CLEANERS AND CARETAKERS (CAR AND CARAVAN PARKS) AWARD 1975

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Australian Liquor, Hospitality and Miscellaneous Workers Union of Western Australian Branch

APPLICANT

-v-

Wilson Parking and Others

RESPONDENTS

CORAM Commissioner J H Smith

DATE Thursday, 23 MARCH 2006

FILE NO/S APPL 421 OF 2004

CITATION NO. 2006 WAIRC 04048

Result Award varied

Representation

Applicant Ms S Northcott

Respondents Mr M O’Connor (as agent on behalf of the Respondents for whom warrants have been filed)

No appearance by or on behalf of any other Respondents

Order

Having heard Ms Northcott on behalf of the Applicant, Mr O’Connor as agent on behalf of the Respondents for whom warrants have been filed and no appearance by or on behalf of any other Respondents, and by consent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders –

THAT the Cleaners and Caretakers (Car and Caravan Parks) Award 1975 be varied in accordance with the following schedule and that such variation shall have effect from the beginning of the first pay period commencing on and from 24 March 2006

Commissioner J H Smith

SCHEDULE

1. Clause 2. – Arrangement:  Delete this clause and insert the following in lieu thereof:

2. - ARRANGEMENT

1. Title

1B Minimum Adult Award Wage

2. Arrangement

3. Area and Scope

4. Term

5. Definitions

6. Contract of Service

7. Hours

8. Rosters

9. Shift and Weekend Work

10. Overtime

11. Higher Duties

12. Fares and Travelling Time

13. Special Rates and Provisions

14. Public Holidays

15. Annual Leave

16. Sick Leave

17. Long Service Leave

18. Bereavement Leave

19. Employment Records

20. Parental Leave

21. Introduction of Change and Redundancy

22. Location Allowances

23. Types of Employment

24. Wages

25. Payment of Wages

26. No Reduction

27. Resolution of Disputes Requirements

28. Effect of 38-Hour Week

29. Superannuation

30. Right of Entry

31. Supported Wage System for Employees with Disabilities

32. Other Laws Affecting Employment

33. Where to go to for Further Information

 Schedule A - Parties to the Award

 Schedule B - Respondents

2. Clause 3. – Area and Scope:  Delete this clause and insert the following in lieu thereof:

3. - AREA AND SCOPE

This award shall apply throughout the State of Western Australia to employees classified in clause 24 - Wages of this award in the industries carried on by the respondents to this award.

3. Clause 5. – Definitions:  Delete this clause and insert the following in lieu thereof:

5. – DEFINITIONS

(1) "Caretaker" shall mean an employee required to reside on or in the vicinity of the premises of the employer, and who is responsible to the employer for the supervision and/or the general maintenance of such premises, and for the safety of the employer's grounds, buildings and appurtenances, but shall not mean an employee who is employed to manage such premises.

(2) "Watchperson" shall mean an employee who is required to watch and/or guard and/or patrol grounds and/or buildings.

(3) "Cleaner" shall mean an employee substantially employed in performing cleaning work.

(4) "Parking Attendant" shall mean an employee employed in car parks, either indoor or outdoor.  Duties shall include the directing of clients' vehicles in such places and where applicable the collection of admission fees to such places.

(5) "Accrued Day(s) Off" means the paid day(s) off accruing to an employee resulting from an entitlement to the 38 hour week as prescribed in Clause 7 - Hours of this Award.

4. Clause 6. – Contract of Service:  Delete subclauses (1), (2), (3) and (6) of this clause and insert the following in lieu of subclause (1) thereof, and renumber accordingly:

(1) Notice of Termination by Employer

(a) The employment of any employee (other than a casual employee, who shall be engaged by the hour) may be terminated by the following notice period, provided that an employee who has been dismissed on the grounds of serious misconduct shall only be paid up to the time of dismissal.

(b) An employee who at the time of being given notice is over 45 years of age and has completed two years' continuous service with the employer, shall be entitled to one week's additional notice.

(c) Payment in lieu of the notice prescribed in paragraphs (a) and (b) of this subclause shall be made if the appropriate notice period is not given.  The employment may be terminated by part of the period of notice specified and part payment in lieu thereof.

(d) In calculating any payment in lieu of notice the employer shall pay the employee the ordinary wages for the period of notice had the employment not been terminated.

(e) Service by the employee with a business which has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance the Long Service Leave Standard Provisions published in each January in the Western Australian Gazette, and as amended from time to time, shall constitute continuous service for the purpose of this clause.

(f) Notice of Termination by Employee

One weeks' notice shall be necessary for an employee to terminate their engagement or the forfeiture or payment of one week's pay by the employee to the employer in lieu or notice.

(g) Termination, Redundancy and Introduction of Change

In circumstances of termination, redundancy or introduction of change, employees are entitled to a statement of employment, job search leave, consultation, redundancy pay and other matters as provided in the General Order 2005 WAIRC 01715 (85(WAIG)1667), as amended, varied or replaced from time to time.

5. Clause 7. – Hours:  Delete subclause (1) of this clause and insert the following in lieu thereof:

(1) The ordinary hours of duty shall be an average of 38 per week with the hours actually worked being 40 per week or 80 per fortnight to be worked eight hours per day on any five days of the week or ten days of the fortnight.

Except where provided elsewhere, the ordinary hours shall be worked with two hours of each week's work accruing as an entitlement to a maximum of 12 Accrued Day(s) Off in each 12 month period.  The Accrued Day(s) Off shall be taken at a time mutually acceptable to the employer and the worker, except that the employer may require that they be taken within 12 months of the worker becoming entitled to the Accrued Day(s) Off.

6. Clause 10. – Overtime:  Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) Time worked by a continuous shift employee in excess of the ordinary hours shall be paid for at ordinary rates:

(a) if it is due to private arrangements between the workers themselves; or

(b) if it does not exceed two hours and is due to a relieving person not coming on duty at the proper time; or

(c) if it is for the purpose of affecting the customary rotation of shifts.

7. Clause 10. – Overtime:  Delete subclause (3) of this clause and insert the following in lieu thereof:

(3) All work performed by shift employees on any day on which they are rostered off duty or days worked in excess of those provided in clause 7 - Hours or clause 23 – Types of Employment - shall be paid for at the rate of double time.

8. Clause 10. – Overtime:  After subclause (6) of this clause insert a new subclause (7):

(7) Reasonable Overtime

(a) An employer may require an employee to work reasonable overtime at overtime rates.

(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

(i) any risk to employee health and safety;

(ii) the employee's personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise; 

(iv) the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it;  and

(v) any other relevant matter.

9. Clause 12. – Fares and Travelling Time:  Delete this clause and insert the following in lieu thereof:

(1) Where an employee is required during normal working hours, by the employer, to work outside their usual place of employment, the employer shall pay the employee any reasonable travelling expenses incurred except where an allowance is paid in accordance with subclause (2) of this clause.

(2) (a) Where an employee is required and authorised to use their own motor vehicle in the course of their duties they shall be paid an allowance not less than that provided for in the schedules set out hereunder.  Notwithstanding anything contained in this subclause the employer and the employee may make any other arrangements as to car allowance not less favourable to the employee.

(b) Where an employee in the course of a journey travels through two or more of the separate areas, payment at the rates prescribed herein shall be made at the appropriate rate applicable to each of the separate areas traversed.

Rates of hire for use of employee's own vehicle on employer's business:

Schedule 1 - Motor Vehicle Allowances

Schedule 2 - Motor Cycle Allowances

10. Clause 13. – Special Rates and Provisions:  Delete the following subclauses (5), (7), (9), (10), (13) & (14) of this clause and insert the following in lieu thereof:

(5) Outside Cleaning:

No employee, other than a properly equipped window cleaner, shall be required to clean the outside of windows except when standing on the ground, or balcony, or verandah.

No employee shall be required to clean the outside of windows in a dangerous situation after sunset.

(7) Protective Clothing:

Where an employee is required by the employer to work in the rain, suitable protective clothing shall be provided free of charge by the employer.

Where an employee during the course of their duty may become wet, they shall be supplied free with protective footwear, which shall remain the property of the employer.

In the event of a dispute arising the matter shall be resolved in accordance with the dispute resolution procedures.

(9) Height Money:

(a) Where it is necessary to go wholly outside a building to clean windows, an employee shall, if such cleaning be 15.5 metres or more from the nearest horizontal plane, be paid an allowance of $2.35 per day.

(b) Where an employee is required to clean windows from a swinging scaffold or similar device he/she shall be paid 31 cents per hour extra for every hour or part thereof so worked.

(10) Where an employee is required to carry out the ordinary hours of duty per day in more than one shift and where the break is not less than three hours an allowance of $2.65 per day shall be paid.

(13) Cash Handling Allowance:

An employee who is required by the employer to collect money from the customers of that employer shall be paid an allowance of $6.40 per week.

(14) All employees called upon to clean closets connected with septic tanks and sewerage shall receive an allowance as follows:

11. Clause 14. – Public Holidays:  Delete this clause and insert the following in lieu thereof:

14. - PUBLIC HOLIDAYS

(1) The following days or the days observed in lieu shall subject to subclause (3) hereof, be allowed as holidays without deduction of pay namely: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, State Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day.

(2) (a) When any of the days mentioned in subclause (1) hereof falls on a Saturday or a Sunday the holiday shall be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday, the holiday shall be observed on the next succeeding Tuesday.

In each case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

(b) When any of the days observed as a holiday under this clause falls on a day when an employee is rostered off duty and he/she has not been required to work on that day he/she shall be paid as if the day was an ordinary working day, or, if he/she agrees, be allowed a day's leave with pay in lieu of the holiday at a time mutually acceptable to the employer and the employee.

(3) An employee, who on a day observed as a holiday under this clause is required to work during his/her ordinary hours of work shall be paid for the time worked at the rate of double time and one-half or, if he/she agrees, be paid for the time worked at the rate of time and one-half and in addition be allowed to take a day's leave with pay on a day mutually acceptable to the employer and the employee.

(4) The provisions of this clause shall not apply to casual employees.

(5) Where –

(a) A day is proclaimed as a public holiday or as a public half-holiday under Section 7 of the Public and Bank Holidays Act, 1972; and

(b) That proclamation does not apply throughout the State or to the metropolitan area of the State,

That day shall be a whole holiday or, as the case may be, a half-holiday for the purposes of this award within the district or locality specified in the proclamation.

(6) When any of the days observed as a holiday prescribed in this clause fall on a day when an employee is on an Accrued Day Off the employee shall be allowed to take a day's holiday in lieu of the holiday on a day immediately following the employee's annual leave or at a time mutually acceptable to the employer and the employee.

(7) An employee, whilst on a public holiday prescribed by this clause shall continue to accrue an entitlement to an Accrued Day Off as prescribed in subclauses (1) and (2) of Clause 7. - Hours of this award.

(8) Where an employee has additional leave granted pursuant to subclause (2) of this clause, the employer may require such leave to be taken within 12 months of falling due.

12. Clause 15. – Annual Leave:  Delete this clause and insert the following in lieu thereof:

15. - ANNUAL LEAVE

(1) An employee is entitled to a period of four (4) consecutive weeks' annual leave with payment at the employee's ordinary rate of wage for each twelve (12) months' continuous service with the employer.  Entitlements to annual leave accrue pro rata on a weekly basis.

(2) An employee before going on leave shall be paid the wages they would have received in respect of the ordinary time they would have worked had they not been on leave during the relevant period.

(3) In addition to their payment for annual leave an employee shall be paid a loading of 17.5 percent calculated on their ordinary rate of wage.  Provided that where the employee would have received any additional rates for the work performed in ordinary hours, as prescribed by this award, had they not been on leave during the relevant period and such additional rates would have entitled them to a greater amount than the loading of 17.5 percent, then such additional rates shall be added to their ordinary rate of wage in lieu of the 17.5 percent loading.  Provided further that if the additional rates would have entitled them to a lesser amount than the loading of 17.5 percent, then such loading of 17.5 percent shall be added to their ordinary rate of wage in lieu of the additional rates.

(4) The loading prescribed by subclause (3) shall not apply to proportionate leave on termination.

(5) (a) An employee whose employment terminates after they have completed a 12 month period and who has not been allowed the leave prescribed under this clause in respect of that period, shall be given payment as prescribed in subclauses (1) (2) and (3) of this clause in lieu of so much of that leave as has not been allowed unless -

(i) they have been justifiably dismissed for misconduct, and

(ii) the misconduct for which they have been dismissed occurred prior to the completion of that 12 month period.

(b) If after one week's continuous service in any 12 monthly period an employee lawfully leaves their employment or their employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.923 hours pay at the ordinary rate of wage in respect of each completed week of continuous service.

(6) If any award holiday falls within a employee's period of annual leave and is observed on a day which in the case of that employee would have been an ordinary working day there shall be added to that period one day being an ordinary working day for each such holiday observed as aforesaid.

(7) Employees continue to accrue annual leave while:

On annual leave;

On long service leave;

Observing a public holiday prescribed by this award;

On sick leave;

On bereavement leave;

On carer’s leave.

(8) Annual leave may be taken in more than one period of leave, by mutual agreement between the employer and employee.

(9) No employee shall be required to take annual leave unless two weeks' prior notice is given.

(10) Where an employer and employee have not agreed when the employee is to take their annual leave, the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave which accrued more than 12 months' before that time; provided the employee provides at least two weeks notice.

(11) The provisions of this clause shall apply to part time employees on a pro-rata basis in the same proportion as the average number of hours worked each week in the 12 month period bear to 38.

(12) The provisions of this clause do not apply to casual employees.

13. Clause 16. – Sick Leave:  Delete this clause and insert the following in lieu thereof:

(1) (a) An employee who is unable to attend or remain at his or her place of employment during the ordinary hours of work by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with the following provisions.

(b) Entitlement to payment shall accrue at the rate of 1/26th of a week for each completed week of service with that employer.

(c) If in the first or successive years of service with the employer an employee is absent on the ground of personal ill health or injury for a period longer than their entitlement to paid sick leave, payment may be adjusted at the end of that year of service, or at the time the employee's services terminate, if before the end of that year of service, to the extent that the employee has become entitled to further paid sick leave during that year of service.

(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subject to this clause may be claimed by the employee if the absence by reason of personal ill health or injury exceeds the period for which entitlement has accrued during the year at the time of the absence.  Provided that an employee shall not be entitled to claim payment for any period exceeding ten weeks in any one year of service.

(3) (a) The employee shall as soon as reasonably practicable advise the employer of his or her inability to attend for work, the nature of the illness or injury and the estimated duration of absence, Provided that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of the commencement of the absence.

(b) An employee claiming entitlement under this clause is to provide the employer evidence that would satisfy a reasonable person of the entitlement.

(4) (a) Subject to the provisions of this subclause, the provisions of this clause apply to an employee who suffers personal ill health or injury during the time when they are absent on annual leave and an employee may apply for and the employer shall grant, paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the employee was confined to their place of residence or a hospital as a result of their personal ill health or injury for a period of seven consecutive days or more and he or she produces a certificate from a registered medical practitioner that they were so confined.  Provided that the provisions of this paragraph do not relieve the employee of the obligation to advise the employer in accordance with subclause (3) of this clause if they are unable to attend for work on the working day next following their annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which the employee was entitled at the time they proceeded on annual leave and shall not be made with respect to fractions of a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of this subclause, that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sick leave and the replaced annual leave may be taken at another time mutually agreed to by the employer and the employee or, failing agreement, shall be added to the employee's next period of annual leave or, if termination occurs before then, be paid for in accordance with the provisions of clause 15. - Annual Leave.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequently taken provided that the annual leave loading prescribed in Clause 15. – Annual Leave shall not be paid if the employee had already received payment with respect to the replaced annual leave.

(5) The provisions of this clause with respect to payment do not apply to employees who are entitled to payment under the Workers' Compensation and Injury Management Act 1981 nor to employees whose injury or illness is the result of the employee's own misconduct.

(6) The provisions of this clause do not apply to casual employees.

(7) (a) An employee who works 40 actual hours each week during a particular work cycle shall be paid the wages they would have received had they not proceeded on sick leave and shall have the accrued entitlement to paid sick leave reduced by the time the employee is absent from work on account of paid sick leave.

(b) An employee who works 38 ordinary hours each week during a particular work cycle shall be paid in respect of any absence the normal pay the employee would have received had such employee been at work during the absence.

(c) An employee shall not be entitled to claim payment for non-attendance on the ground of personal ill-health or injury nor will the employee's sick leave entitlements be reduced if such personal ill-health or injury occurs on a day when an employee is absent on an Accrued Day Off in accordance with the provisions of Clause 7 - Hours of this award unless such illness is for a period of seven consecutive days or more and in all other respects complies with the requirements of subclause (4) hereof.

(8) An employee whilst on paid sick leave shall continue to accrue an entitlement to an Accrued Day Off as prescribed in Clause 7 - Hours of this award.

(9) Carer's Leave

An employee is entitled to use, each year, up to five (5) days of the employee's entitlement to sick leave, to be the primary care giver of a member of the employee's family or household who is ill or injured and in need of immediate care and attention.

(a) A member of the employee's family mentioned within this clause means any of the following -

(i) the employee's partner or de facto partner;

(ii) a child of whom the employee has parental responsibility as defined by the Family Court Act 1997;

(iii) an adult child of the employee;

(iv) a parent, sibling or grandparent of the employee;

(v) any other person who lives with the employee as a member of the employee's family.

(b) By mutual agreement between the employer and employee an employee may be granted further sick leave credits for carer's leave.

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

14. Clause 17. – Long Service Leave:  Delete subclause (1) of this clause and insert the following in lieu thereof:

(l) The Long Service Leave Standard Provisions as published each January in the Western Australian Industrial Gazette as varied from time to time, are hereby incorporated in and shall be deemed to be part of this award.

15. Clause 18. – Compassionate Leave:  Delete this clause and insert the following in lieu thereof:

18. – BEREAVEMENT LEAVE

(1) (a) Subject to subclause (2) of this clause, on the death of -

(i) the partner or de facto partner of an employee;

(ii) the child or step-child of an employee;

(iii) the brother or sister of an employee;

(iv) the parent, step-parent or grandparent of an employee; or

(v) any other person who, immediately before that person's death, lived with the employee as a member of the employee's family,

an employee (including a casual employee) is entitled to paid bereavement leave of up to 2 days.

(b) The 2 days need not be consecutive.

(c) Bereavement leave is not to be taken during a period of any other kind of leave.

(2) Proof in support of claim for leave

An employee who claims to be entitled to paid leave in accordance with subclause (1) hereof is to provide to the employer, if so requested by the employer, evidence that would satisfy a reasonable person as to -

(a) the death that is the subject of the leave sought; and

(b) the relationship of the employee to the deceased person.

16. Clause 19. – Time and Wages Record: Delete this clause and insert the following in lieu thereof: 

19. – EMPLOYMENT RECORDS

(1) A record shall be kept in the premises occupied by the employer wherein shall be recorded for each employee:

(a) On a daily basis:

(i) start/finish time and daily hours including overtime;

(ii) paid time; and

(iii) breaks.

(b) For each pay period:

(i) designation;

(ii) gross and net pay; and

(iii) deductions, including reasons for these deductions.

(c) The following records must also be kept:

(i) employee's name

(ii) date of birth if under 21 years of age;

(iii) start date;

(iv) nature of work performed and classification;

(v) all leave paid, partly paid or unpaid;

(vi) relevant information for Long Service Leave calculations;

(vii) any industrial instrument including awards, orders or agreements that apply;

(viii) any additional information required by the industrial instrument; and

(ix) any other information necessary to show remuneration and benefits comply with the award.

(2) The employer shall on the written request by a relevant person:

(a) produce to the person the employment records  relating to the employee;

(b) let the person inspect the employment records;

(c) let the relevant person enter the premises of the employer for the purpose of inspecting the records; and

(d) let the relevant person take copies of or extracts from the records.

(3) A 'relevant person' means:

(a) the employee concerned;

(b) if the employee is a represented person, his or her representative;

(c) a person authorised in writing by the employee; and

(d) an officer referred to in section 93 of the Industrial Relations Act (1979) (as amended) authorised in writing by the Registrar.

(4) An employer shall comply with a written request not later than:

(a) at the end of the next pay period after the request is received; or

(b) the seventh day after the day on which the request was made to the employer.

(5) The records are to be kept in the manner prescribed by the Industrial Relations (General) Regulations 1997.

17. Clause 20. - Maternity Leave:  Delete this clause and insert the following in lieu thereof:

20. – PARENTAL LEAVE

(1) Subject to the terms of this clause employees are entitled to parental leave.

(2) For the purposes of this clause “continuous service” is work for an employer on a regular and systematic basis (including any period of authorised leave or absence).

(3) Definitions:

In this clause -

"adoption", in relation to a child, is a reference to a child who -

(i) is not the child or the step‑child of the employee or the employee's partner;

(ii) is less than 5 years of age; and

(iii) has not lived continuously with the employee for 6 months or longer;

"continuous service" means service under an unbroken contract of employment and includes -

(i) any period of parental leave; and

(ii) any period of leave or absence authorised by the employer;

"expected date of birth" means the day certified by a medical practitioner to be the day on which the medical practitioner expects the employee or the employee's partner, as the case may be, to give birth to a child;

"parental leave" means leave provided for by subclause (6)(a);

"partner" means a spouse or de facto partner.

(4) Entitlement to Parental Leave

(a) Subject to subclauses (6), (7)(a) and (8)(a), an employee, other than a casual employee, is entitled to take up to 52 consecutive weeks of unpaid leave in respect of -

(i) the birth of a child to the employee or the employee's partner; or

(ii) the placement of a child with the employee with a view to the adoption of the child by the employee.

(b) An employee is not entitled to take parental leave unless the employee ‑

(i) has, before the expected date of birth or placement, completed at least 12 months' continuous service with the employer; and

(ii) has given the employer at least 10 weeks written notice of the employee's intention to take the leave.

(c) An employee is not entitled to take parental leave at the same time as the employee's partner but this paragraph does not apply to one week's parental leave -

(i) taken by the employee and the employee’s partner immediately after the birth of the child; or

(ii) taken by the employee and the employee's partner immediately after a child has been placed with them with a view to their adoption of the child.

(d) The entitlement to parental leave is reduced by any period of parental leave taken by the employee's partner in relation to the same child, except the period of one week's leave referred to in paragraph (c).

(5) Maternity leave to start 6 weeks before birth

A female employee who is pregnant and who has given notice of her intention to take parental leave is to start the leave 6 weeks before the expected date of birth, unless in respect of any period closer to the expected date of birth a medical practitioner has certified that the employee is fit to work.

(6) Medical certificate

An employee who has given notice of the employee's intention to take parental leave, other than for adoption, is to provide to the employer a certificate from a medical practitioner stating that the employee or the employee's partner, as the case may be, is pregnant and the expected date of birth.

(7) Notice of partner’s parental leave

(a) An employee who has given notice of the employee's intention to take parental leave or who is actually taking parental leave is to notify the employer of particulars of any period of parental leave taken or to be taken by the employee's partner in relation to the same child.

(b) Any notice given under paragraph (a) is to be supported by a statutory declaration by the employee as to the truth of the particulars notified.

(8) Notice of parental leave details

(a) An employee who has given notice of the employee's intention to take parental leave is to notify the employer of the dates on which the employee wishes to start and finish the leave no less than four weeks before the proposed commencement date.

(b) An employee who is taking parental leave is to notify the employer of any change to the date on which the employee wishes to finish the leave.

(c) The starting and finishing dates of a period of parental leave are to be agreed between the employee and employer.

(9) Return to work after parental leave

(a) An employee shall confirm the employee’s intention of returning to work by notice in writing to the employer given not less than four weeks prior to the expiration of the period of parental leave.

(b) On finishing parental leave, an employee is entitled to the position the employee held immediately before starting parental leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (12), to the position the employee held immediately before such transfer.

(c) If the position referred to in paragraph (a) is not available, the employee is entitled to an available position –

(i) for which the employee is qualified; and

(ii) that the employee is capable of performing, most comparable in status and pay to that of the employee's former position.

(d) Where, immediately before starting parental leave, an employee was acting in, or performing on a temporary basis the duties of the position referred to in paragraph (b), that paragraph applies only in respect of the position held by the employee immediately before taking the acting or temporary position.

(e) Notwithstanding paragraphs (b) and (c) of this clause, an employer and an employee may agree to an alternative return to work such as part-time employment, having regard to

(i) applicable discrimination legislation,

(ii) the requirements of the employee,

(iii) the operational needs of the employer, and

(iv) any other relevant matter.

(10) Effect of parental leave on employment

Absence on parental leave -

(a) does not break the continuity of service of an employee; and

(b) is not to be taken into account when calculating the period of service for the purpose of this Award.

(11) Sick Leave

Where an employee not then on maternity leave suffers an illness related to her pregnancy, she may take such paid sick leave as to which she is then entitled and such further unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall not exceed 52 weeks.

(12) Transfer to a Safe-Job

Where in the opinion of a duly qualified 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 shall, 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 parental leave.

If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to take leave for such period as is certified necessary by a duly qualified medical practitioner.  Such leave shall be treated as maternity leave for the purposes of this clause.

(13) Variation of Period of Parental Leave

(a) Provided the addition does not extend the parental leave beyond 52 weeks, the period may be lengthened once only, save with the agreement of the employer, by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened.

(b) The period of leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

(14) Cancellation of Parental Leave

(a) Parental leave, applied for but not commenced, shall be cancelled when the pregnancy of an employee or the employee’s partner, as the case may be, terminates other than by the birth of a living child.

(b) Where the pregnancy of an employee or an employee’s partner, as the case may be, then on parental leave terminates other than by the birth of a living child, it shall be the right of the employee to resume work at a time nominated by the employer which shall not exceed four weeks from the date of notice in writing by the employee to the employer that the employee desires to resume work.

(15) Special Maternity Leave

(a) Where the pregnancy of a female employee not then on parental leave terminates after 28 weeks other than by the birth of a living child then:

(i) she shall be entitled to such period of unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work;  or

(ii) for illness other than the normal consequences of confinement she shall be entitled, either in lieu of or in addition to special maternity leave, to such paid sick leave as to which she is then entitled and which a duly qualified medical practitioner certifies as necessary before her return to work.

(b) For the purposes of subclauses (10), (16) and (17) hereof, maternity leave shall include special maternity leave.

(c) An employee returning to work after the completion of a period of leave taken pursuant to this subclause shall be entitled to the position which she held immediately before proceeding on such leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (12), to the position the employee held immediately before such transfer.

Where such position no longer exists but there are other positions available, for which the employee is qualified and the duties of which the employee is capable of performing, the employee shall be entitled to a position as nearly comparable in status and salary or wage to that of the employee’s former position.

(16) Parental Leave and Other Leave Entitlements

Provided the aggregate of leave including leave taken pursuant to subclauses (12) and (15) hereof does not exceed 52 weeks:

(a) An employee may, in lieu of or in conjunction with maternity leave, take any annual leave or long service leave or any part thereof to which the employee is then entitled.

(b) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave), shall not be available to an employee during absence on parental leave.

(17) Termination of Employment

(a) An employee on parental leave may terminate their  employment at any time during the period of leave by notice given in accordance with this award.

(b) An employer shall not terminate the employment of an employee on the ground of the employee’s absence on maternity leave or, in the case of a female employee, her pregnancy, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(18) Replacement Employees

(a) A replacement employee is an employee specifically engaged as a result of an employee proceeding on parental leave.

(b) Before an employer engages a replacement employee under this subclause, the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

(c) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising rights under this clause, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(d) Provided that nothing in this subclause shall be construed as requiring an employer to engage a replacement employee.

(e) A replacement employee shall not be entitled to any of the rights conferred by this clause except where the employee’s employment continues beyond the 12 months qualifying period.

18. Clause 21. – Board of Reference:  Delete this clause and insert the following in lieu thereof:

21. – INTRODUCTION OF CHANGE AND REDUNDANCY

The Termination of Employment, Introduction of Change and Redundancy General Order (85 WAIG 1667) as published in the Western Australian Industrial Gazette as varied from time to time, is hereby incorporated in and shall be deemed to be part of this award.

19. Clause 23. – Part-Time Workers:  Delete this clause and insert the following in lieu thereof:

23. – TYPES OF EMPLOYMENT

Employees under this award must be engaged as full-time, part-time or casual employees.  At the time of engagement, an employer will inform each employee of the terms of their engagement, and in particular stipulate whether they are full-time, part-time or casual.  This advice must be confirmed in writing within two weeks of commencement of employment.

(1) Full-time employees

(a) Full-time employees will be engaged for an average of thirty-eight hours per week in accordance with clause 7 – Hours.

(2) Part-time employees

(a) An employer may employ part-time employees in any classification in this award.

(b) A part-time employee is an employee who:

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

(ii) has reasonably predictable hours of work; and

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

(c) At the time of engagement the employer and the 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.

(d) Any agreed variation to the regular pattern of work will be recorded in writing.

(e) An employer is required to roster a part-time employee for a minimum of three (3) consecutive hours on any shift.

(f) All time worked in excess of the hours as mutually arranged will be overtime and paid for at the rates prescribed in clause 10 - Overtime, of this award.

(g) A 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.

(3) Casual Employees

(a) A casual employee is to be one engaged and paid as such. 

(b) Before engaging a person for casual employment, the employer must inform the person

(i) that the employment is casual

(ii) that there will be no entitlement to paid leave, other than bereavement leave

(c) An employer shall state by whom the employee is employed, the job to be performed, the classification level, the actual or likely number of hours required, the relevant rate of pay and that they accrue no entitlements to paid leave with exception of bereavement leave.

(d) A casual employee for working ordinary time shall be paid an hourly rate calculated on the basis of one thirty-eighth of the weekly award wage prescribed in clause 24 - Wages for the work being performed plus a casual loading of 20 per cent. 

(e) A casual employee shall be employed for a minimum of three (3) consecutive hours on each occasion.

20. Clause 25. – Payment of Wages:  Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) The provisions of subclause (1) of this clause may be altered by agreement between the employer, the union and the employee or employees concerned.  If no agreement can be reached under this subclause the dispute will be resolved through the Dispute Settlement Procedure.

21. Clause 27. – Liberty to Apply.  Delete this clause and insert the following in lieu thereof:

27. – resolutions of disputes requirements

1. Subject to the provisions of the Industrial Relations Act 1979 (WA) (as amended) in the event of any dispute or matter arising under this award the following procedure shall apply:

(a) Step 1

As soon as practicable after the matter has arisen, it shall be considered jointly by the appropriate supervisor and the employee or employees concerned and, where requested, employer/employee representatives.

(b) Step 2

If the dispute is not resolved it shall be considered jointly by the employer, the employee or employees concerned and, where requested, employer/employee representatives.

(c) Step 3

The employer and employee(s) concerned (and their representatives where requested) will attempt to resolve the matter prior to it being referred to the Commission however, if the matter is not resolved, it may then be referred to the Western Australian Industrial Relations Commission for assistance in its resolution.

2. At all times whilst a dispute or matter is being resolved in accordance with this clause, normal work will continue unless an employee has a reasonable concern about their health and safety.

22. Clause 29. – Superannuation:   Delete this clause and insert the following in lieu thereof.

29. – SUPERANNUATION

(1) Superannuation Legislation

(a) 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 legislation as varied from time to time governs the superannuation rights and obligations of employees and employers bound by the award..

(b) Notwithstanding (1)(a) above the following provisions apply.

(2) Contributions

(a) The employer shall contribute a minimum of 9% of ordinary time earnings per employee in accordance with subclause (3) hereof.

(b) Employees' Additional Voluntary Contributions:

Where the rules of the fund allow an employee to make additional contributions to the fund the employer shall, where an election is made, upon the direction of the employee deduct contributions for the employee's wages and pay them to the fund in accordance with the direction of the employee and the rules of the fund.

(3) Compliance, Nomination and Transition

(a) For the purposes of this clause -

(i) the fund or scheme is a complying fund or scheme within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; and

(ii) under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme;

(b) The employee shall be entitled to nominate the complying superannuation fund or scheme to which contributions are to be made.  If the employee does not nominate a fund or scheme, or until such time as an employee nominates a fund or scheme, superannuation contribution shall be paid into the default fund;

(c) The default fund shall be Westscheme Super Fund;

(d) The employer shall notify the employee of the entitlement to nominate a complying superannuation fund or scheme within fourteen (14) days;

(e) Each employee shall be eligible to receive contributions from the date of eligibility, notwithstanding the date the membership application was forwarded to the Fund;

(f) A nomination or notification of the type referred to in paragraphs (b) and (d) hereof shall, subject to the requirements of regulations made pursuant to the Industrial Relations Legislation Amendment and Repeal Act 1995, be given in writing to the employer or the employee to whom such is directed;

(g) The employee and employer shall be bound by the nomination of the employee unless the employee and employer agree to change the complying superannuation fund or scheme to which contributions are to be made;

(h) The employer shall not unreasonably refuse to agree to a change of complying superannuation fund or scheme requested by an employee;

(i) In the event that an employee has not, after 28 days of commencing employment, nominated a complying fund into which contributions may be made, the employer will forward contributions and employee details to the default scheme, Westscheme Super Fund;

(j) Except where the Trust Deed provides otherwise employer contributions shall be paid on a monthly basis for each week of service that the eligible employee completes with the employer;

(k) All contributions into the nominated fund or scheme shall be paid on a quarterly or monthly basis and within thirty (30) days of the end of each month;

(l) For the purpose of this clause the employee's ordinary time earnings are as defined in the Superannuation Guarantee (Administration) Act 1992 and shall include the base classification rate, shift penalties together with any other all purpose allowance or penalty payment for work in ordinary time and shall include in respect of casual employees' the casual loading prescribed by this award, but shall exclude any payment for overtime worked, vehicle allowances, fares or travelling time allowances (excluding travelling related to distant work) commission or bonus as well as –

(i) periods of unpaid leave or unauthorized absences; or

(ii) annual leave or any other payments paid out on termination.

(m) The employer shall continue to contribute to the nominated fund or scheme on behalf of an employee in receipt of payments under the Workers' Compensation and Injury Management Act 1981 for not more than 52 weeks.

23. Clause 30. – Award Modernisation and Enterprise Consultation: Delete this clause and insert the following in lieu thereof:

30. – RIGHT OF ENTRY

An authorized representative of the union shall be entitled to exercise right of entry in accordance with the provisions of the Industrial Relations Act 1979 or any other legislation that makes provision for right of entry. 

24. Clause 31. – Supported Wage System for Employees with Disabilities: Insert new clause as follows:

31. – SUPPORTED WAGE SYSTEM FOR EMPLOYEES WITH DISABILITES

(1) Employees eligible for a supported wage

This clause defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this Award.  In the context of this clause, the following definitions will apply:

(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.

(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 s.12A of the Disability Services Act 1986, or if a part only has received recognition, that part.

(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 to the following schedule:

(b) Provided that the minimum amount payable shall be not less than as provided by the National Supported Wage System.

(c) Where a person's assessed capacity is 10 per cent, they shall receive a high degree of assistance and support.

(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:

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

(b) the employer and an Accredited Assessor from a panel agreed by the parties to the Award and the employee.

(5) Lodgement 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 Commission.

(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.

(6) Review of assessment

The assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonable request for such a review.  The process of review shall be in accordance with the procedures for assessing capacity under the Supported Wage System.

(7) Other terms and conditions of employment

Where an assessment has been made, the applicable percentage shall apply to the wage rate only. Employees covered by the provisions of the clause will be entitled to the same terms and conditions of employment as all other employees covered by this Award paid on a pro rata basis.

(8) Workplace adjustment

An employer wishing to employ a person under the provisions of this clause shall take reasonable steps to make changes in the workplace to enhance the employee's capacity to do the job.  Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other employees in the areas.

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

(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 as provided by the National Supported Wage System.

(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 4 of this clause.

25. Clause 32. – Other Laws Affecting Employment.  Insert new clause as follows.

32. – OTHER LAWS AFFECTING EMPLOYMENT

(1) INDUSTRIAL RELATIONS ACT 1979

www.wairc.wa.gov.au

(2) MINIMUM CONDITIONS OF EMPLOYMENT ACT 1993

www.slp.wa.gov.au

2005 WAIRC 01715

Western Australian Industrial Gazette vol. 85, p. 1667.

(8) LONG SERVICE LEAVE STANDARD PROVISIONS

www.wairc.wa.gov.au  (under General Orders)

26. Clause 33 – Where to go for Further Information.  Insert new clause as follows

33. – WHERE TO GO FOR FURTHER INFORMATION

(1) Liquor, Hospitality and Miscellaneous Union

Western Australian Branch

Telephone:  08 9388 5400

Facsimile:  08 9382 3986

Email:  lhmuwa@lhmu.org.au

(2) Chamber of Commerce and Industry of Western Australia

180 Hay Street

EAST PERTH   WA   6004

Telephone:  08 9365 7555.

Facsimile:  08 9365 7550

(3) Western Australian Industrial Relations Commission

Level 16, 111 St Georges Terrace

PERTH   WA   6000

Telephone:  08 9420 4444

Facsimile:  08 9420 4500

Email:  webmaster@wairc.wa.gov.au

Web:  www.wairc.wa.gov.au

Toll Free:  1800 624 263

(4) Department of Consumer & Employment Protection, Labour Relations

3rd Floor, Dumas House

2 Havelock Street

WEST PERTH   WA   6005

Telephone:  08 9222 7700

Facsimile:  08 9222 7777

Email:  labourrelations@docep.wa.gov.au

Wageline:  1300 655 266

27. Appendix – Resolution of Disputes Requirement:  Delete this appendix in its entirety.

28. Appendix - S.49B – Inspection Of Records Requirements:  Delete this appendix in its entirety.

29. Schedule B – Respondents:  Delete this schedule and insert the following in lieu thereof:

SCHEDULE B. - RESPONDENTS

SECURE PARKING

Level 4 / 517-533 Hay St Perth 6805

WILSON PARKING

Perth Level 8, 191 St Georges Terrace 6000

KINGS COMPLEX PARKING

17 Hay St Perth 6000

AIRPORT SECURITY PARKING

Perth Airport Domestic 6105

CAVES CARAVAN PARK YALLINGUP

Yallingup Beach Rd Yallingup 6282

ACACIA CARAVAN PARK

603 Bussell Hwy Busselton 6280

GORGES CARAVAN PARK PTY LTD

45 Brown Ave Dalkeith 6009

CENTRAL CARAVAN PARK

34 Central Ave Redcliffe 6104

KENLORN CARAVAN PARK

224 Treasure Rd Queens Park 6107

GREENHEAD CARAVAN PARK

9 Greenhead Rd Greenhead 6514