HOTEL AND TAVERN WORKERS' AWARD, 1978

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES on the Commission's own motion

CORAM Chief Commissioner A R Beech

DATE tHURSday, 30 april 2009

FILE NO/S APPL 3 OF 2009

CITATION NO. 2009 WAIRC 00229

Result Award varied

Representation Ms J. O'Keefe, on behalf of the Liquor, Hospitality and Miscellaneous Union

 Ms A. Lynch and later Mr R. Ballucci, on behalf of the Western Australian Hotels and Hospitality Association Incorporated (Union of Employers)

Order

HAVING heard Ms J. O'Keefe on behalf of the Liquor, Hospitality and Miscellaneous Union and Ms A. Lynch and later Mr R. Ballucci on behalf of the Western Australian Hotels and Hospitality Association Incorporated (Union of Employers), the Commission, pursuant to the powers conferred on it under s 40B(1)(d) the Industrial Relations Act, 1979, hereby orders –

THAT the Hotel and Tavern Workers' Award, 1978 be varied in accordance with the following schedule and that such variations shall have effect from the first pay period commencing on or after the 30th day of April 2009.

Chief Commissioner A R Beech

SCHEDULE

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

1. - TITLE

This award shall be known as the Hotel and Tavern Workers' Award, and replaces award numbered 28 of 1974, as amended.

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

2. - ARRANGEMENT

1. Title

2. Arrangement

3. Area

4. Scope

5. (deleted)

6. Definitions

7. Contract of Service

8. Hours

9. Additional Rates for Ordinary Hours

10. Overtime

11. Casual Employees

12. Part-Time Employees

13. Meal Breaks

14. Meal Money

15. Personal Leave (Sick Leave and Carers Leave)

16. Bereavement Leave

17. Public Holidays

18. Annual Leave

19. Long Service Leave

20. Payment of Wages

21. Wages

21A Minimum Adult Award Wage

21B (deleted)

22. Junior Employees

23. Apprentices

24. Option for Annualised Salary

25. Higher Duties

26. Uniforms and Laundering

27. Protective Clothing

28. Employee Equipment

29. No Reduction

30. Board and/or Lodging

31. Travelling Facilities

32. Employment Record

33. Roster

34. Change and Rest Rooms

35. First Aid Kit

36. Posting of Award and Union Notices

37. Union Delegates and Meetings

38. Superannuation

39. Supported Wage System for Employees with Disabilities

40. Prohibition of Contracting Out of Award

41. District Allowance

42. Breakdowns

43. Parental Leave

44. National Training Wage

45. Enterprise Flexibility

46. Right of Entry

47. Termination, Introduction Of Change And Redundancy

48. Anti-Discrimination

49. Resolution of Disputes

50. Further Claims

Schedule A - Named Parties

3. Clause 4. – Scope:  Delete this clause and insert the following in lieu thereof:

4. - SCOPE

This award shall apply to all employees employed in the callings described in Clause 21. – Wages of this award, in any establishment, or part thereof licensed pursuant to the Liquor Control Act, 1988 with a Hotel Licence, Hotel Restricted Licence, Tavern Licence, Small Bar Licence, or Special Facility Licence granted pursuant to that Act and the Liquor Control Regulations, 1989.

4. Clause 5. – Term:  Delete this clause.

5. Clause 6. – Definitions:  Insert subclause (33) as follows:

 (33) Member of the employee's family or household means any of the following persons -

(a) the employee's spouse or de facto partner;

(b) a child, step‑child or grandchild of the employee (including an adult child, step‑child or grandchild);

(c) a parent, step‑parent or grandparent of the employee;

(d) a sibling of the employee;

(e) any other person who, at or immediately before the relevant time for assessing the employee's eligibility to take leave, lived with the employee as a member of the employee's household.

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

15. – PERSONAL LEAVE (Sick Leave and Carers Leave)

(1) Sick Leave

 (a) An employee who is unable to attend or remain at his 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 one twenty sixth of a week for each completed week of service with the 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 his entitlement to be 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.

(3) To be entitled to payment in accordance with this clause the employee shall as soon as reasonably practicable advise the employer of his inability to attend for work and the estimated duration of the absence.

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

(5) (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 he is 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 his place of residence or a hospital as a result of his personal ill health or injury for a period of seven consecutive days or more and he produces a certificate from a registered medical practitioner that he was 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 he is unable to attend for work on the working day next following his 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 he 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 18 - 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 18. - Annual Leave shall be deemed to have been paid with respect to the replaced annual leave.

(6) Where a business has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with the provisions of the Long Service Leave Act 1958, the paid sick leave standing to the credit of the employee at the date of transmission from service with the transmittor shall stand to the credit of the employee at the commencement of service with the transmittee and may be claimed in accordance with the provisions of this clause.

(7) 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:

(a) the employee's own serious and wilful misconduct; or

(b) the employee's gross and wilful neglect;

in the course of the employee's employment.

(8) Carer's Leave

(a) Subject to paragraph (c) of this subclause an employee is entitled to use any part of the employee's entitlement under subclause (1) of this clause as paid Carer's Leave.

(b) Paragraph (c) applies to an employee if, at a particular time ("the time"), the employee -

(i) is employed by an employer; and

(ii) for a continuous period of 12 months immediately before the time, has been in continuous service with the employer.

(c) The employee is not entitled to take paid carer's leave at the time if, during the period 12 months ending at the time, the employee has already taken a total amount of paid carer's leave that is as much as the entitlement accrued by the employee under Subclause (1) during that period.

(9) Unpaid Carer's Leave

(a) Subject to paragraph (b) of this subclause, an employee including a casual employee is entitled to Unpaid Carer's Leave of up to 2 days for each occasion (a "permissible occasion") on which a member of the employee's family or household requires care or support because of-

(i) an illness or injury of the member; or

(ii) an unexpected emergency affecting the member.

(b) an employee may take additional unpaid carer's leave by agreement with the employer.

(c) an employee is entitled to unpaid carer's leave for a particular permissible occasion only if the employee cannot take paid carer's leave pursuant to Subclause (8) during the period.

(10) Except for subclause (9) Unpaid Carers Leave the provisions of this clause do not apply to casual employees.

7. Clause 16. – Bereavement Leave: 

A. Delete paragraph (a)(ii) of subclause (1) of this clause and insert the following in lieu thereof:

 (1) (a) (ii) the child, step-child or grandchild of an employee (including an adult child, step-child or grandchild),

B. Add a new subclause (3) after subclause (2) of this clause as follows:

(3) A Casual employee is entitled to paid Bereavement Leave pursuant to this clause where the leave entitlement falls on their rostered shift.

8. Clause 18. – Annual Leave:  Delete subclause (1)(b) and insert the following in lieu thereof:

 (b) Where pursuant to the provisions of the Long Service Leave Act 1958, the period of continuous service which an employee has had with the transmittor (including any such service with any prior transmittor) is deemed to be service of the employee with the transmittee then that period of continuous service shall be deemed to be service with the transmittee for the purposes of this sub-clause.

9. Clause 19. – Long Service Leave:  Delete this clause and insert the following in lieu thereof:

19. - LONG SERVICE LEAVE

The provisions of the Long Service Leave Act 1958 apply to employees covered by this Award.

10. Clause 21. – Wages: Delete subclause (1) of this clause and insert the following in lieu thereof:

(1) The following shall be the minimum fortnightly rates of wage payable to full-time employees covered by this award –

11. Clause 21B. – Translation of Full Time and Part Time Employees:  Delete this clause.

12. Clause 22. – Junior Employees: 

A. Delete subclause (1) of this clause and insert the following in lieu thereof:

(1) Subject to the provisions of the Liquor Control Act, 1988, employees under the age of twenty-one years may be employed as junior employees in any of the occupations covered by this award, other than an apprenticeship trade.

B. Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) Employees under eighteen (18) years of age shall not be employed in the servicing of accommodation rooms without direct adult supervision.

13. Schedule A – Named Parties:  Delete this Schedule and insert the following in lieu thereof:

SCHEDULE A - NAMED PARTIES

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch

Western Australian Hotels and Hospitality Association Incorporated (Union of Employers)

Sheraton Perth Hotel, Perth

Travelodge Hotel, Perth

Osborne Park Hotel, Osborne Park

Princess Road Tavern, Balga

Rangeview Hotel, Eden Hill

Belmont Hotel, Cloverdale

Perth City Motel Thornlie, Thornlie

Lynwood Arms Tavern, Ferndale

Forrestfield Tavern, Forrestfield

Mt Henry Tavern, Manning

Hamilton Tavern, Hamilton Hill

South Street Ale House, Hilton

Coolbellup Hotel, Coolbellup

Kwinana Lodge Hotel, Parmelia

Greenwood Hotel, Greenwood

High Wycombe Tavern, High Wycombe

Pier Hotel, Esperance

Pier Hotel, Port Hedland

Merredin Oasis Hotel, Merredin

Wintersun Hotel Motel, Geraldton

Paraburdoo Inn, Paraburdoo

Tom Price Motor Hotel, Tom Price

Dampier Mermaid Hotel Motel, Dampier

Potshot Hotel Resort, Exmouth

Mercure Inn Continental Broome, Broome

Spinifex Hotel, Derby

Wyndham Town Hotel, Wyndham

14. Schedule B – Respondents: Delete this Schedule.

15. Delete the words: Dated at Perth this 11th day of January, 1978.