, within fourteen days thereof, notify the employer in writing of any objection to the proposed arrangements including a full outline of the reasons for such objections. Should such an objection be raised the parties are to confer in an effort to resolve the issue.

    


Current Award

Proposed Order
Comments

9.4.6 The union and/or employer association shall not unreasonably withhold consent to the arrangements agreed upon.

9.4.7 Where an arrangement is objected to in accordance with paragraph 9.4.5 hereof and the objection is not resolved, an employer may make application to the Australian Industrial Relations Commission to vary the award to give effect to the arrangement at the enterprise.

9.4.8 If no party objects to the arrangement, then a consent application shall be made to the Australian Industrial Relations Commission to have the arrangement approved and the award varied in the manner specified in paragraph 9.4.9 hereof. Such applications are to be processed in accordance with the appropriate National Wage Case principles.

9.4.9 Where an arrangement is approved by the Australian Industrial Relations Commission and the arrangement is contrary to any provisions of the award then the name of the enterprise to which the arrangement applies, the date of the operation of the arrangement, the award provision from which the said enterprise is exempt and the alternative provisions which are to apply in lieu of such award provisions shall be set out in a schedule to the award.

9.4.10 Such arrangement when approved shall be displayed on a notice board at each enterprise effected.

9.4.11 No existing employee shall suffer a reduction in entitlement to earnings, award or overaward, for working ordinary hours of work as the result of any award changes made as part of the implementation of the arrangement.

9.4.12 The disputes procedures will apply if agreement cannot be reached in the implementation process on a particular issue.

    


Current Award

Proposed Order
Comments

9A. INDEX OF FACILITATIVE PROVISIONS

[see clause 40]

  

9A.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an individual employer and the Union and/or an employee, or the majority of employees, in the enterprise concerned.

    

9A.2 Facilitative provisions in this award are contained in the following clauses:

      Clause title Clause number

      Alternative method of payment [clause numbers not
      Part-time employees - hours of work reproduced]
      Public holidays - payment
      Payment of wages - time of payment
      Payment of wages - method of payment
      Hours of work - method of working prescribed hours
      Spread of hours
      Fortnightly pay
      Overtime - time off in lieu of payment for overtime
      Rosters - alteration
      Annual leave - time of taking
      Maternity leave - variation of period
      Public holidays - coinciding with RDO's
      Clothing

    

10. ALTERNATIVE METHOD OF PAYMENT

[see clause 22]

Item 49(8)(c)

10.1 As an alternative to being paid by the week according to clause 19 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% or more above the rate prescribed in clause 19 times 52 for the work being performed. In such cases, there is no requirement under clauses 28 and 20 to pay overtime and 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.

    


Current Award

Proposed Order
Comments

10.1.1 Provided further in the event of termination of employment prior to completion of a year the salary paid during such 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.

    

10.2 An employee being paid according to this subclause 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.

    

10.3 Where payment in accordance with this subclause is adopted, the employer shall keep a daily record of the hours worked by an employee which shall show the date and start and finish times of the employee for the day. The record shall be countersigned weekly by the employee and shall be kept at the place of employment for a period of at least six years.

    
 

10. WORK ORGANISATION

10.1 Employees must undertake duties as directed within the limits of their competence.

10.2 Despite the recognition of five career path streams, such streams do not prevent employees undertaking duties across different streams.

Item 49(7)(b)

PART 3 - COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION

11. INTRODUCTION OF MAJOR CHANGE IN THE WORKPLACE

11.1 Employers duty to notify

11.1.1 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 their union.

[deleted]

Not allowable


Current Award

Proposed Order
Comments

11.1.2 "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 the award makes provisions for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

    

11.2 Employer's duty to discuss change

11.2.1 The employer shall discuss with the employees affected and their union, inter alia, the introduction of the changes referred to in subclause 11.1 of this award the effects the changes are likely to have on employees, 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 their union in relation to the change.

11.2.2 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 subclause 11.1 of this award.

11.2.3 For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union, 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 be inimical to the employer's interests.

    


Current Award

Proposed Order
Comments

12. PROCEDURE TO AVOID INDUSTRIAL DISPUTATION

11. PROCEDURE TO AVOID INDUSTRIAL DISPUTATION

Item 49(7)(a)
Item 49(8)(c) and (d)

12.1 With respect to each of the employers bound by this award, disputes or grievances between it and its employees or any of them shall be settled in accordance with the procedures set out below:

11.1 In the event of a dispute arising in the workplace the procedure to be followed to resolve the matter will be as follows:

  

12.1.1 Any grievance, claim or dispute which arises shall, where possible, be settled by discussions on the job between the employee and the management.

11.1.1 The employee and their supervisor meeting and conferring on the matter; and

  

12.1.2 If the matter is not resolved at this level the matter will be further discussed between the affected employee, the union delegate and the management.

11.1.2 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.

 

12.1.3 If no agreement is reached, the relevant union organiser and delegate will discuss the matter with representatives of the employer.

    

12.2 Should the matter still not be resolved the following procedure will be followed:

    

12.2.1 A joint discussion shall be held between representatives of the Australian Hotels Association or other representatives of the employer and Australian Liquor, Hospitality and Miscellaneous Workers Union; or

11.2 If the matter is still not resolved a discussion shall be held between representatives of the Australian Hotels Association or other representative of the employer and the Union or other employee representative.

 

12.2.2 A joint discussion between representatives of the Federal Executive of the Australian Hotels Association and the Federal Executive of the Australian Liquor, Hospitality and Miscellaneous Workers Union;

    

12.2.3 If the matters are not finalised they shall be referred to either a Board of Reference or the Australian Industrial Relations Commission (the Commission).

11.3 If the matter cannot be resolved it may be referred to the Commission.

  

12.3 Whilst the foregoing procedure is being followed work shall continue normally without bans or limitations. Where it is agreed that there is an existing custom work shall continue in accordance with that custom, but in other cases, the work shall continue in accordance with the direction of the company. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

11.4 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.

  


Current Award

Proposed Order
Comments

13. BOARD OF REFERENCE

13.1 For the purpose of this award Boards of Reference are hereby constituted. They shall consist of one representative to be nominated by the union and one to be nominated by the respondent and one representative to be nominated by the Commission who shall be the Chairperson.

13.2 The functions of Board of Reference shall be to settle disputes arising from this award and other matters specifically referred to it under the award or by the Commission.

13.3 The Board shall meet as and when required and shall sit at such times and places as the Board may from time to time determine.

13.4 The Board shall make its own rules of procedure and shall keep records of all matters referred for settlement and of the decisions thereon.

13.5 Decisions of the Board may be reviewed and altered by the Commission on application of any party to this award. Provided that notice of application to review is given within seven days of the decision of the Board and an application is lodged with the Industrial Registrar for such review within 21 days. When an application is made to review a decision such decision shall not come into effect until the matter has been dealt with by the Commission.

13.6 In the event of members of the Board failing to reach a unanimous decision in respect of any matter, the decision of the Chairperson shall be the decision of the Board.

[deleted]

Item 49(7)(a)
Item 49(8)(d)

PART 4 - EMPLOYER AND EMPLOYEES' DUTIES, EMPLOYMENT, RELATIONSHIP AND RELATED ARRANGEMENTS

14. EMPLOYER DUTIES

    

14.1 Sexual Harassment

14.1.1 All employees are to be allowed to work in an environment free of sexual harassment.

[deleted]

Not allowable


Current Award

Proposed Order
Comments

14.1.2 An employer shall not dismiss an employee on the grounds of refusal to dress in a manner which would cause that employee embarrassment.

    

14.2 Cleaning Work

14.2.1 Any bar attendant or cellarman shall not be required to scrub or wash floors or tables; such work shall be performed by the useful.

14.2.2 No employees shall be required to clean or attend sanitary conveniences provided for the opposite sex except where the cleaning or servicing is to be carried out during a period or periods that a building or establishment is occupied solely by members of the same sex as the employees or where a sign is displayed indicating that the sanitary convenience is closed for cleaning or servicing.

[deleted]

[deleted]

Item 49(7)(b)

Not allowable

14.3 No Deduction for Breakage

14.3.1 An employer shall not charge a sum against, require payment for nor deduct any sum from the wages or income of an employee in respect of breakages of cashiering underings except in the case of wilful misconduct.

12. NO DEDUCTION FOR BREAKAGES OR CASHIERING UNDERINGS

An employer must not deduct any sum from the wages or income of an employee in respect of breakages or cashiering underings except in the case of wilful misconduct.

Item 49(8)(c)

 

13. ANTI-DISCRIMINATION

Item 49(8)(c)

 

13.1 It is the intention of the respondents to this award to achieve the principal object in s.3(j) of the Workplace Relations Act 1996 through respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, natural extraction or social origin.

and (d) s.89A(8)


Current Award

Proposed Order
Comments
 

13.2 Accordingly, in fulfilling their obligations under the dispute avoidance and settling clause, the respondents must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects.

13.3 Nothing in this clause is taken to affect:

  
 

13.3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation;

13.3.2 junior rates of pay, until 22 June 2000 or later date determined by the Commission in accordance with s.143(1E) of the Act;

13.3.3 an employee, employer or registered organisation, pursuing matters of discrimination in any State or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission.

13.3.4 the exemptions in s.170CK(3) and (4) of the Act.

  

15. STAND DOWN OF EMPLOYEES

14. STAND DOWN OF EMPLOYEES

  

15.1 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:

15.1.1 a strike or stop-work meeting;

15.1.2 a breakdown of machinery;

15.1.3 rationing of power or the lack of fuel or transport;

15.1.4 the non-delivery of the raw material and finished products in the Liquor Trades Industry; or

15.1.5 any cause for which the employer cannot reasonably be held responsible, but shall not apply to slackness of trade.

14.1 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:

14.1.1 a strike or stop-work meeting;

14.1.2 a breakdown of machinery;

14.1.3 rationing of power or the lack of fuel or transport;

14.1.4 the non-delivery of the raw material and finished products in the Liquor Trades Industry; or

14.1.5 any cause for which the employer cannot reasonably be held responsible, but excluding slackness of trade.

Item 49(8)(c)


Current Award

Proposed Order
Comments

15.2 In respect of each of the reasons specified in clause 15.1:

15.2.1 No employee shall be deemed to be a casual employee only by reason of being given intermittent work in pursuance of this clause;

15.2.2 At least four hours' notice of such deduction shall be exhibited where all employees concerned shall be able to see it;

15.2.3 Service is not to be considered broken merely because employees have been temporarily stood down through no fault of their own;

15.2.4 Continuity of service is to be protected for the purpose of annual leave, holidays and sick pay, as provided by this award; and

15.2.5 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.

14.2 In respect of each of the reasons specified in clause 14.1:

14.2.1 No employee can be deemed to be a casual employee only by reason of being given intermittent work in pursuance of this clause;

14.2.2 The employer must give at least four hours' written notice of intention to make such a deduction, and the notice must be exhibited where all employees concerned are able to see it;

14.2.3 Service is not to be considered broken merely because employees have been temporarily stood down through no fault of their own;

14.2.4 Continuity of service is to be protected for the purpose of annual leave, holidays and sick pay, as provided by this award; and

14.2.5 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.

  

16. EMPLOYMENT CATEGORIES

15. TYPES OF EMPLOYMENT

  

16.1 General

16.1.1 All employees shall be employed as permanent (full-time or part-time) or casual employees.

16.1.2 At the time of engagement an employer shall inform each employee as to the terms of his/her engagement and in particular whether he/she is to be a full-time, part-time or casual employee.

16.1.3 Employees engaged by the week by an employer shall not be engaged for casual work in the hotel in which they are permanently employed.

15.1 General

15.1.1 Employees under this award will be employed in one of the following categories:

      15.1.1(a) full-time employees; or

      15.1.1(b) regular part-time employees; or

      15.1.1(c) casual employees.

15.1.2 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.

[deleted]

Item 49(8)(b) and (d)

Not allowable


Current Award

Proposed Order
Comments

16.2 Casual Employment

16.2.1 A "Casual employee" in this industry shall mean and be deemed to be any employee engaged as such to work for a lesser period than a working week of 38 hours on the class of employment for which the casual is employed.

16.2.2 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) 25 per cent for work Monday to Friday inclusive provided that for work performed between the hours of 7.00 p.m. and midnight an additional $1.14 per hour or any part of an hour shall be paid with a minimum daily payment of $1.73 and a maximum daily payment of three hours. Provided further that for work performed between midnight and 7.00 a.m. an additional $1.65 per hour or any part of an hour shall be paid with a minimum daily payment of $1.73 and a maximum daily payment of three hours. For the purposes of this subparagraph midnight shall include midnight Sunday;

              (b) 50 per cent for work on Saturday;

              (c) 75 per cent for work on Sunday; and

              (d) 175 per cent for work on holidays prescribed in the award.

16.2.3 Casual work may, by mutual consent, be paid for weekly or fortnightly by agreement between the employers and employees or at the termination of each engagement.

16.2.4 "Engagement" for the purposes of this clause shall be deemed to mean the period or periods for which the employer notifies the employee that he or she is so required to attend on any one day. Provided that each period of engagement shall stand alone and shall be treated as an engagement of not less than two hours and paid for as such.

15.2 Casual employment

15.2.1 A casual employee is an employee engaged as such.

15.2.2 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:

    15.2.2(a) 25 per cent for work Monday to Friday inclusive provided that for work performed between the hours of 7.00 p.m. and midnight an additional $1.14 per hour or any part of an hour shall be paid with a minimum daily payment of $1.73 and a maximum daily payment of three hours. Provided further that for work performed between midnight and 7.00 a.m. an additional $1.65 per hour or any part of an hour shall be paid with a minimum daily payment of $1.73 and a maximum daily payment of three hours. For the purposes of this clause midnight shall include midnight Sunday;

    15.2.2(b) 50 per cent for work on Saturday;

    15.2.2(c) 75 per cent for work on Sunday; and

    15.2.2(d) 175 per cent for work on holidays prescribed in the award.

15.2.3 Casual employees must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.

15.2.4 On each occasion a casual employee is required to attend work he or she is entitled to a minimum payment for two hours work.

Item 49(8)(c)

Item 49(8)(d)


Current Award

Proposed Order
Comments

16.2.5 Casual employees who have been regularly employed as such in an establishment shall not be re-employed as permanent employees in that same establishment for a lesser period than one month

[deleted]

Item 49(8)(d)

16.3 Part Time Employees

16.3.1 Adults may be employed as part-time employees in any classification in this award on the basis as follows:

          (a) Not less than three hours and not longer than eight hours per day, not less than three nor more than five days each week, and not less than fifteen hours each week, nor in excess of 30 hours per week;

          (b) All the time worked in excess of eight hours per day, five days per week and/or 30 hours per week shall be overtime and paid for at the rates prescribed for other permanent employees in clause 28 of this award;

          (c) The hours of duty each day shall be worked continuously. Provided that an employee who is required to work longer than five hours shall be granted a meal break of not less and not more than 30 minutes. The meal break shall not be counted as time worked. Where such meal break is not granted in a period of not longer than five hours of duty the penalty prescribed in clause 27 of this award shall be paid.

16.3.2 A part-time employee shall be paid per hour at the rate of 1/38 of the weekly rate prescribed for the class of work performed plus 10 per cent. The additional 10 per cent shall be regarded also as ordinary wages for the payment of annual leave, sick leave, and when work is not performed on a holiday.

16.3.3 A part-time employee who is required to work any of his/her ordinary hours between the hours of 7.00 p.m. and midnight Monday to Friday inclusive shall be paid an additional $1.14 per hour or part of an hour for such time worked within the said hours plus the 10 per cent herein prescribed with a minimum daily payment of $1.73 for any one day

15.3 Regular part-time employees

15.3.1 An employer may employ regular part-time employees in any classification in this award.

15.3.2 A regular part-time employee is an employee who:

      15.3.2(a) works less than full-time hours of 38 per week; and

      15.3.2(b) has reasonably predictable hours of work; and

      15.3.2(c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

15.3.3 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.

15.3.4 Any agreed variation to the regular pattern of work will be recorded in writing.

15.3.5 An employer is required to roster a regular part-time employee for a minimum of three consecutive hours on any shift.

15.3.6 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 15.2.

15.3.7 All time worked in excess of the hours as mutually arranged will be overtime and paid for at the rates prescribed in clause 28 - Overtime, of this award.

15.3.8 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.

Item 49(8)(b) and (c), not allowable and s.89A(4)(b)


Current Award

Proposed Order
Comments

16.3.4 A part-time employee who is required to work any of his/her ordinary hours between midnight and 7.00 a.m. Monday to Friday inclusive shall be paid an additional $1.65 per hour or part of an hour for such time worked within the said hours plus the 10 per cent herein prescribed with a minimum daily payment of $1.73 for any one day. For the purposes of this subparagraph midnight shall include midnight Sunday. The said additional 10 per cent shall not apply in addition to the rates prescribed for work on Saturday, Sunday, holidays, overtime, or where double time is prescribed in the award.

16.3.5 The provisions of this award in respect of annual leave, sick leave and holidays shall apply on a pro rata basis to part-time employees.

16.3.6 The provisions of clauses 20, 28 and 29 of this award shall apply to part-time employees.

16.3.7 Notwithstanding the foregoing provisions by agreement between an employer and employee/s part-time employees may be employed for a specific number of hours each week on the following basis:

      (a) The specific number of hours for such part-time employees shall be not less than twelve hours and not more than 32 hours each week and not less than three hours and not longer than eight hours each day to be worked in not more than five days each week;

      (b) All time worked in excess of the rostered hours each day and the specific number of hours each week shall be overtime and paid for at the rates prescribed for other permanent employees in clause 28 of this award;

      (c) Provided further by agreement between the employer and the employee and/or the State branch of the union the arrangement of hours of work can be implemented as follows:

        (i) The specific number of hours shall be not less than 48 and not more than 128 per each four week period;

    


Current Award

Proposed Order
Comments

        (ii) Subject to the following conditions:

(A) Not less than three hours and not longer than eight hours each day and not more than nineteen days in each four week period.

                      (B) Employees shall be entitled to a minimum of nine full days off per each four week period.

                      (C) No employee shall work more than ten days in succession without a rostered day off.

                      (D) All time worked in excess of the rostered hours each day and the specific number of hours each four week period shall be overtime and paid for at the rates prescribed for other weekly employees in clause 28 of this award;

                      (d) A part-time employee employed under the provisions of this subclause shall be paid per hour at the rate of 1/38 of the weekly rate prescribed for the class of work performed;

                      (e) A part-time employee employed under the provisions of this subclause shall be entitled to all other conditions of this clause provided such conditions are not inconsistent with the provisions of this subclause.

    

16.4 Apprentices

15.4 Apprentices

Item 49(8)(c) and (d)

16.4.1 Notwithstanding anything elsewhere contained in this award (other than in Tasmania and Victoria) any awards and/or regulations made by any State apprenticeship commission shall apply to any section of the trade to which such awards and/or regulations are expressed to apply; provided that any apprentice employed pursuant thereto shall be deemed to be a junior for the purpose of computing the proportion of juniors who may be employed under this award.

15.4.1 Awards and/or regulations to apply

      Except in Victoria and Tasmania, any awards and/or regulations made by any State apprenticeship board or industrial tribunal applies to any section of the trade to which such awards and/or regulations are expressed to apply, despite anything contained in this award.

  


Current Award

Proposed Order
Comments

16.4.2 Where a training school is established by any hotel, company or a group of hotels, and training is given to young men and women in all phases of hotel operation and management, and such school is approved by the State apprenticeship authority as being a proper school for training, the rates applicable under the awards and/or regulations made by any State apprenticeship commission or authority shall be applicable to such approved school.

16.4.3 Any person completing a full apprenticeship for cooking shall not be paid less than a cook (tradesperson) grade 3 rate contained in clause 19. The provisions of clause 16.4 of this award shall not apply to an employee provided for in these subclauses.

15.4.2 Cooking apprenticeship

      Any person completing a full apprenticeship for cooking must not be paid less than a cook (tradesperson) grade 3 rate contained in clause 18 - Classifications and wage rates.

  

16.4.4 Tasmania

      (a) In Tasmania where an employee is apprenticed in the cooking trade in accordance with the provision of any State law and/or regulations made by the Apprenticeship Commission of Tasmania such employee shall be paid the percentage of the total wage prescribed for a cook (tradesperson) grade 3 in clause 19 of this award as follows:

                      Per cent

          First year 50
          Second year 65
          Third year 80
          Fourth year 90

                (b) In Tasmania where an employee is apprenticed in the waiting trade in accordance with the provisions of any State law and/or regulations made by the Apprenticeship Commission of Tasmania, such employee shall be paid the percentage of the total wage prescribed for a food and beverage attendant grade 5 in clause 19 of this award as follows:

15.4.3 Tasmania

          15.4.3(a) In Tasmania where an employee is apprenticed in the cooking trade in accordance with the provision of any State law and/or regulations made by the Apprenticeship Commission of Tasmania such employee will be paid the percentage of the total wage prescribed for a cook (tradesperson) grade 3 in clause 18 of this award as follows:

          First year 50%
          Second year 65%
          Third year 80%
          Fourth year 90%

    15.4.3(b) In Tasmania where an employee is apprenticed in the waiting trade in accordance with the provisions of any State law and/or regulations made by the Apprenticeship Commission of Tasmania, such employee will be paid the percentage of the total wage prescribed for a food and beverage attendant grade 5 in clause 18 of this award as follows:

  


Current Award

Proposed Order
Comments

                Per cent

          First six months 62
          Second six months 76
          Third six months 76
          Fourth six months 90
          Fifth six months 90

        (c) Any person completing a full apprenticeship as a qualified tradesperson shall be paid not less than the total rate prescribed for a cook (tradesperson) grade 3 or food and beverage attendant grade 5 in clause 19 of this award.

        (d) The provisions of clause 16.4 of this award shall not apply to an employee provided for in this subclause.

        (e) All percentages prescribed in this subclause shall be calculated to the nearest ten cents. Any broken part of ten cents in the result being less than five cents shall be disregarded - five cents and over shall go to the higher ten cents.

            First six months 62%
            Second six months 76%
            Third six months 76%
            Fourth six months 90%
            Fifth six months 90%

      15.4.3(c) Any person completing a full apprenticeship as a qualified trades person will be paid not less than the total rate prescribed for a cook (tradesperson) grade 3 or food and beverage attendant grade 5 in clause 18 - Classifications and wage rates of this award.

      15.4.3(d) The provisions of clause 15.4 of this award will not apply to an employee provided for in this clause.

          15.4.3(e) All percentages prescribed in this clause will be calculated to the nearest ten cents. Any broken part of ten cents in the result being less than five cents will be disregarded - five cents and over will go to the higher ten cents.

  

16.4.5 Victoria

                (a) In Victoria where an employee is apprenticed in the cooking trade in accordance with the provision of any State law and/or regulations made by the Apprenticeship Commission of Victoria such employee shall be paid the percentage of the total wage prescribed for a cook (tradesperson) grade 3 in clause 19 of this award as follows:

              Per cent

        First year 55
        Second year 65
        Third year 80
        Fourth year 95

15.4.4 Victoria

          15.4.4(a) In Victoria where an employee is apprenticed in the cooking trade in accordance with the provision of any State law and/or regulations made by the Apprentice Commission of Victoria such employee will be paid the percentage of the total wage prescribed for a cook (tradesperson) grade 3 in clause 18 of this award as follows:

                      First year 55%
                      Second year 65%
                      Third year 80%
                      Fourth year 95%

  


Current Award

Proposed Order
Comments

      (b) In Victoria where an employee is apprenticed in the waiting trade in accordance with the provisions of any State law and/or regulations made by the Apprenticeship Commission of Victoria, such employee shall be paid as follows:

        (i) First six months - 70% of the total rate prescribed for food and beverage attendant grade 5 in clause 19;

        (ii) Second six months - 85% of the total rate prescribed for food and beverage attendant grade 5 in clause 19;

        (iii) Third six months - Midway between the total rate prescribed for food and beverage attendant grade 2 (waiter) and food and beverage attendant grade 5 in clause 19;

        (iv) Fourth six months - Midway between the total rate prescribed for third 6 months and food and beverage attendant grade 5 in clause 19.

      (c) Any person completing a full apprenticeship as a qualified tradesperson shall be paid not less than the total rate prescribed for a cook (tradesperson) grade 3 or food and beverage attendant grade 5 in clause 19 of the award.

      (d) All percentages prescribed in this subclause shall be calculated to the nearest ten cents. Any broken part of ten cents in the result being less than five cents shall be disregarded - five cents and over shall go to the higher ten cents.

16.4.6 Proficiency - cooking trade - Victoria

        (a) Application

          (i) Proficiency pay as set out in paragraph 16.4.6(b) hereof shall apply to apprentices who have successfully completed their schooling in a given year.

          15.4.4(b) In Victoria where an employee is apprenticed in the waiting trade in accordance with the provisions of any State law and/ or regulations made by the Apprenticeship Commission of Victoria, such employee will be paid as follows:

                15.4.4(b)(i) First six months - 70% of the total rate prescribed for food and beverage attendant grade 5 in clause 18;

                15.4.4(b)(ii) Second six months - 85% of the total rate prescribed for food and beverage attendant grade 5 in clause 18;

                15.4.4(b)(iii) Third six months - Midway between the total rate prescribed for food and beverage attendant grade 2 (waiter) and food and beverage attendant grade 5 in clause 18;

                15.4.4(b)(iv) Fourth six months - Midway between the total rate prescribed for third 6 months and food and beverage attendant grade 5 in clause 18.

          15.4.4(c) Any person completing a full apprenticeship as a qualified tradesperson will be paid not less than the total rate prescribed for a cook (tradesperson) grade 3 or food and beverage attendant grade 5 in clause 18 of the award.

          15.4.4(d) All percentages prescribed in this clause will be calculated to the nearest ten cents. Any broken part of ten cents in the result being less than five cents will be disregarded - five cents and over will go to the higher ten cents.

  


Current Award

Proposed Order
Comments

      (b) Payments

        (i) Apprentices shall receive the rate of pay of a cook (tradesperson) grade 3 during the latter half of the fourth year of the apprenticeship where the standard of proficiency has been attained on one, two or three occasions on the following basis:

                      (A) On one occasion only:

                      - for the first nine months of the fourth year apprenticeship, the normal fourth year rate of pay;

                      - thereafter, the cook (tradesperson) grade 3 award rate of pay.

                      (B) On two occasions:

                      - for the first six months of the fourth year of apprenticeship, the normal fourth year rate of pay;

                      - thereafter, the cook (tradesperson) grade 3 award rate of pay.

                      (C) On all three occasions:

                      - for the entire fourth year, the cook (tradesperson) grade 3 award rate of pay.

16.4.7 Proficiency waiting trade - Victoria

        (a) Application

                      (i) Proficiency pay as set out in paragraph 16.3.2 hereof shall apply to level 2 apprentices who have successfully completed their schooling in the first year.

    


Current Award

Proposed Order
Comments

      (b) Payments

                      (i) Apprentices who have attained the standard of proficiency in their first year shall receive the rate of pay of a food and beverage attendant (tradesperson) grade 4 during the latter half of the second year of apprenticeship.

16.4.8 Apprentice - Victoria - Overtime

                (a) An apprentice in Victoria under the age of eighteen years shall not, without his or her consent, be required to work overtime or shift work.

                (b) Any apprentice employed pursuant to this award shall be deemed to be a junior for the purpose of computing the proportion of juniors who may be employed under this award.

15.4.8 Apprentice - Victoria - overtime

          An apprentice in Victoria under the age of eighteen years shall not, without his or her consent, be required to work overtime or shift work.

[deleted]

Not allowable s.89A(4)(a)

16.5 Juniors

15.5 Juniors

  

16.5.1 Junior employees (other than office juniors)

        (a) The minimum rate of wages for junior employees shall be the undermentioned percentages of the rates prescribed for the appropriate adult classification for the work performed for the area in which such junior is working.

          Age Per cent

          17 years of age and under 70
          18 years of age 80
          19 years of age 90
          20 years of age Full adult rate

15.5.1 Junior employees (other than office juniors)

          The minimum rate of wages for junior employees are the undermentioned percentages of the rates prescribed for the appropriate adult classification for the work performed for the area in which such junior is working.

          Age Per cent

          17 years of age and under 70
          18 years of age 80
          19 years of age 90
          20 years of age Full adult rate

Item 49(8)(c)

16.5.2 Junior office employees

      (a) The minimum rate of wages for junior office employees shall be the undermentioned percentages of rates prescribed for the office employee 1st year of adult service in the clerical industry at the grade in which such junior is working.

15.5.2 Junior office employees

      The minimum rates of wages for junior office employees are the undermentioned percentages of rates prescribed for the office employee 1st year of adult service in the clerical industry at the grade in which such junior is working.

Item 49(8)(c)


Current Award

Proposed Order
Comments

          Age Per cent

          At 15 years of age and under 50
          At 16 years of age 60
          At 17 years of age 70
          At 18 years of age 80
          At 19 years of age 90
          At 20 years of age 1st year adult service

        Age Per cent

        At 15 years of age and under 50
        At 16 years of age 60
        At 17 years of age 70
        At 18 years of age 80
        At 19 years of age 90

    At 20 years of age 1st year adult service

  

16.5.3 Percentage Pay Calculation

      (a) The percentage prescribed in subclauses 16.5.1 and 16.5.2 hereof shall be calculated as follows:

                      (i) The total wage shall be calculated to the nearest ten cents any broken part of ten cents in the result being less than five cents shall be disregarded - five cents and over shall go to the higher ten cents;

                      (ii) Junior male or female employees, on reaching the age of eighteen years, may be employed in the bar or other places where liquor is sold. Provided that where such junior is employed the adult award rate for the work being performed shall be paid;

                      (iii) Junior employees being paid junior rates may be employed in the proportion not exceeding one junior to every three or fraction of three adults employed;

                      (iv) Notwithstanding anything elsewhere contained in this award where such junior employees are employed in excess of one to every three or fraction of three adults each such additional junior shall be paid the adult award rate for the work being performed. In deciding which junior or juniors shall be paid the adult rate, the length of service in the establishment shall apply;

    15.5.3 Other conditions

    15.5.3(a) The percentage prescribed in clauses 15.5.1 and 15.5.2 hereof is calculated to the nearest ten cents. Any broken part of ten cents in the result being less than five cents is disregarded - five cents and over goes to the higher ten cents;

    15.5.3(b) Junior employees, on reaching the age of eighteen years, may be employed in the bar or other places where liquor is sold. However, where a junior is employed the adult award rate for the work being performed must be paid;

[deleted]

    [deleted]

Item 49(8)(c)

Not allowable s.89A(4)(a)

Not allowable s.89A(4)(a)


Current Award

Proposed Order
Comments

        (v) 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; and

                      (vi) No employee under the age of 18 years shall be required to work more than ten hours in a shift.

          15.5.3(c) 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 must be borne by the employer; and

          15.5.3(d) No employee under the age of eighteen years shall be required to work more than ten hours in a shift.

  

16.6 Supported wage employees

15.6 Supported wage system

Item 49(8)(c) and (e)

16.6.1 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:

      (a) "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]";

      (b) "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;

      (c) "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;

      (d) "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.

15.6.1 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:

    15.6.1(a) 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.

    15.6.1(b) Accredited assessor means a person accredited by the managing unit established by the Commonwealth under the supported wage system to perform assessments of an individual's productive capacity within the supported wage system.

    15.6.1(c) Disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided for under the Social Security Act 1991, as amended from time to time, or any successor to that scheme.

    15.6.1(d) 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.

  


Current Award

Proposed Order
Comments

16.6.2 Eligibility criteria

      (a) 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.

                (b) 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.

                (c) 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 under s.12A of the Act, or if a part only has received recognition, that part.

15.6.2 Eligibility criteria

    15.6.2(a) 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 test for a disability support pension.

    15.6.2(b) 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 employment.

    15.6.2(c) The clause also does not apply to employers in respect of their facility, programme, undertaking, service or the like which receives funding under the Disability Service 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 that Act, or if a part only has received recognition, that part.

  

16.6.3 Supported wage rates

                (a) 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 the following schedule:

15.6.3 Supported wage rates

          15.6.3(a) Employees to whom this clause applies will 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:

  


Current Award

Proposed Order
Comments

            Assessed capacity % of prescribed award rate

            10%* 10%
            20% 20%
            30% 30%
            40% 40%

          50% 50%

            60% 60%
            70% 70%

          80% 80%

            90% 90%

            (Provided that the minimum amount payable shall be not less than $45 per week).

            *Where a person's assessed capacity is 10%, they shall receive a high degree of assistance and support.

          Assessed capacity % of prescribed award rate

          (clause 15.6.4)

          10% 10%
          20% 20%
          30% 30%
          40% 40%
          50% 50%
          60% 60%
          70% 70%
          80% 80%
          90% 90%

                    15.6.3(b) Provided that the minimum amount payable will be not less than $45.00 per week.

                    15.6.3(c) Where a person's assessed capacity is 10%, they will receive a high degree of assistance and support.

  

16.6.4 Assessment of capacity

                (a) 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:

                      (i) the employer and a union party to the award, in consultation with the employee or, if desired by any of these; or

                      (ii) the employer and an accredited Assessor from a panel agreed by the parties to the award and the employee.

15.6.4 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:

      15.6.4(a) the employer and a union party to the award, in consultation with the employee or, if desired by any of these; or

      15.6.4(b) the employer and an accredited assessor from a panel agreed by the parties to the award and the employee.

  

16.6.5 Lodgment of assessment instrument

                (a) 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 Registrar of the Industrial Relations Commission.

15.6.5 Lodgment of assessment instrument

          15.6.5(a) 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 Registrar of the Australian Industrial Relations Commission.

  


Current Award

Proposed Order
Comments

      (b) 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 Registrar to the union by certified mail and shall take effect unless an objection is notified to the Registrar within 10 working days.

    15.6.5(b) 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 Registrar to the union by certified mail and shall take effect unless an objection is notified to the Registrar within ten working days.

  

16.6.6 Review of assessment

      (a) 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.

15.6.6 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 will be in accordance with the procedures for assessing capacity under the supported wage system.

  

16.6.7 Other terms and conditions of employment

      (a) 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.

15.6.7 Other terms and conditions of employment

      Where an assessment has been made, the applicable percentage will 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.

  

16.6.8 Workplace adjustment

        (a) 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 area.

15.6.8 Workplace adjustment

        An employer wishing to employ a person under the provisions of this clause will 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 area.

  

16.6.9 Trial period

                (a) 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 that in some cases additional work adjustment time (not exceeding 4 weeks) may be needed.

15.6.9 Trial period

          15.6.9(a) 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 twelve weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

  


Current Award

Proposed Order
Comments

                (b) During that trial period the assessment of capacity shall be undertaken and the proposed wage rate for a continuing employment relationship shall be determined.

                (c) The minimum amount payable to the employee during the trial period shall be no less than $45 per week.

                (d) Work trials should include induction or training as appropriate to the job being trialled.

                (e) 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 (d) hereof.

          15.6.9(b) During that trial period the assessment of capacity shall be undertaken and the proposed wage rate for a continuing employment relationship shall be determined.

          15.6.9(c) The minimum amount payable to the employee during the trial period shall be no less than $45.00 per week.

          15.6.9(d) Work trials should include induction or training as appropriate to the job being trialled.

          15.6.9(e) 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 clause 15.6.4 hereof.

  

17. REDUNDANCY

    

17.1 Discussions before termination

17.1.1 Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union.

17.1.2 The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph 17.1.1 hereof and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

[deleted]

Not allowable


Current Award

Proposed Order
Comments

17.1.3 For the purposes of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their union, 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 workers 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 be inimical to the employer's interests.

    
 

16. REDUNDANCY

16.1 Definition

    Redundancy occurs when an employer decides that the employer no longer wishes the job the employee has been doing to be done by anyone and this is not due to the ordinary and customary turnover of labour.

Item 49(8)(c)

17.2 Transfer to lower paid duties

      Where an employee is transferred to lower paid duties for reasons set out in paragraph 17.1.1 hereof the employee shall be entitled to the same period of notice of transfer as he or she would have been entitled to if his or her employment had been 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 lower ordinary time rates for the number of weeks of notice still owing.

16.2 Transfer to lower paid duties

      Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been 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 rate of pay and the new ordinary time rate for the number of weeks of notice still owing.

 

17.3 Severance pay

      In addition to the period of notice prescribed for ordinary termination in subclause 18.1 of this award and subject to further order of the Commission, an employee whose employment is terminated for reasons set out in paragraph 17.1.1 hereof shall be entitled to the following amount of severance pay in respect of a continuous period of service.

16.3 Severance pay

16.3.1 In addition to the period of notice prescribed for ordinary termination in clause 17.1 an employee whose employment is terminated by reason of redundancy must be paid, subject to further order of the Commission, the following amount of severance pay in respect of a continuous period of service:

  


Current Award

Proposed Order
Comments

      Period of continuous service Severance pay

      1 year or less nil
      1 year and up to the completion of 2 years 4 weeks' pay
      2 years and up to the completion of 3 years 6 weeks' pay
      3 years and up to the completion of 4 years 7 weeks' pay
      4 years and over 8 weeks' pay

        (a) "Week's pay" means the ordinary time rate of pay for the employees concerned.

        (b) Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.

        Period of continuous service Severance pay

        1 year or less nil
        1 year and up to the completion of 2 years 4 weeks' pay
        2 years and up to the completion of 3 years 6 weeks' pay
        3 years and up to the completion of 4 years 7 weeks' pay
        4 years and over 8 weeks' pay

16.3.2 Week's pay means the ordinary time rate of pay for the employees concerned.

16.3.3 Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.

  

17.4 Employee leaving during notice

    An employee whose employment is terminated for reasons set out in paragraph 17.1.1 hereof may terminate his/her employment during the period of notice and, if so, shall be entitled to the same benefits and payments under this clause had he/she remained with the employer until the expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

16.4 Employee leaving during notice period

    An employee whose employment is terminated by reason of redundancy may terminate his/her employment during the period of notice and, if so, will be entitled to the same benefits and payments under this clause had they remained with the employer until the expiry of such notice. However, in this circumstance the employee will not be entitled to payment in lieu of notice.

  

17.5 Alternative employment

    An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.

16.5 Alternative employment

    An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.

 

17.6 Time off during notice period

17.6.1 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 for the purpose of seeking other employment.

16.6 Time off during notice period

16.6.1 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 for the purpose of seeking other employment.

  


Current Award

Proposed Order
Comments

17.6.2 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 he or she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.

16.6.2 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 he or she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.

  

17.7 Notice to Commonwealth Employment Service

    Where a decision has been made to terminate employees in the circumstances outlined in paragraph 17.1.1 hereof, the employer shall notify the Commonwealth Employment Service 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.

    

17.8 Superannuation benefits

16.7 Superannuation benefits

  

17.8.1 Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, he or she shall only receive under subclause 17.3 hereof the difference between the severance pay specified in that subclause and the amount of the superannuation benefit he or she receives which is attributable to employer contributions only.

16.7.1 Subject to further order of the Commission where an employee who is terminated receives a benefit from a superannuation scheme, he or she shall only receive under clause 16.3 hereof the difference between the severance pay specified in that clause and the amount of the superannuation benefit he or she receives which is attributable to employer contributions only.

  

17.8.2 If this superannuation benefit is greater than the amount due under subclause 17.3 hereof then he or she shall receive no payment under that clause.

16.7.2 If this superannuation benefit is greater than the amount due under clause 16.3 hereof then he or she shall receive no payment under that clause.

  

17.9 Transmission of business

17.9.1 Where a business is before or after the date of this award, transmitted from an employer (in this subclause called "the transmittor") to another employer (in this subclause called "the transmittee") and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee then:

[see clause 6]

  


Current Award

Proposed Order
Comments

      (a) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and

      (b) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.

17.9.2 In this subclause "business" includes trade, process, business or occupation and includes part of any such business and "transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning.

    

17.10 Employees with less than one year's service

17.10.1 This clause shall not apply to employees with less than one year's continuous service and the general obligation on employers should be no more than to give relevant 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.

17.10.2 This clause shall not apply where employment is terminated as a consequence of 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.

17.10.3 Notwithstanding the foregoing provisions trainees who are engaged for a specific period of time shall, once the traineeship is completed and provided that the trainee 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 redundancy entitlements.

16.8 Employees exempted

[deleted]

16.8.1 This clause shall not apply where employment is terminated as a consequence of 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.

    16.8.2 Notwithstanding the foregoing provisions trainees who are engaged for a specific period of time shall, once the traineeship is completed and provided that the trainee 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 redundancy entitlements.

Not allowable


Current Award

Proposed Order
Comments

17.11 Employers exempted

16.9 Employers exempted

  

      Subject to an order of the Commission, in a particular redundancy case, this clause shall not apply to employers who employ less than fifteen employees.

      Subject to an order of the Commission, in a particular redundancy case, this clause shall not apply to employers who employ less than fifteen employees.

  

17.12 Incapacity to pay

16.10 Incapacity to pay

  

      An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay.

    An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay.

  

17.13 Clause 17, and in particular 17.3, does apply to Pancan Pty Ltd in relation to the termination of employment of six employees on or about 20 June 1995 notwithstanding that it employs less than fifteen employees.

[deleted]

Item 49(8)(d)

18. TERMINATION OF EMPLOYMENT

17. TERMINATION OF EMPLOYMENT

Item 49(8)(c) and (d)

18.1 Notice of termination by employer

17.1 Notice of termination by employer

  

18.1.1 In order to terminate the employment of a full-time or 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

17.1.1 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

  

18.1.2 In addition to the notice in paragraph 18.1.1 hereof, 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 week's notice.

17.1.2 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.

  


Current Award

Proposed Order
Comments

18.1.3 Payment in lieu of the notice prescribed in paragraphs 18.1.1 and/or 18.1.2 hereof 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.

17.1.3 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.

  

18.1.4 In calculating any payment in lieu of notice the wages an employee would have received in respect of the ordinary time he or she would have worked during the period of notice had his or her employment not been terminated shall be used.

17.1.4 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.

  

18.1.5 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.

17.1.5 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.

  

18.1.6 Notwithstanding 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.

    17.1.6 Notwithstanding 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.

  

18.1.7 For the purposes of this clause continuous service shall be as defined according to subclauses 30.10 to 30.13.

    17.1.7 Continuous service is defined in clause 3.8.3.

  

18.1.8 Notwithstanding anything hereinbefore contained an employee shall not be given notice or dismissed except for misconduct whilst legitimately absent from duty on accrued sick leave or annual leave.

[deleted]

Not allowable


Current Award

Proposed Order
Comments

18.2 Notice of termination by employee

17.2 Notice of termination by an employee

  

18.2.1 The notice of termination required to be given by an employee shall be the same as that required of an employer, save and except that there shall be no additional notice based on the age of the employee concerned.

17.2.1 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.

  

18.2.2 If an employee fails to give notice the employer shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice.

17.2.2 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.

  

18.3 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.

17.3 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.

  

18.4 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 his or her employment and the classification of or the type of work performed by the employee.

[deleted]

Not allowable

18.5 Summary dismissal

18.5.1 Notwithstanding the provision of paragraph 17.1.1 hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal including inefficiency within the first fourteen days, neglect of duty or misconduct and in such cases the wages shall be paid up to the time of dismissal only.

18.5.2 Subject to clause 31 of this award an employee who fails without sound reason to notify the employer within one hour of the rostered commencing time of his or her inability to attend for duty on any day may be dismissed without notice.

[see clause 17.1.5]

[deleted]

Not allowable


Current Award

Proposed Order
Comments

18.6 Unfair dismissals

    Termination of employment by an employer shall not be harsh, unjust or unreasonable.

18.6.1 For the purpose of this clause, termination of employment shall include termination with or without notice.

18.6.2 Without limiting the above, except where distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment.

[deleted]

Not allowable

PART 5 - WAGES AND RELATED MATTERS

    

19. CLASSIFICATION AND WAGE RATES

19.1 An adult employee of a classification specified in the table hereunder (other than an apprentice or an employee in respect of whom a certificate under Section 123 of the Act is in force) shall be paid not less than the rate per week assigned to the classification for the area in which such employee is working. An employee's rate of pay is inclusive of the award rate set out in subclause 19.1 hereof and the additional allowance set out in subclause 19.2 hereof.

      Level & Classification Supp payment Arbitrated Award rate

                    per week safety net per week
                    $ $ $

      [table of wage rates not reproduced]

19.2 In addition to the wage rates set out in subclause 19.1 hereof the following additional allowances shall be paid from the first pay period after the specified date for the following classifications for all purposes of this award. Where no allowance is identified the allowance shall be discontinued:

      [table not reproduced]

18. CLASSIFICATIONS AND WAGE RATES

18.1 Wage rates

      An adult employee of a classification specified in the table hereunder (other than an apprentice or an employee in respect of whom a certificate under s.123 of the Act is in force) shall be paid not less than the rate per week assigned to the classification for the area in which such employee is working. An employee's rate of pay is inclusive of the award rate set out in clause 18.1 hereof and the additional allowance set out in clause 23.5 hereof.

      [no change to table of wage rates]

[see clause 23.5]

Item 49(8)(c)


Current Award

Proposed Order
Comments

19.3 Working across different streams

    Notwithstanding the recognition of five career path streams, such streaming does not prevent employees undertaking duties across different streams provided that where work is undertaken at a higher grade and/or at a higher rate then clause 21 applies.

[see clause 10]

  

19.4 Supplementary Payments

19.4.1 Supplementary payments prescribed in this clause are in substitution for any overaward payment as defined hereunder which would otherwise have been paid.

19.4.2 "Overaward Payment" is defined as the amount (whether it be termed "overaward payment", "attendance bonus", "service increment", or any term whatsoever) which an employee would receive in excess of the "award wage" which applied for the classification in which such employee is engaged. Provided that such payment shall exclude overtime, shift allowances, penalty rates, disability allowances, fares and travelling time allowance and any other ancillary payments of a like nature prescribed by this award.

[deleted]

Item 49(8)(d)

19.5 Arbitrated safety net adjustment

19.5.1 The rates of pay in this award include the first $8 per week arbitrated safety net adjustment payment under the September 1994 decision [Print L5300]. This first $8.00 per week arbitrated safety net adjustment may be offset to the extent of any wage increase as a result of agreements reached at enterprise level since 1 November 1991. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

[deleted]

Item 49(8)(d)


Current Award

Proposed Order
Comments

19.5.2 The rates of pay in this award include the second $8 per week arbitrated safety net adjustment payable under the September 1994 decision [Print L5300]. This second $8 per week arbitrated safety net adjustment may be offset to the extent of any wage increase payable since 1 November 1991 pursuant to certified agreements, enterprise flexibility agreements or consent awards or award variations to give effect to enterprise agreements, insofar as that wage increase has not previously been used to offset an arbitrated safety net adjustment. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

19.5.3 The rates of pay in this award include the third $8 per week arbitrated safety net adjustment payable under the September 1994 Review decision [Print L5300]. This third $8 per week arbitrated safety net adjustment may be offset to the extent of any wage increase payable since 1 November 1991 pursuant to certified agreements, enterprise flexibility agreements or consent awards or award variations to give effect to enterprise agreements, insofar as that wage increase has not previously been used to offset an arbitrated safety net adjustment. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

    19.5.4(a) The rates of pay in this award include the $10 per week arbitrated safety net adjustment payable under the Safety Net Review - Wages April 1997 decision. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agree-

[deleted]

[deleted]

18.2 Arbitrated safety net adjustment

18.2.1 The rates of pay in this award include the $10 per week arbitrated safety net adjustment payable under the Safety Net Review - Wages April 1997 decision. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to

Item 49(8)(d)

Item 49(8)(d)


Current Award

Proposed Order
Comments

        ments, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.

    19.5.4(b) Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

      certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.

18.2.2 Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

  

20. PENALTY RATES

19. PENALTY RATES

Item 49(8)(c) and (d)

20.1 Weekend penalty rates

19.1 Weekend penalty rates

  

20.1.1 All permanent employees employed as at 6 May 1993 shall be entitled to the following weekend penalty rates:

          (a) For all ordinary time worked between midnight Friday and midnight Saturday time and a half of the wages for the respective classification as at 6 May 1993 and contained in Prints K3966 and K5233 shall be paid until such amount is exceeded by time and a quarter as provided for in subclause (b) of this clause when the provision of subclause (b) shall apply;

          (b) For all ordinary time worked between midnight Saturday and midnight Sunday time and three quarters shall be paid; and

          (c) For all ordinary time worked by liquor service employees on a Sunday double time of the wages for respective classifications as at 6 May 1993 and contained in Prints K3966 and K5233 shall be paid until such amounts are exceeded by time and three quarters as provided for in subclause (b) of this clause when the provisions of subclause (b) shall apply.

      All employees other than casuals are entitled to the following weekend penalty rates:

19.1.1 for all ordinary time worked between midnight Friday and midnight Saturday - time and a quarter; and

19.1.2 for all ordinary time worked between midnight Saturday and midnight Sunday - time and three quarters.

  


Current Award

Proposed Order
Comments

20.1.2 All permanent employees who commence to be employed after the 6 May 1993 shall be entitled to the following weekend penalty rates:

      (a) For all ordinary time worked between midnight Friday and midnight Saturday time and a quarter rate shall be paid; and

      (b) For all ordinary time worked between midnight Saturday and midnight Sunday time and three quarters shall be paid.

    

20.2 Public holidays

19.2 Public holidays

  

20.2.1 Subject to subclause 34.1 of this award, all time worked by a permanent employee on a public holiday prescribed in subclause 34.1 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, permanent employees who worked on a prescribed holiday may, by agreement, perform such work at ordinary rates plus half-time additional in that week provided that equivalent paid time is 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 the employee within 28 days of such holiday falling due.

    All time worked by an employee other than a casual on a public holiday prescribed in clause 34.1 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 worked on a prescribed holiday may, by agreement, perform such work at ordinary rates plus half-time additional in that week provided that equivalent paid time is 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 the employee within 28 days of such holiday falling due.

  

20.3 Other penalty

19.3 Other penalty

  

20.3.1 A permanent employee who is required to work any of his/her ordinary hours between the hours of 7.00 p.m. and midnight Monday to Friday inclusive shall be paid an additional $1.14 per hour or any part of an hour for such time worked within the said hours with a minimum payment of $1.73 for any one day.

19.3.1 An employee other than a casual employee who is required to work any of their ordinary hours between the hours of 7.00 p.m. and midnight Monday to Friday inclusive will be paid an additional [$1.14] per hour or any part of an hour for such time worked within the said hours with a minimum payment of [$1.73] for any one day.

  

20.3.2 A permanent employee who is required to work any of his/her ordinary hours between midnight and 7.00 a.m. Monday to Friday inclusive shall be paid an additional $1.65 per hour or part of an hour for such time worked within the said hours with a minimum payment of $1.73 for any one day. For the purposes of this subparagraph midnight shall include midnight Sunday.

19.3.2 An employee other than a casual employee who is required to work any of his/her ordinary hours between midnight and 7.00 a.m. Monday to Friday inclusive will be paid an additional [$1.65] per hour or part of an hour for such time worked within the said hours with a minimum payment of [$1.73] for any one day. For the purposes of this provision midnight will include midnight Sunday.

  


Current Award

Proposed Order
Comments

20.4 Penalty rates not cumulative

    Except as provided in clause 27, 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.

19.4 Penalty rates not cumulative

    Except as provided in clause 27 - Breaks, 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.

  

21. MIXED FUNCTIONS

21.1 Except for food and beverage attendant grade 2 and 3 as defined in clause 3, an employee engaged for two or more hours of one day on duties carrying a higher rate than his or her ordinary classification shall be paid the higher rate for such day. If for less than two hours the employee shall be paid the higher rate for the time so worked.

21.2 A higher paid employee shall, when necessary, temporarily relieve a lower paid employee without loss of pay.

20. MIXED FUNCTIONS

20.1 Except for food and beverage attendant grade 2 and 3 as defined in clause 3 - Definitions, an employee engaged for two or more hours of one day on duties carrying a higher rate than his or her ordinary classification shall be paid the higher rate for such day. If for less than two hours the employee shall be paid the higher rate for the time so worked.

20.2 A higher paid employee shall, when necessary, temporarily relieve a lower paid employee without loss of pay.

  

22. PAYMENT OF WAGES

21. PAYMENT OF WAGES

Item 49(8)(c)

22.1 Except upon the termination of employment all wages including overtime shall be paid on any day other than Friday, Saturday or Sunday in each week. Notwithstanding the foregoing, by agreement between the union, the employer and the employee, in a week where a holiday occurs payment of wages may be made on Friday.

21.1 Except upon the termination of employment all wages including overtime shall be paid on any day other than Friday, Saturday or Sunday in each week. 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 Friday.

  

22.2 By agreement between the employer and the employee wages may be paid either weekly or fortnightly by one of the following means:

22.2.1 cash;

22.2.2 cheque; and

22.2.3 payment into employee's bank account by electronic funds transfer, without cost to the employee.

21.2 By agreement between the employer and the employee wages may be paid either weekly or fortnightly by one of the following means:

21.2.1 cash;

21.2.2 cheque; and

21.2.3 payment into employee's bank account by electronic funds transfer, without cost to the employee.

  

22.3 In the event of a disagreement, the union and the relevant employer organisation or other representative of the employer may be informed.

[deleted]

Item 49(8)(d)


Current Award

Proposed Order
Comments

22.4 Notwithstanding the provisions of this clause, an employer may pay an employee weekly by cash without consultation.

21.3 However, an employer may pay an employee weekly by cash without consultation.

  

22.5 Employees who are paid their wages at any time other than during their working time, shall, if kept waiting more than 15 minutes, be paid overtime rates for all such waiting time.

21.4 Employees who are paid their wages at any time other than during their working time, shall, if kept waiting more than fifteen minutes, be paid overtime rates for all such waiting time.

  

22.6 Employees whose rostered day off falls on pay day shall be paid their wages, if they so desire, before going off duty on the working day prior to their day off. Provided that this subclause shall not apply to employees paid by electronic funds transfer.

21.5 Employees whose rostered day off falls on pay day shall be paid their wages, if they so desire, before going off duty on the working day prior to their day off. Provided that this provision shall not apply to employees paid by electronic funds transfer.

  

22.7 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 moneys due shall be made at the employee's normal place of employment 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 employees shall be paid overtime rates for waiting time.

22.7.1 Provided that where an employee is dismissed for misconduct such employee shall be paid within 24 hours from the time of dismissal.

22.7.2 For the purpose of this subclause, waiting time shall mean 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 two hours and a maximum of seven hours 36 minutes per day. Notwithstanding the foregoing provisions if it is established by a Board of Reference as provided for in this award that 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.

    


Current Award

Proposed Order
Comments

22.7.3 Provided that in the case of an employee whose ordinary hours are arranged in accordance with paragraphs 26.1.1 to 26.1.3 of this award is paid average pay and who has not taken the day off or days off due to him during the working cycle in which his employment is terminated, the wages due to that employee shall include the total of credits accrued during the work cycle as mentioned in clause 26 of this award.

22.7.4 Provided further that where the employee has taken a day off during the work cycle in which his or her employment is terminated, the wages due to that employee shall be reduced by the total of credits which have not accrued during the work cycle.

    

22.8 At the time of payment of wages each employee not in receipt of taxation deduction stamps shall be issued with a statement showing gross wage, taxation deduction, net wage, and date to which payment is made.

[deleted]

Item 49(7)(a)

22.9 For the purpose of this award including overtime, weekend and public holiday penalties the hourly rates of wages shall be calculated by dividing the appropriate weekly rates provided in clause 19 of this award by 38.

[deleted]

Item 49(8)(c)

 

22. OPTION FOR ANNUALISED SALARY

22.1 As an alternative to being paid by the week according to clause 18 - 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% or more above the rate prescribed in clause 18 times 52 for the work being performed.

22.1.1 In such cases, there is no requirement under clauses 19 - Penalty rates and 28 - Overtime to pay penalty rates and overtime 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 to if all award overtime and penalty rate payment obligations had been complied with.

Item 49(8)(c)


Current Award

Proposed Order
Comments
 

22.1.2 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.

22.2 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 a day off in lieu or a day added to their annual leave entitlement.

22.3 Where payment in accordance with this clause is adopted, the employer shall keep a daily record of the hours worked by an employee which shall show the date and start and finish times of the employee for the day. The record shall be countersigned weekly by the employee and shall be kept at the place of employment for a period of at least six years.

  

23. ALLOWANCES

23. ALLOWANCES

Item 49(8)(c)

23.1 An 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 $6.44 meal money.

    23.1 Meal allowance

    23.1.1 An 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 $6.44 meal money.

  

23.2 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.

23.1.2 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.

  

23.3 An employee who has undertaken a first aid course and who is the holder of a current recognised first aid qualification such as a certificate from the St. John's Ambulance or similar body shall be paid a weekly allowance of $5.40 per week if he/she is appointed by the employer to perform first aid duty.

23.2 First aid allowance

      An employee who has undertaken a first aid course and who is the holder of a current recognised first aid qualification such as a certificate from the St. John's Ambulance or similar body shall be paid an allowance of $5.40 per week if he/she is appointed by the employer to perform first aid duty.

  


Current Award

Proposed Order
Comments
 

23.3 Clothing, equipment and tools

  

23.4 Where a Cook is required to use their own tools, an allowance of $1.50 per day or part thereof up to a maximum of $7.40 per week shall be paid.

23.3.1 Where a Cook is required to use his or her own tools, the employer must pay an allowance of $1.50 per day or part thereof up to a maximum of $7.40 per week.

  
 

23.3.2 Where the employer requires an employee to wear any special clothing such as coats, dresses, caps, aprons, cuffs and any other articles of clothing, the employer must reimburse the employee for the cost of purchasing such special clothing. The provisions of this clause do not apply where the special clothing is paid for by the employer.

  
 

23.3.3 Where the employee is responsible for laundering the special clothing the employer must reimburse the employee for the demonstrated costs of laundering it.

  
 

23.3.4 The employer and the employee may agree on an arrangement under which the employee will wash and iron the special clothing for an agreed sum of money to be paid by the employer to the employee each week. In the event of dispute as to an appropriate allowance under such an arrangement, the amount may be determined by a Board of Reference.

  
 

23.3.5 Black and white attire (not being dinner suit or evening dress), shoes, hose and/or socks is not special clothing.

  
 

23.3.6 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 to the employee at the employer's expense. Where protective clothing is supplied without cost to the employee, it will remain the property of the employer. In the event of dispute, the necessity for the provision of protective clothing may be determined by a Board of Reference.

  


Current Award

Proposed Order
Comments
 

23.3.7 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 property 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 the receipt, the employer will be entitled to deduct the value as stated on the receipt from the employee's wages.

  
 

23.3.8 In the case of genuine wear and tear, damage, loss or theft that is not the employee's fault the provisions of paragraph 23.3.7 will not apply.

  
 

23.3.9 Any disagreement concerning the value of item/s of uniform and property and any other aspect of this clause may be determined by a Board of Reference.

  
 

23.3.10 Where the employer requires an employee to provide and use any towels, tools, ropes, 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 supplies such items without cost to the employee.

  
 

23.4 Travelling allowance

23.4.1 Working late

          When an employer requires an employee to work until it is too late to travel by his or her normal method of transport home the employer must pay the cost of transport for the employee to get home free of charge. This clause does not apply where the employer provides accommodation for the employee for the night free of charge.

23.4.2 Working early

          When an employer requires an employee to start work before his or her normal starting time and before his or her normal method of transport to work is available the employer must pay the cost of transport for the employee to get to work. This clause does not apply where the employer provides transport for the employee to get to work.

  


Current Award

Proposed Order
Comments
 

23.4.3 Working away from usual place of work

      This clause applies where an employer requires an employee other than a casual to work at a place more than 80 kilometres from the employees' usual place of work. In these circumstances the employer must pay the employee an amount equal to the cost of fares reasonably spent by the employee in travelling from the employees usual place of work to the new place of work. However the employer may recover any amount paid to an employee under this clause if the employee concerned leaves his or her employment or is dismissed for misconduct within three months of receiving such a payment.

  
 

23.5 In addition to the wage rates set out in clause 18.1 hereof the following additional allowances must be paid for the following classifications for all purposes of this award:

      Classification

    Fork-lift driver $6.70
    Loading bay security officer Wrest Point Casino $11.60

Item 49(8)(c)

24. BROKEN PERIODS OF WORK

24. BROKEN PERIODS OF WORK

Item 49(8)(d)

Permanent employees who have a broken work day shall receive an additional allowance for a spread of hours as prescribed in clause 26 of this award as follows:

Employees other than casuals who have a broken work day shall receive an additional allowance for a spread of hours as prescribed in clause 26 - Hours of work of this award as follows:

  

24.1 Two hours over the hours worked in a day and up to three hours - $1.46.

24.1 Two hours over the hours worked in a day and up to three hours - $1.46.

  

24.1 Three hours over the hours worked - $2.29.

24.2 Three hours over the hours worked - $2.29.

  


Current Award

Proposed Order
Comments

25. SUPERANNUATION

25. SUPERANNUATION

  

25.1 Preamble

25.1.1 Superannuation legislation

    25.1.1(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.

    25.1.1(b) Notwithstanding 25.1.1(a) above, the following provisions shall also apply.

25.1 Preamble

25.1.1 Superannuation legislation

    25.1.1(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.

    25.1.1(b) Notwithstanding 25.1.1(a) above, the following provisions shall also apply.

  

25.2 Definitions

25.2 Definitions

  

          25.2.1(a) Subject to 25.2.1(b), the Fund for the purposes of this clause shall mean the Hospitality Industry Portable Liquor Union Superannuation Trust Deed (HOST-PLUS) and/or HOST-PLUS Queensland Trust Deed 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.

          25.2.1(b) In relation to Twin Waters Resort Pty Limited, Fund will mean either HOST-PLUS Queensland Trust Deed or Sunsuper.

          25.2.1(c) In relation to the Royal Hotel in Wyong, Fund will mean either HOST-PLUS or Mercantile Mutual Life.

          25.2.1(a) Subject to 25.2.1(b), the Fund for the purposes of this clause shall mean the Hospitality Industry Portable Liquor Union Superannuation Trust Deed (HOST-PLUS) and/or HOST-PLUS Queensland Trust Deed 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.

          25.2.1(b) In relation to Twin Waters Resort Pty Limited, Fund will mean either HOST-PLUS Queensland Trust Deed or Sunsuper.

          25.2.1(c) In relation to the Royal Hotel in Wyong, Fund will mean either HOST-PLUS or Mercantile Mutual Life.

  

25.2.2 Ordinary time earnings for the purposes of this clause, means:

      25.2.2(a) award classification rate;

      25.2.2(b) over-award payment;

25.2.2 Ordinary time earnings for the purposes of this clause, means:

      25.2.2(a) award classification rate;

      25.2.2(b) over-award payment;

  


Current Award

Proposed Order
Comments

    25.2.2(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;

    25.2.2(d) casual loading in respect to casual employees.

    25.2.2(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;

    25.2.2(d) casual loading in respect of casual employees.

  

25.2.3 Ordinary time earnings does not include bonuses, commission, payment for overtime or other extraordinary payment, remuneration or allowance.

25.2.3 Ordinary time earnings does not include bonuses, commission, payment for overtime or other extraordinary payment, remuneration or allowance.

  

25.3 Employers to become a party to the fund

25.3 Employers to become a party to the fund

  

25.3.1 A respondent 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.

25.3.1 A respondent 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.

  

25.3.2 A respondent 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.

25.3.2 A respondent 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.

  

25.3.3 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.

25.3.3 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.

  

25.4 Eligibility of employees

25.4 Eligibility of employees

  

25.4.1 Each employee shall be eligible to join the fund upon commencement of employment, subject to 25.3.1.

25.4.1 Each employee shall be eligible to join the fund upon commencement of employment, subject to 25.3.1.

  

25.4.2 Each employee shall be eligible to receive contributions from the date of eligibility, notwithstanding the date the membership application prescribed in 25.3.3 was forwarded to the fund.

25.4.2 Each employee shall be eligible to receive contributions from the date of eligibility, notwithstanding the date the membership application prescribed in 25.3.3 was forwarded to the fund.

  


Current Award

Proposed Order
Comments

25.5 Employer contributions

25.5 Employer contributions

  

25.5.1 A respondent 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 the Superannuation Guarantee Charge Act 1992 as amended from time to time:

25.5.1 A respondent 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 the Superannuation Guarantee Charge Act 1992 as amended from time to time:

  

          25.5.1(a) six per cent of ordinary time earnings on behalf of each eligible employee:

                      Ordinary time earnings

              1996/97 6%
              1997/98 6%

          25.5.1(a) Six per cent of ordinary time earnings on behalf of each eligible employee:

                      Ordinary time earnings

        1996/97 6%
        1997/98 6%

  

25.5.2 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:

      25.5.2(a) the amount of contributions to the fund shall be calculated to the nearest ten cents, any fraction below five cents shall be disregarded.

25.5.2 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 the amount of contributions to the fund shall be calculated to the nearest ten cents, any fraction below five cents shall be disregarded.

  

25.5.3 A respondent employer shall contribute to the fund:

    25.5.3(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

    25.5.3(b) equivalent monthly contributions at such other times and in such manner as may be agreed in writing between the Trustees of a fund and the employer.

    25.5.3(c) Contributions shall continue to be paid in accordance with this clause during any period in respect of which a employee is entitled to receive Accident Pay in accordance with clause 39 of this award.

25.5.3 A respondent employer shall contribute to the fund:

    25.5.3(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

    25.5.3(b) equivalent monthly contributions at such other time and in such manner as may be agreed in writing between the Trustees of a fund and the employer.

    25.5.3(c) Contributions shall continue to be paid in accordance with this clause during any period in respect of which an employee is entitled to receive accident pay in accordance with clause 37 of this award.

  


Current Award

Proposed Order
Comments

25.6 Voluntary employees contributions

25.6 Voluntary employees contributions

  

25.6.1 An employee may make contributions to the fund in addition to those made by the respondent employer under clause 25.5.

25.6.1 An employee may make contributions to the fund in addition to those made by the respondent employer under clause 25.5.

  

25.6.2 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.

25.6.2 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.

  

25.6.3 An employer who receives written authorisation from the employee, must commence making payments into the fund on behalf of the employee within fourteen days of receiving the authorisation.

25.6.3 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 authorisation.

  

25.6.4 An employee may vary his or her additional contributions by a written authorisation and the employer must alter the additional contributions within fourteen days of receiving the authorisation.

25.6.4 An employee may vary his or her additional contributions by a written authorisation and the employer must alter the additional contributions within fourteen days of receiving the authorisation.

  

25.6.5 Additional employees contributions to the fund requested under this clause shall be expressed in whole dollars.

25.6.5 Additional employees contributions to the fund requested under this clause shall be expressed in whole dollars.

  

25.6.6 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.

25.6.6 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.

  

25.7 Exemptions

25.7 Exemptions

  

          25.7.1(a) 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.

25.7.1 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.

  


Current Award

Proposed Order
Comments

    25.7.1(b) The agreement must meet the following requirements to enable the Commission to vary the award to give effect to it:

      25.7.1(b)(i) that the majority of employees covered by the agreement genuinely agree to it; and

25.7.2 The agreement must meet the following requirement to enable the Commission to vary the award to give effect to it:

    25.7.2(a) that the majority of employees covered by the agreement genuinely agree to it; and

  

                      25.7.1(b)(ii) that the fund specified is a complying fund under the Superannuation Industry (Supervision) Act 1993 (SIS).

              25.7.2(b) that the fund specified is a complying fund under the Superannuation Industry (Supervision) Act 1993 (SIS).

  

          25.7.1(c) The union must be notified of the terms of the agreement at the time it is lodged with the Commission for approval.

25.7.3 The Union must be notified of the terms of the agreement at the time it is lodged with the Commission for approval.

  

          25.7.1(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.

25.7.4 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.

  

          25.7.1(e) In the event that the ALHMWU objects to the agreement within the specified time then the matter will be set down for hearing.

25.7.5 In the event that the ALHMWU objects to the agreement within the specified time then the matter will be set down for hearing.

  

25.7.2 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".

25.7.6 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".

  

          25.7.3(a) 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.

25.7.7 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.

  

    25.7.3(b) A relevant union in this context means an organisation of employees that:

      25.7.3(b)(i) is party to this award; and

25.7.8 A relevant union in this context means an organisation of employees that:

    25.7.8(a) is party to this award; and

  


Current Award

Proposed Order
Comments

                      25.7.3(b)(ii) has one or more members employed by the employer to perform work in the relevant enterprise or workplace.

              25.7.8(b) has one or more members employed by the employer to perform work in the relevant enterprise or workplace.

  

PART 6 - HOURS OF WORK, BREAKS, OVERTIME, SHIFTWORK, WEEKEND WORK

26. HOURS OF WORK

26. HOURS OF WORK

Item 49(7)(a)
Item 49(8)(a) and (c)

26.1 The hours of all permanent full-time employees shall be an average of 38 hours per week to be worked in one of the following two ways:

26.1.1 First, at any one establishment a combination of the following methods may be worked:

        (a) a nineteen day month, of eight hours each day;

        (b) the banking of a day each month, up to a maximum of five days to be taken at a time mutually acceptable to the employer and the employee;

                (c) four days at eight hours and one of six hours;

                (d) four days at nine and a half hours per day;

                (e) five days, to be worked at a total of seven hours and 36 minutes per day;

                (f) a combination of subparagraphs (a), (b) and (c) hereof under which employees may be worked, under subparagraph (c) hereof for up to six months in any year with the balance of the period worked under subparagraphs (a) and or (b) hereof;

                (g) such method of working prescribed hours shall be determined by agreement between employer and employee. If no agreement can be reached the matter may be referred to a Board of Reference in accordance with clause 13 of this award. Whilst such Board of Reference is pending the employer may roster employees within the above scope to suit the needs of his/her operation;

26.1 The hours of work of a full-time employee are an average of 38 per week.

26.1.1 The average of 38 hours per week is to be worked in one of the following ways:

    26.1.1(a) a nineteen day month, of eight hours per day;

    26.1.1(b) four days of eight hours and one of six hours;

    26.1.1(c) four days of nine and a half hours per day;

    26.1.1(d) five days of seven hours and 36 minutes per day;

    26.1.1(e) 152 hours per each four week period;

    26.1.1(f) 160 hours per each four week period with a rostered day off; or

    26.1.1(g) any combination of the above.

26.2 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 26.1.1.

26.3 The agreed hours of work arrangement must meet the following conditions:

26.3.1 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.

26.3.2 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

  


Current Award

Proposed Order
Comments

      (h) notwithstanding the foregoing arrangements for hours of work applying to employees engaged prior to 1 April 1988 shall not be changed without the agreement of the employee or employees in question.

26.1.2 Second, by agreement between the employer and the employee and/or the State branch of the union, the arrangement of hours of work can be implemented within any one or combination of the following:

      (a) 152 hours per each four week period; or

      (b) 160 hours per each four week period, with a day banked per period up to a maximum of five.

26.1.3 Provided that where the union has not been involved in the consultation process, they should be notified by the employer in writing no less than 28 days before implementation of any agreement reached under paragraph 26.1.2.

26.2 The hours of work arrangement agreed upon in paragraph 26.1.2 hereof shall be subject to the following conditions:

26.2.1 Within a minimum of six hours and a maximum of eleven and a half hours per day and shall be exclusive of meal break intervals, subject to clause 31. Provided that where shifts of more than ten hours per day are rostered for work, employees working such hours cannot be rostered for work on more than three consecutive days without a break of at least 48 hours, and further provided that no more than eight shifts of more than ten hours can be worked in a four week period without consultation with the State branch of the union;

26.2.2 An employee shall be entitled to nine full days off per four week period; and

26.2.3 No employee shall work more than ten days in succession without a rostered day off.

26.3.3 No more than eight days of more than 10 hours may be worked in a four week period.

26.3.4 An employee must be given a minimum break of ten hours between the finish of ordinary hours of work on one day and the commencement of ordinary hours of work on the next day. In the case of a changeover of rosters the minimum break must be eight hours.

26.3.5 Where the hours of work arrangement provides for 160 hours per four week period with a rostered day off:

    26.3.5(a) No employee is to work more than ten days in a row without a rostered day off.

    26.3.5(b) Where practicable the rostered day off must be contiguous with an employee's normal days off.

    26.3.5(c) Rostered days off may be banked, up to a maximum of five days.

    26.3.5(d) An employee may elect, with the consent of the employer, to take rostered days off in part day amounts.

    26.3.5(e) 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.

    26.3.5(f) The entitlement to a rostered day on full pay is subject to the following:

                      26.3.5(f)(i) 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

                      26.3.5(f)(ii) 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.

  


Current Award

Proposed Order
Comments
 

26.4 Make-up time means an arrangement under which an employee takes time off during his or her ordinary hours of work and makes up that time later.

26.5 The employer and a majority of employees in a workplace may agree to introduce make-up time subject to the following conditions:

26.5.1 If an employer intends to introduce make-up time 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 make-up time.

26.5.2 After the employer and a majority of employees have agreed to introduce make-up time an employee may elect, with the consent of his or her employer, to work make-up time.

26.5.3 Make-up time arrangements must comply with the conditions set out in clauses 19 - Penalty rates, 26.3 and 27 - Breaks.

26.5.4 The employer must record make-up time arrangements in the time and wages records kept pursuant to Division 1 of Part 9A of the Workplace Relations Regulations.

26.6 Any disputes in relation to the practical application of this clause may be dealt with in accordance with clause 11 - Procedure to avoid industrial disputation, or by the establishment of a Board of Reference under s.133 of the Act.

  

26.3 Spread of hours

            Where broken shifts are worked the spread of hours shall not exceed the ordinary hours by more than a total of two hours within the metropolitan area of Sydney, Melbourne and Hobart and three hours in areas outside of the aforesaid metropolitan areas provided that by agreement between the union and an employer the spread of hours shall not exceed the ordinary hours by more than a total of three hours within the metropolitan areas of Sydney, Melbourne and Hobart and four hours in remote or resort areas and provided further that no spread of hours shall be greater than twelve hours per day.

26.7 Spread of hours

            Where broken shifts are worked the spread of hours can be no greater than twelve hours per day.

  


Current Award

Proposed Order
Comments

26.4 Minimum break between shift

    The roster for all permanent employees shall provide for a minimum of ten hours 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 shall be substituted for ten hours.

26.8 Minimum break between shift

    The roster for all employees other than casuals will provide for a minimum ten 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 ten hours.

  

26.5 Wage entitlements

26.5.1 Employees shall be entitled to a week's wages in accordance with clause 19 of this award for each week of work.

26.5.2 Notwithstanding the provisions of this subclause, an employer may, subject to agreement with the State branch of the union, pay wages fortnightly according to the actual hours worked in that fortnightly pay period.

[see clause 21]

  

26.6 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.

[deleted]

Item 49(8)(c)

26.7 Payday

      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.

[see clause 21]

Item 49(8)(c) and (d)

26.8 Special provisions for 38 hour week

        In relation to paragraph 26.1.1 hereof an employee shall be entitled to two full days off each week.

[deleted]

Item 49(8)(c)


Current Award

Proposed Order
Comments

26.9 Special provisions for nineteen day month

26.9.1 Where the method of implementation of the 38 hour week is that set out in subparagraph 26.1.1(a) hereof days off shall be by rostering where practicable so this rostered day off in each four week cycle is contiguous with normal rostered day or days off.

26.9.2 Where such rostered day off falls on a public holiday the following day may be taken where practicable in lieu thereof.

26.9.3 The entitlement to a rostered day off on full pay is subject to the following:

      (a) Each day of paid leave (not including annual leave and long service leave) and any public holiday occurring during any cycle of four weeks shall be regarded as a day worked for accrual purposes;

      (b) An employee who has not worked a complete four week cycle in order to accrue a rostered day off shall be paid a pro rata amount for credits accrued for each day worked in such cycle payable for the rostered day off (i.e. an amount of 24 minutes for each eight hour day worked or two hours for each 40 hours worked); and

      (c) For the purpose of this sub-paragraph "worked" includes paid leave referred to in subparagraph 26.9.3(a) hereof.

[see clause 26.3.5]

  

26.10 Special provisions for banking of days

26.10.1 Where a rostered day off which has resulted from the method of implementation of the 38 hour week set out in subparagraph 26.1.1(b) hereof falls on a public holiday, the following day may be taken where practicable in lieu thereof.

26.10.2 Each day of paid leave taken (not including annual leave, long service leave and periods of worker's compensation) and any public holiday occurring during any cycle of four weeks shall be regarded as a day worked for accrual purposes.

[see clause 26.3.5(e)]

[see clause 26.3.5(f)]

  


Current Award

Proposed Order
Comments

27. BREAKS

27. BREAKS

Item 49(8)(c)

27.1 An employee who, pursuant to appendix A, is entitled to a paid rest pause 20 minutes duration after every hour of work shall have one of the paid rest pauses treated as the full shift meal break for the purpose of this clause.

27.1 If an employee, including a casual employee, is required to work for five or more hours in a day he or she must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.

  

27.2 Each employee shall be granted a meal interval of not less than 30 minutes to be commenced after completing not less than one hour and not later than six hours of duty. Provided that where it is not possible to grant the meal interval on any day, the said meal interval shall be treated as time worked and be paid at the rate of the day plus half-time additional at the ordinary weekly rate until released for a meal. Provided further where an employee is required to work in excess of five hours after the first meal interval he/she shall be granted a further meal interval of twenty minutes to be treated as time worked.

27.2 If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.

27.3 If an employee is not given the unpaid meal break at the time the employer has told him/her it will be given, the employer must pay the employee an extra hourly or part thereof payment at the rate of 0.5 of the ordinary hourly rate from the time the meal break was to commence until either the meal break is given or the shift ends.

  

27.3 Where a rostered meal break requires an employee to work for more than five hours before such meal break, then an employee shall be allowed a twenty minute break without loss of pay during such work period at a time suitable to the employer between two and five hours worked.

27.3.1 If clause 27.3 does not apply and an employee is not given a meal break in accordance with clause 27.1 the employer must pay the employee an extra hourly or part thereof payment at the rate of 0.5 of the ordinary hourly rate from the end of six hours until either the meal break is given or the shift ends.

27.4 If an employee is required to work more than five hours after he or she is given the unpaid meal break, he or she must be given an additional 20 minute paid break.

  

27.4 Notwithstanding the provisions of subclause 27.2 hereof, employees rostered to work more than ten ordinary hours in a shift shall be entitled to two paid twenty minute rest breaks in addition to an unpaid meal break of at least half an hour. In rostering for these breaks, the employer shall make all reasonable efforts to provide these breaks at a time which gives the employee an even mix of work time and breaks.

27.5 If a full-time or regular part-time employee is required to work more than ten ordinary hours in the day, he or she will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks.

27.6 If an employee is required to work more than two hours' overtime after completion of the employee's rostered hours, he or she must be given an additional 20 minute paid break.

  


Current Award

Proposed Order
Comments

27.5 Where an employee is required to work overtime and such overtime follows the completion of the employee's normal hours of work a twenty minute paid meal break shall be allowed where such overtime exceeds two hours work.

27.7 An employee who, pursuant to Appendix A, is entitled to a paid rest pause 20 minutes duration after every hour of work may have one of the paid rest pauses treated as the full shift meal break for the purpose of this clause.

  

27.6 Notwithstanding the other provisions of this award the meal periods for gaming staff at Wrest Point Casino Hotel and Launceston Country Club shall be as agreed between the State branch of the union and the respective employer.

27.8 Despite the other provisions of this award, the meal periods for gaming staff at Wrest Point Casino Hotel and Launceston Country Club will be as agreed between the State branch of the Union and the respective employer.

  

28. OVERTIME

28. OVERTIME

Item 49(8)(c)

28.1 Reasonable Overtime

        An employer may require an employee - other than a casual employee - to work reasonable overtime at overtime rates. An employer must, if practicable, offer his or her employees the opportunity to work overtime in preference to employing casuals.

28.1 Reasonable overtime

        An employer may require an employee, other than a casual employee, to work reasonable overtime at overtime rates.

[second sentence deleted]

Not allowable

28.2 When is an employee paid at overtime rates?

        An employee - other than a casual employee - is paid at overtime rates for any work done outside of the spread of hours or rostered hours set out in clause 26.

28.2 When is an employee paid at overtime rates?

28.2.1 A full-time employee is paid at overtime rates for any work done outside of the spread of hours or rostered hours set out in clause 26 - Hours of work.

28.2.2 A regular part-time employee is paid at overtime rates in the circumstances specified in clause 15.3.7.

  

28.3 What are overtime rates?

        The overtime rate payable to an employee depends on the time at which the overtime is worked.

      · Monday to Friday:

        - one and a half times his or her normal rate of pay for the first two hours of overtime; and

        - twice his or her normal rate of pay for the rest of the overtime.

28.3 What are overtime rates?

    The overtime rate payable to an employee depends on the time at which the overtime is worked.

28.3.1 Monday to Friday: one and a half times his or her normal rate of pay for the first two hours of overtime; and twice his or her normal rate of pay for the rest of the overtime.

28.3.2 Between midnight Friday and midnight Sunday: twice his or her normal rate of pay for any work done.

  


Current Award

Proposed Order
Comments

      · Between midnight Friday and midnight Sunday:

          - twice his or her normal rate of pay for any work done.

      · On a rostered day off:

                - twice his or her normal rate of pay for any work done; and

                - he or she must be paid for at least four hours even if he or she works for less than four hours.

    The four hour minimum payment does not apply

      · to work which is part of the normal roster which began the day before the rostered day off; or

      · when overtime worked is continuous from the previous day's duty.

For example: Julie is a full time employee. Her ordinary rate of pay is $10 per hour. She normally works eight hours per day Monday to Friday. On Tuesday she works 11 hours.

Julie's pay = (8 hours at normal rate) + (3 hours of overtime)

        = (8 x $10) + (2 x $15 + 1 x $20)

        = $80 + ($30 + $20)

        = $80 + $50

        = $130

      · Between midnight Friday and midnight Sunday:

        - twice his or her normal rate of pay for any work done.

      · On a rostered day off:

        - twice his or her normal rate of pay for any work done; and

        - he or she must be paid for at least four hours even if he or she works for less than four hours.

28.3.3 On a rostered day off: twice his or her normal rate of pay for any work done. He or she must be paid for at least four hours even if he or she works for less than four hours.

28.3.4 The four hour minimum payment does not apply to work which is part of the normal roster which began the day before the rostered day off; or when overtime worked is continuous from the previous day's duty.

For example: Julie is a full-time employee. Her ordinary rate of pay is $10 per hour. She normally works eight hours per day Monday to Friday. On Tuesday she works 11 hours.

                      Julie's pay = (8 hours at normal rate) + (3 hours of overtime)
                      = (8 hours x $10) + (2 hours x $15) + (1 hour x $20)
                      = $80 + ($30 + $20)
                      = $80 + $50
                      = $130

For example: John is asked to work on his rostered day off from 8 a.m. to 11 a.m. He is normally paid $10 per hour. John has worked 3 hours but must be paid for at least four.

              John's pay = $20 x 4

                    = $80

    The four hour minimum payment does not apply to work:

  


Current Award

Proposed Order
Comments

For example: John is asked to work on his rostered day off from 8am to 11am.

He is normally paid $10 per hour.John has worked 3 hours but must be paid for at least four.

John's pay = $20 x 4

        = $80

The four hour minimum payment does not apply to work:

    - which is part of the normal roster which began the day before the rostered day off; or

    - when overtime worked is continuous from the previous day's duty.

        - which is part of the normal roster which began the day before the rostered day off; or

        - when overtime worked is continuous from the previous day's duty.

  

28.4 Overtime Stands Alone

    Overtime worked on any day stands alone.

For example: Jenny is a full time employee. Her ordinary rate of pay is $10 per hour. She works 2 hours overtime on Monday and one hour overtime on Tuesday.

Jenny's pay = Monday = (8 hours at normal rate) + (2 hours of overtime)

                      = (8 x $10) + (2 x $15)
                      = $80 + $30
                      = $110
                      Tuesday = (8 hours at normal rate) + (1 hour of overtime)
                      = (8 x $10) + (1 x $15)
                      = $80 + $15
                      = $95

You do not treat the one hour of overtime worked on Tuesday as the third hour of overtime. It is paid at one and a half times her normal rate of pay not twice her normal rate of pay. This is because overtime worked on any day stands alone.

28.4 Overtime stands alone

    Overtime worked on any day stands alone.

For example: Jenny is a full-time employee. Her ordinary rate of pay is $10 per hour. She works 2 hours overtime on Monday and one hour overtime on Tuesday.

          Jenny's pay

                      Monday = (8 hours at normal rate) + (2 hours of overtime)
                      = (8 hours x $10) + (2 hours x $15)
                      = $80 + $30
                      = $110

                      Tuesday = (8 hours at normal rate) + (1 hour of overtime)
                      = (8 hour x $10) + (1 hour x $15)
                      = $80 + $15
                      = $95

                      You do not treat the one hour of overtime worked on Tuesday as the third hour of overtime. It is paid at one and a half times her normal rate of pay not twice her normal rate of pay. This is because overtime worked on any day stands alone.

  


Current Award

Proposed Order
Comments

28.5 Does an employee get a break after working overtime?

    If starting work at the employees next rostered starting time would mean that the employee did not receive a full 10 hour break then either:

      · the employee may - without loss of pay - start work at such a later time as is necessary to ensure that he or she receives a break of at least 10 hours; or

      · the employer must pay the employee overtime rates for all work performed until the employee has received a break of at least 10 hours.

For example: George normally works from 9am to 6pm Monday to Friday. On Tuesday he works overtime until midnight.

If George's employer wants him to start work at 9am on Wednesday then George must be paid at overtime rates until he has received a break from work of at least 10 hours.

Alternatively George could start work at 10am on Wednesday and work until his normal finishing time of 6pm. George would then receive his normal day's pay even though he has worked one hour less.

28.5 Does an employee get a break after working overtime?

    If starting work at the employee's next rostered starting time would mean that the employee did not receive a full ten hour break then either: the employee may - without loss of pay - start work at such a later time as is necessary to ensure that he or she receives a break of at least ten hours; or the employer must pay the employee overtime rates for all work performed until the employee has received a break of at least ten hours.

For example: George normally works from 9 a.m. to 6 p.m. Monday to Friday. On Tuesday he works overtime until midnight. If George's employer wants him to start work at 9 a.m. on Wednesday then George must be paid at overtime rates until he has received a break from work of at least 10 hours. Alternatively George could start work at 10 a.m. on Wednesday and work until his normal finishing time of 6p.m. George would then receive his normal day's pay even though he has worked one hour less.

  

28.6 Where employees swap shifts

    If the employee has swapped a shift with another employee which would mean that the employee cannot receive at least 10 hours break before their next rostered start time then either:

      · the employee may - without loss of pay - start work at such a later time as is necessary to ensure that he or she receives a break of at least 8 hours; or

      · the employer must pay the employee overtime rates for all work performed until the employee has received a break of a least 8 hours.

28.6 Where employees swap shifts

      If the employee has swapped a shift with another employee which would mean that the employee cannot receive at least ten hours break before their next rostered start time then either:

28.6.1 the employee may, without loss of pay, start work at such a later time as is necessary to ensure that he or she receives a break of at least eight hours; or

28.6.2 the employer must pay the employee overtime rates for all work performed until the employee has received a break of a least eight hours.

  


Current Award

Proposed Order
Comments

28.7 Time off instead of payment for overtime

    Despite subclause 28.2 an employee may choose, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer. This agreement must be in writing. The employee must take the time off within four weeks of working the overtime.

    If an employee takes time off instead of payment for overtime then the amount of time off is to be equivalent to the pay the employee would have otherwise received for working the overtime.

    If requested by an employee an employer must within one week of receiving a request pay the employee for any overtime worked. The employee must be paid at overtime rates.

For example: Jodie is a full time employee. Her ordinary rate of pay is $10 per hour. She works three hours overtime on Wednesday.

Jodie's pay = (8 hours at normal rate) + (3 hours overtime)

        = (8 hours) + (2 x 1.5 + 1 x 2)

        = 8 + 5

        = 13 hours pay

Jodie's employer must give her 13 hours pay. Alternatively Jodie and her employer may agree, in writing, to Jodie taking some or all of her `13 hours pay' as time off instead. They may agree that Jodie will use eight hours to take a day off and be paid the rest of her overtime - five hours pay.

28.7 Time off instead of payment for overtime

28.7.1 Despite clause 28.1 an employee may choose, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer. This agreement must be in writing. The employee must take the time off within four weeks of working the overtime.

28.7.2 If an employee takes time off instead of payment for overtime then the amount of time off is to be equivalent to the pay the employee would have otherwise received for working the overtime.

28.7.3 If requested by an employee an employer must within one week of receiving a request pay the employee for any overtime worked. The employee must be paid at overtime rates.

For example: Jodie is a full-time employee. Her ordinary rate of pay is $10 per hour. She works three hours overtime on Wednesday.

              Jodie's pay = (8 hours at normal rate) + (3 hours overtime)

                    = (8 hours) + (2 hours x 1.5) + (1 hour x 2)
                    = 8 + (3 + 2)
                    = 13 hours pay

                      Jodie's employer must give her 13 hours pay. Alternatively Jodie and her employer may agree, in writing, to Jodie taking some or all of her '13 hours pay' as time off instead. They may agree that Jodie will use eight hours to take a day off and be paid the rest of her overtime - five hours pay.

  

29. ROSTER

29. ROSTER

Item 49(7)(a)
Item 49(8)(c)

29.1 A roster for all permanent employees showing normal starting and finishing times and the name of each employee shall be prepared by the employer and shall be posted in a conspicuous place or places accessible to the employees concerned.

29.1 A roster for full-time and regular part-time employees showing normal starting and finishing times and the name of each employee shall be prepared by the employer and shall be posted in a conspicuous place accessible to the employees concerned.

  


Current Award

Proposed Order
Comments

29.2 In the case of employees working under paragraph 26.1.1 the roster shall be alterable by mutual consent at any time or by amendment of the roster on seven days notice. Where practicable two weeks notice of rostered day or days off shall be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control.

29.2 The roster shall be alterable by mutual consent at any time or by amendment of the roster on seven days notice. Where practicable two weeks notice of rostered day or days off should be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control.

  

29.3 In the case of employees working under paragraph 26.1.2 the roster shall be alterable by mutual consent at any time or by amendment of the roster on fourteen days' notice. Where practicable three weeks' notice of rostered day or days off shall be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control.

[deleted]

  

PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS

30. ANNUAL LEAVE

30. ANNUAL LEAVE

Item 49(8)(c)

30.1 When can an employee get annual leave?

    The employer must grant an employee annual leave after the employee has been in continuous service for at least 12 months. Annual leave counts as time worked for calculating the 12 months' continuous service after the first year.

30.1 How long is annual leave?

    An employee other than a casual employee is entitled to at least four weeks annual leave after every twelve months continuous service.

30.2 What are the pay rates for annual leave?

    The pay rate for annual leave is the employee's pay rate at the time the employee takes the annual leave, plus 17.5 per cent of that rate. Current pay rates are in clause 18.

30.3 When to take annual leave

    An employee may take annual leave at a time agreed with the employer within twelve months of accrual, unless alternative arrangements are agreed.

  

30.2 How long is annual leave?

      The employer must grant an employee at least four weeks annual leave after every 12 months continuous service.

    

30.3 What are the pay rates for annual leave?

      The pay rate for annual leave is the employee's pay rate at the time the employee takes the annual leave, plus 17.5 per cent of that rate. Current pay rates are in clause 19.

    


Current Award

Proposed Order
Comments

30.4 When to take annual leave

    An employee must be allowed to take annual leave within four months after it is due. In the alternative the employee may agree to extend this period up to 12 months.

30.4 How much notice?

    The employer and employee shall seek to reach agreement on the taking of annual leave at a mutually convenient time. In the absence of agreement the employer may give at least fourteen days notice of the commencement of leave or part of leave which is due to the employee.

  

30.5 How much notice?

      The employer and employee shall seek to reach agreement on the taking of annual leave at a mutually convenient time. In the absence of agreement the employer may give at least 14 days notice of the commencement of leave or part of leave which is due to the employee.

30.5 Payment instead of leave

      An employee must take annual leave. However, if the employee leaves or is dismissed, the employer must pay the employee any leave entitlement including a proportionate amount for each full month worked since the employee began working or last qualified for leave. Such pro rata annual leave pay does not include leave loading.

  

30.6 Payment instead of leave

      An employee must take annual leave unless:

      · the employer pays the employee a proportionate amount on termination or resignation under subclause 30.7;

      · the employee chooses payment instead of a public holiday under clause 30.8.

    

30.7 Proportionate pay

      If the employee leaves or is dismissed, the employer must pay the employee one twelfth of four weeks pay at award rates for each full month the employee has worked since she or he last qualified for leave.

      If the employee hasn't qualified for leave yet, the employer must pay him or her a proportionate amount for each full month worked since the employee began working.

      Proportionate pay does not include leave loading.

[see clause 30.5]

  


Current Award

Proposed Order
Comments

30.8 Public holidays falling within annual leave

30.8.1 If a public holiday falls within an employee's annual leave, is prescribed in the award, and is on a day which would have been an ordinary working day, then:

              · extra time equivalent to the public holiday is added to the employee's annual leave; or

              · the employee can choose to be paid for the public holiday instead of having the extra time.

30.8.2 The employee won't receive any pay for the public holiday unless:

              · the employee starts work at the next rostered starting time on the first working day after his or her annual leave ends; or

      · the employee has a reasonable cause for starting late.

30.6 Public holidays falling within annual leave

30.6.1 If a public holiday falls within an employee's annual leave, is prescribed in the award, and is on a day which would have been an ordinary working day, then:

                · extra time equivalent to the public holiday is added to the employee's annual leave; or

                · the employee can choose to be paid for the public holiday instead of having the extra time.

30.6.2 The employee won't receive any pay for the public holiday unless:

                · the employee starts work at the next rostered starting time on the first working day after his or her annual leave ends; or

                · the employee has a reasonable cause for starting late.

  

30.9 What if a new employer takes over the business?

      If a new employer takes over the business from the current employer (as a successor, assignee or transmittee), then employees will be treated as through they have been working for the same employer for the whole time. This means that the new employer will be responsible for any annual leave or proportionate pay which employees have earned while working for the current employer.

[see clause 6]

  

30.10 What does not break the continuous service?

30.10.1 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 leave was reasonable.

[see clause 3.8.3]

  


Current Award

Proposed Order
Comments

30.10.2 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.

    

30.11 How other absence may lead to a break in continuous service?

      Any other absence from work does not break continuity of service unless the employer notifies the employee within 14 days of the employee returning to work after the absence. The employer must tell the employee in writing.

    

30.12 Absence by individual

      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.

    

30.13 Absence by a group

      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.

    

30.14 Which absences are counted as time worked?

30.14.1 In calculating the 12 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.

    


Current Award

Proposed Order
Comments

30.14.2 Where a period of work is less than 12 months, the absences counted as time worked because of sickness or accident are calculated on a proportionate basis.

    

31. SICK LEAVE

31. PERSONAL LEAVE

Item 49(8)(c)

[not set out - see Hospitality Award]

31.1 Amount of paid personal leave

  
 

31.1.1 Paid personal leave is available to an employee when he or she is absent due to:

      · personal illness or injury (sick leave); or

      · for the purposes of caring for an immediate family or household member that is sick and requires the employee's care and support (carer's leave); or

      · because of bereavement on the death of an immediate family or household member (bereavement leave).

  
 

31.1.2 The amount of personal leave to which an employee is entitled depends on how long he or she has worked for the employer and accrues as follows:

  
 

        Length of time worked for the employer Personal leave

            (hours)

        Less than 1 month 16
        1 month to less than 3 months 32
        3 months to less than 6 months 48
        6 months to less than 12 months 92
        Each year thereafter 92

  
 

31.1.3 In any year unused personal leave accrues by the lesser of:

    31.1.3(a) 76 hours less the number of hours of sick leave taken during the year; or

    31.1.3(b) the balance of the year's unused personal leave.

  
 

31.1.4 Personal leave may accumulate to a maximum of 760 hours.

  


Current Award

Proposed Order
Comments
 

31.2 Immediate family or household

  
 

31.2.1 The entitlement to carer's or bereavement leave is subject to the person in respect of whom the leave is taken being either:

    31.2.1(a) a member of the employee's immediate family; or

    31.2.1(b) a member of the employee's household.

  
 

31.2.2 The term immediate family includes:

    31.2.2(a) spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and

    31.2.2(b) child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.

  
 

31.3 Sick leave

  
 

31.3.1 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.

  
 

31.3.2 Entitlement

    31.3.2(a) The amount of personal leave an employee may take as sick leave depends on how long he or she has worked for the employer and accrues as follows:

  
 

          Length of time worked for Rate of accrual of paid

              the employer sick leave

              (hours)

          Less than 1 month 0
          1 month to less than 3 months 16
          3 months to less than 6 months 32
          6 months to less than 12 months 76
          Each year thereafter 76

  
 

    31.3.2(b) After the first six months of service, an employee must be paid for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours.

    31.3.2(c) Accumulated personal leave may be used as sick leave if the current sick leave entitlement is exhausted.

  
 

31.3.3 Employee must give notice

    31.3.3(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.

    31.3.3(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.

    31.3.3(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.

  
 

31.3.4 Evidence supporting claim

      The employee must, if required by the employer, establish by production of a medical certificate or statutory declaration, that the employee was unable to work because of injury or personal illness.

  


Current Award

Proposed Order
Comments
 

31.3.5 The effect of workers' compensation

      If an employee is receiving workers' compensation payments, he or she is not entitled to sick leave.

  
 

31.4 Bereavement leave

  
 

31.4.1 Paid leave entitlement

      An employee other than a casual is entitled to use up to two days personal leave as bereavement leave on any occasion on which a member of the employee's immediate family or household in Australia dies.

  
 

31.4.2 Unpaid leave entitlement

      Where an employee has exhausted all personal leave entitlements, including accumulated entitlements, he or she is entitled to up to two days unpaid bereavement leave.

  
 

31.4.3 Evidence supporting claim

      The employer may require the employee to provide satisfactory evidence of the death of the member of the employee's immediate family or household.

  
 

31.5 Carer's leave

  
 

31.5.1 Paid leave entitlement

      An employee other than a casual is entitled to use up to 40 hours personal leave each year to care for members of his or her immediate family or household who are sick and require care and support. This entitlement is subject to the employee being responsible for the care and support of the person concerned. In normal circumstances an employee is not entitled to take carer's leave where another person has taken leave to care for the same person.

  


Current Award

Proposed Order
Comments
 

31.5.2 Notice required

    31.5.2(a) Before taking carer's 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.

    31.5.2(b) The notice must include:

      · the name of the person requiring care and support and his or her relationship to the employee;

      · the reasons for taking such leave; and

      · the estimated length of absence.

31.5.2(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.

  
 

31.5.3 Evidence supporting claim

      The employee must, if required by the employer, establish 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.

  
 

31.5.4 Unpaid leave

      An employee may take unpaid carer's leave by agreement with the employer.

  

32. BEREAVEMENT LEAVE

[not set out, see Hospitality Award]

[see clause 31.4]

  


Current Award

Proposed Order
Comments

33. PARENTAL LEAVE

32. PARENTAL LEAVE

Item 49(8)(c)

[not set out, see Hospitality Award]

This clause will only apply to employees who are employed by employers who are members of the Australian Hotels Association or the Motor Inn, Motel and Accommodation Association as at 23 June 1995.

Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.

  
 

32.1 Definitions

  
 

32.1.1 For the purpose of this clause child means a child of the employee under the age of one year except for adoption of a child where child means a person under the age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.

  
 

32.2 Basic entitlement

  
 

32.2.1 After twelve months continuous service, parents are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for males, paternity leave may be taken. Adoption leave may be taken in the case of adoption.

32.2.2 Parental leave is to be available to only one parent at a time, except that both parents may simultaneously access the leave in the following circumstances:

    32.2.2(a) for maternity and paternity leave, an unbroken period of one week at the time of the birth of the child;

    32.2.2(b) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.

  


Current Award

Proposed Order
Comments
 

32.3 Maternity leave

  
 

32.3.1 An employee will provide to the employer at least ten weeks in advance of the expected date of commencement of parental leave:

    32.3.1(a) a certificate from a registered medical practitioner stating that she is pregnant and the expected date of confinement;

    32.3.1(b) written notification of the date on which she proposes to commence maternity leave, and the period of leave to be taken; and

    32.3.1(c) a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment.

32.3.2 Subject to clause 32.2.1 and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of the birth.

32.3.3 Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.

  
 

32.3.4 Where the pregnancy of an employee terminates after 27 weeks and the employee has not commenced maternity leave, the employee may take unpaid special maternity leave of such period as a registered medical practitioner certifies as necessary, except that where an employee is suffering from an illness not related to the direct consequences of the birth, an employee may be entitled to paid sick leave in lieu of, or in addition to, special maternity leave.

  


Current Award

Proposed Order
Comments
 

32.3.5 Where leave is granted under clause 32.3.4, during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that time does not exceed four weeks from the recommencement date desired by the employee.

  
 

32.4 Paternity leave

  
 

    An employee will provide to the employer at least ten weeks prior to each proposed period of paternity leave, with:

32.4.1 a certificate from a registered medical practitioner which names his spouse, states that she is pregnant and the expected dated of confinement, or states the date on which the birth took place; and

32.4.2 written notification of the dates on which he proposes to start and finish the period of paternity leave; and

32.4.3 a statutory declaration stating:

32.4.3(a) he will take that period of paternity leave to become the primary care-giver of a child;

          32.4.3(b) particulars of any period of maternity leave sought or taken by his spouse; and

          32.4.3(c) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment.

  
 

32.5 Adoption leave

  
 

32.5.1 The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier.

32.5.2 Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:

  


Current Award

Proposed Order
Comments
 

    32.5.2(a) the employee is seeking adoption leave to become the primary care-giver of the child;

    32.5.2(b) particulars of any period of adoption leave sought or taken by the employee's spouse; and

    32.5.2(c) that for the period of adoption leave the employee will not engage in any conduct inconsistent with their contract of employment.

32.5.3 An employer may require an employee to provide confirmation from the appropriate government authority of the placement.

  
 

32.5.4 Where the placement of child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee's return to work.

  
 

32.6 Variation of period of parental leave

  
 

    Unless agreed otherwise between the employer and employee, an employee may apply to their employer to change the period of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencement of the changed arrangements.

 
 

32.7 Parental leave and other entitlements

  
 

    An employee may in lieu of or in conjunction with parental leave, access other paid leave entitlements which they have accrued, such as annual leave or long service leave, subject to the total amount of leave not exceeding 52 weeks.

  


Current Award

Proposed Order
Comments
 

32.8 Transfer to a safe job

  
 

32.8.1 Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.

  
 

32.8.2 If the transfer to a safe job is not practicable, the employee may elect, or the employer may require the employee, to commence parental leave.

  
 

32.9 Returning to work after a period of parental leave

  
 

32.9.1 An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.

  
 

32.9.2 An employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to clause 32.8, the employee will be entitled to return to the position they held immediately before such transfer.

  
 

32.9.3 Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position as nearly comparable in status and pay to that of their former position.

  
 

32.10 Replacement employees

  
 

32.10.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.

  
 

32.10.2 A replacement employee will be informed of the temporary nature of the employment and of the rights of the employee who is being replaced.

  


Current Award

Proposed Order
Comments

33A. PERSONAL/CARER'S LEAVE

[not set out, see Hospitality Award]

[see clause 31]

  

33B JURY SERVICE

33. JURY SERVICE

Item 49(8)(c)

33B.1.1 An employee on weekly or part-time weekly hiring required to attend for jury service during his/her ordinary working hours shall be reimbursed by the employer an amount equal to the difference between the amount paid in respect of his/her attendance for such jury service and the amount of ordinary wage he/she would have received Monday to Friday in respect of the ordinary time he/she would have worked had he/she not been on jury service.

33.1 An employee other than a casual employee required to attend for jury service during their ordinary working hours will 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 the 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.

  

33B.1.2 An employee shall notify the employer as soon as possible for the date upon which they are required to attend for jury service.

33.2 An employee shall notify the employer as soon as possible for the date upon which they are required to attend for jury service.

  

33B.1.3 Further, the employee shall give the employer proof of attendance, the duration of such attendance and the amount paid in respect of such jury service.

33.3 Further, the employee shall give the employer proof of attendance, the duration of such attendance and the amount paid in respect of such jury service.

  

34. PUBLIC HOLIDAYS

34. PUBLIC HOLIDAYS

  

34.1 Permanent employees, shall be entitled to the following holidays without loss of pay:

      New South Wales Victoria

      New Year's Day New Year's Day
      Australia Day Australia Day
      Good Friday Good Friday
      Easter Saturday Easter Saturday
      Easter Monday Easter Monday
      Anzac Day Anzac Day
      Sovereign's Birthday Sovereign's Birthday
      Labour Day Labour Day
      Union Picnic Day Union Picnic Day
      Christmas Day Christmas Day
      Boxing Day Boxing Day

34.1 Employees, other than casuals, shall be entitled to the following holidays without loss of pay:

      New South Wales Victoria

      New Year's Day New Year's Day
      Australia Day Australia Day
      Good Friday Good Friday
      Easter Saturday Easter Saturday
      Easter Monday Easter Monday
      Anzac Day Anzac Day
      Sovereign's Birthday Sovereign's Birthday
      Labour Day Labour Day
      Union Picnic Day Union Picnic Day
      Christmas Day Christmas Day
      Boxing Day Boxing Day

  


Current Award

Proposed Order
Comments

      Queensland Tasmania

      New Year's Day New Year's Day
      Australia Day Australia Day
      Good Friday Good Friday
      Easter Saturday Easter Saturday
      Easter Monday Easter Monday
      Anzac Day Anzac Day
      Sovereign's Birthday Sovereign's Birthday
      Labour Day Labour Day
      Exhibition Day union Picnic Day
      Christmas Day Christmas Day
      Boxing Day Boxing Day

      or such other day as is generally observed in the locality as a substitute for any of the said days respectively:

      Queensland Tasmania

      New Year's Day New Year's Day
      Australia Day Australia Day
      Good Friday Good Friday
      Easter Saturday Easter Saturday
      Easter Monday Easter Monday
      Anzac Day Anzac Day
      Sovereign's Birthday Sovereign's Birthday
      Labour Day Labour Day
      Exhibition Day Union Picnic Day
      Christmas Day Christmas Day
      Boxing Day Boxing Day

      or such other day as is generally observed in the locality as a substitute for any of the said days respectively:

  

34.1.1 In Southern Tasmania union Picnic Day shall be observed on Regatta Day. For the purpose of this subclause Southern Tasmania includes Oatlands and all towns south of Oatlands but excluding areas excluded in the State Proclamation regarding this day;

    34.1.1 In Southern Tasmania union Picnic Day shall be observed on Regatta Day. For the purpose of this clause Southern Tasmania includes Oatlands and all towns south of Oatlands but excluding areas excluded in the State Proclamation regarding this day;

  

34.1.2 In Northern Tasmania union Picnic Day shall be observed on Recreation Day which is the 1st Monday in November of each year. For the purpose of this subclause Northern Tasmania includes all towns north of Oatlands.

    34.1.2 In Northern Tasmania Union Picnic Day shall be observed on Recreation Day which is the 1st Monday in November of each year. For the purpose of this clause Northern Tasmania includes all towns north of Oatlands.

  

34.2 An employee in the employ of one employer shall not be entitled to receive in any one calendar year both days as union Picnic Day Holidays, but shall only be entitled to one of them.

    34.2 An employee in the employ of one employer shall not be entitled to receive in any one calendar year both days as Union Picnic Day holidays, but shall only be entitled to one of them.

  

34.3 Payment for work performed on a public holiday prescribed in subclause 34.1 hereof shall be in accordance with subclause 20.2.

    34.3 Payment for work performed on a public holiday prescribed in clause 34.1 hereof shall be in accordance with clause 19.2.

  


Current Award

Proposed Order
Comments

34.4 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.

34.4 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.

  

34.5 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 the 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 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. (The insertion of this provision shall not of itself prejudice the right of the Union to make application for variation of this award in respect to Easter Saturday).

    34.5 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 the 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 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. (The insertion of this provision shall not of itself prejudice the right of the Union to make application for variation of this award in respect to Easter Saturday).

  

34.6 Where an employee's rostered day or days off coincide 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:

34.6.1 one day with pay added to the annual leave;

34.6.2 payment of one day's pay shall be made to the employee on the next succeeding pay day;

34.6.3 such holiday may be allowed off with pay to the employee within 28 days after such holiday falls;

34.6.4 one of the above methods must be mutually agreed upon by the employee and the employer, failing such agreement the provisions prescribed in paragraph 34.6.1 hereof shall apply.

    34.6 Where an employee's rostered day or days off coincide 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:

    34.6.1 one day with pay added to the annual leave;

    34.6.2 payment of one day's pay shall be made to the employee on the next succeeding pay day;

    34.6.3 such holiday may be allowed off with pay to the employee within 28 days after such holiday falls;

    34.6.4 one of the above methods must be mutually agreed upon by the employee and the employer, failing such agreement the provisions prescribed in clause 34.6.1 hereof shall apply.

  


Current Award

Proposed Order
Comments

PART 8 - TRANSFERS TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK

35. PROVISION OF EMPLOYEE ACCOMMODATION AND MEALS

35. PROVISION OF EMPLOYEE ACCOMMODATION AND MEALS

Item 49(8)(c)

35.1 Right to Make Deductions

              When an employer provides his or her employees with accommodation, meals or both then the employer may deduct an amount of money from the employee's wages in accordance with this clause.

35.1 Right to make deductions

              When an employer provides his or her employees with accommodation, meals or both then the employer may deduct an amount of money from the employee's wages in accordance with this clause.

  

35.2 Adult employees

        The amounts set out in the table below may be deducted from the wages of an adult employee for the provision of accommodation, meals or both by their employer. The same amounts may be deducted from the wages of a junior employee getting adult wages.

35.2 Adult employees

        The amounts set out in the table below may be deducted from the wages of an adult employee for the provision of accommodation, meals or both by their employer. The same amounts may be deducted from the wages of a junior employee getting adult wages.

  

      [formula not reproduced]

      [formula not reproduced]

  

35.3 Junior employees

      The amounts set out in the table below may be deducted from the wages of a junior employee who is being paid junior rates of pay for the provision of accommodation, meals or both by their employer. The amount which may be deducted depends on the age of the employee.

      [formula not reproduced]

35.3 Junior employees

      The amounts set out in the table below may be deducted from the wages of a junior employee who is being paid junior rates of pay for the provision of accommodation, meals or both by their employer. The amount which may be deducted depends on the age of the employee.

      [formula not reproduced]

  

35.4 Deductions for meals

    An employer may deduct an amount from an employee's wages for providing the employee with a meal only if:

      · the employee does not live in accommodation provided by the employer; and

      · the meal is provided during the employee's normal working hours.

35.4 Deductions for meals

    An employer may deduct an amount from an employee's wages for providing the employee with a meal only if:

      · the employee does not live in accommodation provided by the employer; and

      · the meal is provided during the employee's normal working hours.

  


Current Award

Proposed Order
Comments

35.5 Standard of Accommodation

    Rooms provided to employees must be fitted with adequate heating and cooling appliances.

[deleted]

Not allowable

36. TRAVELLING TRANSPORT AND FARES

    

36.1 Working Late

        When an employer requires an employee to work until it is too late to travel by his or her normal method of transport home the employer must either:

        · provide transport for the employee to get home free of charge; or

        · accommodation for the night free of charge.

[see clause 23 under "Travelling Allowance"]

Item 49(8)(c)

36.2 Working Early

              When an employer requires an employee to start work before his or her normal starting time and before his or her normal method of transport to work is available the employer must either:

      · provide transport for the employee to get to work; or

      · pay the cost of transport for the employee to get to work.

[see clause 23 under "Travelling Allowance"]

  

36.3 Working away from usual place of work

        This clause applies where an employer requires a permanent employee to work at a place more than 80 kilometres from the employees' usual place of work. In these circumstances the employer must pay the employee an amount equal to the cost of fares reasonably spent by the employee in travelling from the employees usual place of work to the new place of work.

[see clause 23 under "Travelling Allowance"]

  


Current Award

Proposed Order
Comments

    However the employer may recover any amount paid to an employee under this subclause if the employee concerned leaves his or her employment or is dismissed for misconduct within three months of receiving such a payment.

    

PART 9 - TRAINING AND RELATED MATTERS

37. TRAINING

[deleted]

Item 49(8)(d)

37.1 Application

37.1.1 Notwithstanding any of the following the rights and obligations of the parties shall be preserved.

37.1.2 This clause shall only apply to an employer where agreement is reached between the employer, employees and the Branch of the Union for the TASK Program to be implemented.

37.1.3 Employee participation in TASK shall be voluntary.

37.1.4 This clause shall not apply to apprentices employed under clause 18 of this award.

    

37.2 Definitions

37.2.1 For the purposes of this clause:

          (a) Training and Skills Program (TASK) is a Commonwealth Government Program, the objective of which is to assist the employment retention and to improve the skills of employees of the employer who would otherwise be retrenched, or who are working short-time or down-time situations and to improve training levels undertaken by industry;

    


Current Award

Proposed Order
Comments

      (b) A Co-ordination Committee is a committee made up of equal numbers of employer and employee representatives at the enterprise level who shall oversee the development and implementation of the TASK training plan. For the purposes of this clause where a consultative committee and/or training committee is presently established at an enterprise, such committee shall, if appropriate, constitute the Co-ordination Committee;

      (c) A TASK training plan is a plan developed and implemented by the Co-ordination Committee to meet the objectives of the TASK program and the specific requirements of the enterprise and industry; and

      (d) A TASK employee is an employee who is undergoing training endorsed by a Co-ordination Committee and receiving a training wage while engaged in TASK activities.

    

37.3 Training conditions

37.3.1 Employees approved to undertake the TASK program shall be required to attend the on and off-the-job training prescribed in the relevant Training Plan endorsed by the Co-ordination Committee.

37.3.2 On any day or part thereof an employee participating in the TASK program may only be directed to undertake activities under the TASK program guidelines.

37.3.3 The employer shall provide an appropriate level of supervision in accordance with the approved training plan.

    

37.4 Employment conditions

37.4.1 Irrespective of TASK activities employees shall maintain their employment status and the accrual of all entitlements and continuity of service provided for in the award including sick leave, annual leave, long service leave, holidays, superannuation, parental leave shall not be affected.

    


Current Award

Proposed Order
Comments

37.4.2 Employees engaged in TASK are permitted to be absent from work without loss of continuity of employment to attend off-the-job training in accordance with the training plan.

    

37.5 Wages

              When engaged in TASK employees' wage entitlements shall be 80% of their wages they would have received had they not been on TASK training plans.

    

38. RELATIONSHIP TO THE NATIONAL TRAINING WAGE INTERIM AWARD 1994

      A party to this award shall comply with the terms of the National Training Wage Interim Award 1994, as varied, as though bound by clause 3 of that award.

36. RELATIONSHIP TO THE NATIONAL TRAINING WAGE INTERIM AWARD 1994

A party to this award shall comply with the terms of the National Training Wage Interim Award 1994, as varied, as though bound by clause 3 of that award.

  

PART 10 - OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES

39. ACCIDENT PAY

37. ACCIDENT PAY

  

39.1 From the commencement of this award should an employee meet with an accident at his/her place of employment and is subject to and qualifies for compensation under the Accident Compensation Act presently in force in the States and areas covered by this award such employee shall have the amount received by way of compensation increased by the employer to the amount of the usual award weekly rate ruling at the time of such accident. The payment made by the employer shall be limited to a maximum period of 26 weeks.

37.1 From the commencement of this award should an employee meet with an accident at his/her place of employment and is subject to and qualifies for compensation under the Accident Compensation Act presently in force in the States and areas covered by this award such employee shall have the amount received by way of compensation increased by the employer to the amount of the usual award weekly rate ruling at the time of such accident. The payment made by the employer shall be limited to a maximum period of 26 weeks.

  

39.2 For the purpose of this clause "place of employment" to a weekly employee shall include on the way to work and on the way home from work.

37.2 For the purpose of this clause place of employment to a weekly employee shall include on the way to work and on the way home from work.

 

39.3 For the purpose of this clause a casual employee "place of employment" shall include travelling directly from or to their place of employment.

37.3 For the purpose of this clause a casual employee "place of employment" shall include travelling directly from or to their place of employment.

 


Current Award

Proposed Order
Comments

39.4 Casual employees make-up pay shall be based on the number of hours worked per week over the last month, with present employer, or if less than one month the average for the time worked. The amount to be paid as the normal weekly rate of pay only (i.e. time and one-quarter).

37.4 Casual employees make-up pay shall be based on the number of hours worked per week over the last month, with present employer, or if less than one month the average for the time worked. The amount to be paid as the normal weekly rate of pay only (i.e. time and one-quarter).

  

40. AMENITIES

[deleted]

Not allowable

40.1 An employer shall provide a separate dressing room each for male and female employees, adequately lighted and ventilated with suitable floor coverings and floor space to be sufficiently roomy to accommodate all employees likely to use it at the one time; a table and adequate seating accommodation for staff to partake of meals, and lounge or settee and steel or vermin-proof lockers; adjacent thereto wash basins and showers with hot and cold water and toilets for staff use.

    

40.2 An employer who is unable to provide the facilities herein required for a hotel built before 1 January 1968 may make application to a Board of Reference for exemption from this clause. The Board of Reference may grant such an exemption on such terms and conditions as to suitable alternative accommodation as it deems fit, provided that any exemption granted shall not continue after any substantial building alterations are made to the hotel on or after 1 January 1968.

    

40.3 The provisions of this clause shall not apply to wine saloons.

    

40.4 The provisions of this clause shall not apply in the South-Eastern Division of Queensland.

    

41. CLOTHING, EQUIPMENT AND TOOLS

[see clause 23]

Item 49(8)(c)

41.1 Where the employer requires any special clothing such as coats, dresses, caps, aprons, cuffs and any other articles of clothing to be worn by the employee they shall be purchased and laundered at the employer's expense. By agreement the employee may be required to wash and iron the special clothing and an agreed sum of money shall be paid to the employee each week by the employer provided that in the event of dispute the amount shall be determined by the Board of Reference.

    


Current Award

Proposed Order
Comments

41.2 For the purposes of this clause black and white attire (not being dinner suit or evening dress), shoes, hose and/or socks shall not be regarded as special clothing.

    

41.3 Where it is necessary that waterproof or other protective clothing such as waterproof boots, aprons, or gloves be worn by an employee, such clothing shall be supplied without cost to the employee and shall remain the property of the employer. Provided that in the event of dispute, the necessity for the provision of protective clothing shall be determined by the Board of Reference.

    

41.4 An employee on commencing employment shall sign a receipt for item/s of uniform and property. Such receipt shall list the item/s of uniform and property and value of same. Upon ceasing employment if the employee does not return item/s of uniform and property in accordance with the receipt the employer shall be entitled to deduct the value as stated on the receipt from the employee's wages

    

41.4.1 Records of receipt shall be available for inspection by an official of the union. In the case of genuine wear and tear, damage, loss, theft that is not the employee's fault this provision shall not apply.

    

41.4.2 Any disagreement concerning the value of item/s of uniform and property and any other aspect of this subclause shall be determined by a Board of Reference.

    

41.5 All aprons, towels, tools, ropes, brushes, knifes, choppers, implements, utensils and materials shall be supplied by the employer without cost to the employee.

    

42. OCCUPATIONAL HEALTH AND SAFETY

Each employer shall provide a first aid kit for the use of employees. Where State legislation requires specific first aid kits and/or facilities such as first aid rooms and the use thereof, then the employer shall comply with such legislation.

[deleted]

Not allowable


Current Award

Proposed Order
Comments

PART 11 - AWARD COMPLIANCE AND UNION RELATED MATTERS

43. TIME AND WAGES BOOK SHEETS

[deleted]

Item 49(8)(c)

43.1 Time and wages book or sheet shall be provided and kept by each employer. Each employee shall on commencing work each day enter his/her starting time; and on finishing work each day enter his/her finishing time and shall place completed time and wages book or sheets in a place designated by the employer.

    

43.2 The employer shall keep such time and wages book or sheets available at all reasonable times and in a convenient place to which the employee shall have access for the purpose of making such entries. Such book or sheets may be inspected by the officials of the Australian Liquor Hospitality and Miscellaneous Workers Union at all reasonable hours.

    

43.3 The employer shall keep a record of the time worked and the amount of wages and overtime paid each week, together with the date of payment. The employee shall each pay day be given details of his/her gross pay, taxation deductions and net pay.

    

43.4 On the time and wages book or sheets that the employee completes he/she must enter his/her name, and age (if under 21 years). On the same time record the employer must enter the employee's work classification, whether permanent, full-time, part-time or casual as well as the rate per week and hourly rate of pay. Any alteration made to the employee's time record must be initialled by the employee concerned and employer representative.

    

43.5 When broken or ordinary shifts are worked the employee shall enter in the time and wages book or sheets the time he or she goes off for each meal or break and the time of restarting work after each meal or break and the finishing time.

    

43.6 Time and wages book or sheets must be kept at the place of employment for at least six years.

    


Current Award

Proposed Order
Comments

43.7 Notwithstanding the other provisions in this clause, employers respondent to the award may provide electronic or mechanical time recording systems to be installed at convenient locations for employees to record their starting and finishing times each day.

    

44. POSTING OF AWARD

This award shall be exhibited by each employer on his/her premises in a place accessible to all employees.

38. POSTING OF AWARD

This award shall be exhibited by each employer on his/her premises in a place accessible to all employees.

  

45. PREFERENCE

[deleted]

Not allowable
s.94

45.1 Preference shall be given to all members of the union who apply for employment under this award, and retention in employment under this award in the event of retrenchment. Such preference shall be given in the following manner:

    

45.1.1 Where a member of the union applies for employment and is willing and able to perform work under this award in respect of which work the employer intends to engage a new employee, the employer shall engage such member of the union.

    

45.1.2 Where the employer is aware that a member of the union is willing and able to continue to perform work under this award in respect of which work the employer intends to reduce the number of his/her existing employees by retrenchment, the employer shall retain in employment such member of the union in preference to persons who are not members of the union. Such preference shall be given subject to the following conditions:

          (a) Nothing in this clause shall require an employer to engage or retain in employment any particular person who is, in the opinion of the employer, not able to perform the work efficiently.

    


Current Award

Proposed Order
Comments

      (b) Nothing in this clause shall affect the right which an employer may have to dismiss summarily for misconduct or neglect of duty.

    

46. STOP WORK MEETINGS

[see clause 39]

Item 49(8)(c)

46.1 One official stop-work meeting per year shall be allowed without loss of ordinary pay provided the conditions are observed as follows:

    

46.1.1 At least fourteen days' notice of such meeting is given to each employer.

    

46.1.2 The period of the meeting shall be three hours as a maximum, the employees returning to duty by noon.

    

46.1.3 Payment to be made for the period that the employee was rostered for duty.

    

46.1.4 Such stop-work meeting to be held on weekdays, other than Thursday or Friday.

    

46.1.5 Payment of wages shall be made only upon the employer being in receipt of satisfactory evidence of the employees attendance at the meeting.

    

47. UNION OFFICIALS

The secretary and accredited officials of the union shall have the right to enter the premises of an employer respondent at a time reasonably convenient to the employer for the purposes of interviewing members but such officials shall obtain the permission of the employer before entering either the cellar or the back of the house. Provided that the employer shall not unreasonably refuse the entry of a union official to the back of the house or cellar.

[deleted]

Not allowable, but see Div 11A of Part IX of WR Act


Current Award

Proposed Order
Comments
 

39. LEAVE FOR CONSULTATION MEETINGS

Each employer must allow his/her employees to attend meetings to discuss industrial matters without loss of ordinary pay provided the following conditions are observed:

39.1 At least fourteen days' notice of such meeting is given to the employer.

39.2 The period of the meeting is no greater than three hours, and employees returning to duty by noon.

39.3 The employer is only obliged to pay wages for the period that the employee was rostered for duty.

39.4 Such consultation meetings are to be held on weekdays, other than Thursday or Friday.

39.5 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.

39.6 The employer is not obliged to pay wages for more than one such meeting in any calendar year.

  
 

40. INDEX OF FACILITATIVE PROVISIONS

Item 49(8)(c)

 

40.1 A facilitative provision is one which provides that the standard approach in an award provision may be departed from by agreement between an individual employer and the Union and/or an employee, or the majority of employees, in the enterprise or workplace concerned.

  


Current Award

Proposed Order
Comments
 

40.2 Facilitative provisions in this award are contained in the following clauses:

      Clause title Clause number

      Part-time employees - hours of work 15.3
      Penalty rates - payment for public holidays 19.2.1
      Payment of wages - time of payment 21.1
      Payment of wages - method of payment 21.2
      Payment of wages - fortnightly pay 21.2
      Option for annualised salary 22
      Clothing 23.3.4
      Hours of work - method of working prescribed hours 26
      Overtime - time off in lieu of payment for overtime 28.7
      Rosters - alteration 29
      Annual leave - time of taking 30.3
      Parental leave - variation of period 32.6
      Public holidays - coinciding with RDO's 34.6

  

APPENDIX A

APPENDIX A

  

APPENDIX B

[deleted]

Item 49(8)(d)


Appearances:


R. Hamilton with D. Harris and R. Mulcahy for the Australian Hotels Association and the Australian Chamber of Commerce and Industry (intervening).


W. Hinkley of Counsel with N. Swancott and B. O'Neil for the Australian Liquor, Hospitality and Miscellaneous Workers Union.


E.R. Cole with B. Leahy and P. Drever for the Minister of Workplace Relations and Small Business for the Commonwealth (intervening) and for Her Majesty the Queen in the Right of the States of Queensland, Tasmania, Victoria, Western Australia, South Australia, and the Governments of the Australian Capital Territory and the Northern Territory (intervening).


S. Jones with R. Campo for the Australian Council of Trade Unions (intervening).


L. Wright Q.C. with A. Hatcher and S. Bridgeford for Her Majesty the Queen in the Right of the State of New South Wales (intervening).


F. Hayes for the National Pay Equity Coalition (intervening) and on behalf of the Women's Electoral Lobby (intervening) and the Australian Federation of Business and Professional Women (intervening).


H. Dixon of Counsel for the Human Rights and Equal Opportunity Commission (intervening).

Decision Summary

   

Award - allowable award matters - s.89A WR Act 1996 - test case liquor and accommodation industry - variations required to give effect to revelant statutory provisions - items 46-54 of Schedule 5 of WROLA Act 1996 - application made by AHA - various submissions made by LTU - consideration of LTU's submissions - nature of industry to be taken into account when considering proposals to vary existing award provisions - construction of s.89A - approach in Commonwealth Bank of Australia Officers Award Case adopted - Hospitality award to be varied pursuant to item 49(1) so that it deals only with allowable award matters - Hospitality award to be reviewed to determine whether it meets criteria in items 49(7) and (8) - separate draft order to be published - consideration of each clause of Hospitality award - proposed changes outlined - reasons for changes outlined - principles established by Full Bench to assist review process - award simplification principles - principles describe process to apply pursuant to items 49 and 50 of Schedule 5 of the WROLA Act - nine principles outlined (see below) - items 49(7) and (8) dealt with specifically - certain matters in Hospitality award more appropriately dealt with by agreement at workplace - October 1995 Review decision regarding majority clauses remain relevant - majority clause to be included in multiple industry awards where appropriate - agreements arising from facilitative provisions may be between employer and employee or employer and a majority of employees at workplace - Commission may prescribe safeguards to ensure facilitative provisions operate fairly - part-time work provisions in Hospitality award reviewed to ensure conformity with WR Act - statement in October 1995 Review decision in relation to plain English endorsed - question of whether particular award clause obsolete question of fact - in relation to updating, consideration to be given to whether award varied to incorporate safety net adjustments and relevant test case standards - Commission's model clause in relation to trainee standards and supported wage system to continue to apply - model anti-discrimination clause outlined - various attachments - principles - awards to be reviewed upon application under item 49 of WROLA Act after applicant has made reasonable attempts to reach agreement with other parties to the award about how the award should be varied and treatment of non allowable award matters - after 30 June 1998 awards to be reviewed when Commission satisfied award affected by item 50 of WROLA Act - awards to be varied so that they: act as a safety net of fair minimum wages and conditions of employment; are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises; and encourage the making of agreements between employers and employees at the workplace or enterprise level - simplified awards are those which provide minimum working arrangements encompassing entitlements to pay and conditions and reasonable protections for both employees and employers in the accessing and granting of entitlements - simplified awards will have the following characteristics: will not contain non allowable matters or matters not incidental to allowable matters or not necessary for the effective operation of the award; provide minimum entitlements for employees in relation to allowable matters consistent with safety net character; provide rates of pay that operate as minimum rate; where appropriate include provisions enabling employment of regular part-time employees; not include provisions which set maximum or minimum hours of work for regular part-time employees; and include an anti-discrimination clause - where appropriate awards must be reviewed against items 49(7) and (8) of WROLA Act 1996 or items 51(6) and (7) - in considering whether to vary a paid rates award the Commission will take into account any subsequent Full Bench decisions which deal with the variation of paid rates awards - award simplification does not involve a general review of the level of award entitlements - no requirement awards contain provisions in respect of each of the allowable award matters - new Hospitality award to provide guidance to parties to other awards in award simplification process.

Application by Australian Hotels Association to vary the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995

C No. 90061 of 1997

Print P7500

Giudice J

Ross VP

McIntyre VP

MacBean SDP

McDonald D

Melbourne

23 December 1997

Printed with the authority of the Australian Industrial Relations Commission

Recommended retail price $10.00
** end of text **