2009 WAIRC 00568
SECTION 40B VARIATION OF THE CLEANERS AND CARETAKERS AWARD, 1969
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES (COMMISSION'S OWN MOTION)
APPLICANT
-V-
(NOT APPLICABLE)
RESPONDENT
CORAM SENIOR COMMISSIONER J H SMITH
COMMISSIONER P E SCOTT
COMMISSIONER S M MAYMAN
DATE FRIDAY, 14 AUGUST 2009
FILE NO/S APPL 556 OF 2005
CITATION NO. 2009 WAIRC 00568

Result Award varied and consolidated


Representation Ms J O'Keefe and Mr K Sneddon on behalf of the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch
Mr D Jones on behalf of the Chamber of Commerce and Industry of Western Australia (Inc.)


Order
HAVING HEARD the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch and the Chamber of Commerce and Industry of Western Australia (Inc.), and having issued reasons for decision setting out proposed variations to the Cleaners and Caretakers Award, 1969 on 23 June 2009, and by consent, the Commission, pursuant to the powers conferred on it under s 40B of the Industrial Relations Act 1979, hereby orders:—
THAT the Cleaners and Caretakers Award, 1969 be varied in accordance with the following schedule and that such variations shall have effect from the beginning of the first pay period on or after 11 September 2009.




COMMISSION IN COURT SESSION

SCHEDULE


1. Delete the entire contents of the award and insert the following in lieu thereof:

Cleaners and Caretakers Award, 1969

1. - GENERAL

1. 1. - TITLE

This award shall be known as the Cleaners and Caretakers Award, 1969 and replaces Award No. 17 of 1948 as amended.


1.2. - ARRANGEMENT

1. GENERAL
1.1 Title
1.2 Arrangement
1.3 Area and Scope
1.4 Term
1.5 Definitions
1.6 Anti-discrimination

2. HOURS AND OVERTIME
2.1 Hours and Weekend Work
2.2 Overtime
2.3 Shiftwork
2.4 Higher Duties
2.5 Effect of 38 Hour Week

3. WAGES AND ALLOWANCES
3.1 Wages
3.2 Minimum Adult Award Wage
3.3 Supported Wage System
3.4 Special Rates and Conditions
3.5 Travelling Time and Expenses
3.6 Location Allowances
3.7 Payment of Wages
3.8 Superannuation
3.9 Time and Wages Record

4. LEAVE AND PUBLIC HOLIDAYS
4.1 Annual Leave
4.2 Leave for Illness or Injury
4.3 Carer's Leave
4.4 Parental Leave
4.5 Bereavement Leave
4.6 Long Service Leave
4.7 Public Holidays

5. TERMINATION AND REDUNDANCY
5.1 Contract of Service and Termination
5.2 No Reduction
5.3 Redundancy

6. OTHER
6.1 Introduction of Change
6.2 Safety Provisions
6.3 Award Modernisation and Enterprise Consultation
6.4 Resolution of Disputes
6.5 Union Right of Entry
6.6 Posting of Award and Union Notices

7. NAMED PARTIES TO THE AWARD

8. LIBERTY TO APPLY


1.3. - AREA AND SCOPE

1.3.1 This award applies to all employees (as defined in s 7 of the Industrial Relations Act 1979) in the callings set out in 3.1 – Wages who are employed in Western Australia by churches, clubs, local government, societies and/or organisations and private industry employers other than constitutional corporations.

1.3.2 Notwithstanding the provisions of 1.3.1 above, this award shall not apply to any employee who:

(1) carries out the duties of a verger in a church; or

(2) is otherwise subject to the terms and conditions of the:

(a) Cleaners and Caretakers (Car and Caravan Parks) Award 1975;

(b) Contract Cleaners Award, 1986; or

(c) Security Officers' Award.


1.4. – TERM

The term of this award shall be for a period of three years from the beginning of the first pay period commencing on or after 7 November 1969.


1.5. – DEFINITIONS

1.5.1 "Accrued Days Off" means the paid day(s) off accruing to an employee resulting from an entitlement to the 38 hour week as prescribed in 2.1  Hours and Weekend Work.

"Attendant" shall mean an employee who has the care of an arcade and/or entrance hall of a public building or similar place and shall include employees carrying out the duties of directing and/or escorting clients, customers or other persons in such places. The term shall include employees performing cleaning work in connection with parental rooms and/or rest rooms and/or staff lunch rooms and the making of tea and washing up of any utensils when necessary.

"Caretaker" shall mean an employee required to reside on, or near the employer's premises who shall do such work as the employer may direct. The term 'work' shall not include time spent by a caretaker sleeping or resting or otherwise being on the employer's premises other than for the purpose of carrying out their duties in cleaning and/or supervising cleaning and/or maintaining the premises of the employer in a clean condition.

"Casual Employee" shall mean an employee as defined in 5.1 - Contract of Service and Termination who is engaged by the hour.

"Cleaner" shall mean an employee other than a window cleaner substantially employed in performing cleaning work including glass partitions.

"Commission" means the Western Australian Industrial Relations Commission.

"Lift Attendant" shall mean an employee employed in any mechanical device running in a vertical shaft or well, within or attached to any building. Such device can be worked by any power other than hand, comprise a cage or platform and used for the purpose of raising or lowering persons or goods. Provided this shall not apply to any cage enclosure or platform erected on any mine used solely for mining purposes.

"Member of Employee's Family or Household" means any of the following persons:

(1) the employee's spouse or de facto spouse (including same sex partners);

(2) child, stepchild or grandchild of the employee (including an adult child, stepchild or grandchild);

(3) a parent, step-parent or grandparent of the employee;

(4) a sibling or step sibling of the employee; or

(5) 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.

"Part time Employee" shall mean an employee who is regularly employed who works a lesser number of hours than 38 per week.

"Rest Room Attendant" shall mean an employee employed in or in connection with toilets, rest rooms or parental rooms which are open to the public.

"Security Guard" shall mean an employee who is required to watch and/or guard and/or patrol the employer's buildings and/or premises.

"Security Guard (mobile)" means an employee who may be required to use a vehicle to patrol the employer's buildings and/or premises.

"Window Cleaner" shall mean an employee employed exclusively on window cleaning.


1.6. - ANTI-DISCRIMINATION

The provisions of this award shall be interpreted and applied so as not to discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984.


2. - HOURS AND OVERTIME

2.1. - HOURS AND WEEKEND WORK

2.1.1 Subject to the provisions of this clause 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 10 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 days off in each 12 month period. The accrued days off shall be taken at a time mutually acceptable to the employer and the employee.

2.1.2 By agreement between the union and an employer and in consultation with the employees covered by this award, the ordinary hours of an employee in lieu of the provisions of 2.1.1 hereof, may be worked:

(1) according to any existing arrangement being worked by other employees not covered by this award employed at the same establishment;

(2) within a 20 day, four week cycle with 0.4 of an hour of each day worked accruing as an entitlement to take the 20th day in each cycle as an accrued day off; or

(3) within a 10 day, two week cycle, with an adjustment to hours worked to enable 76 hours to be worked over nine days of the two week cycle and an entitlement to take the 10th day in each cycle as an accrued day off.

2.1.3 An employer and employee may by agreement substitute the accrued day off the employee is to take off for another day in which case the accrued day off shall become an ordinary working day.

2.1.4 Where accrued days off are allowed to accumulate, the employer may require that they be taken within 12 months of the employee becoming entitled to the accrued day off.

2.1.5 In addition to the foregoing the following specific provisions shall apply:

(1) Security Guard, Security Guard/Cleaner, Security Guard (mobile):

(a) The ordinary working hours on any day shall be worked within a spread of 10 hours and where a broken shift is worked on any day each portion of that shift shall be for a period of not less than three hours.

(b) The ordinary hours of duty shall be rostered over not more than six consecutive days in any one week.

(2) Cleaners, Attendants and Lift Attendants:

(a) The ordinary hours of work shall not exceed eight hours per day Monday to Friday inclusive and four hours on Saturday.

(b) Such hours shall be worked as follows:

(i) Cleaners –

Between 6.00 am and 7.00 pm Monday to Friday and between 6.00 am and 1.00 pm on Saturdays. Provided that in the case of any cleaner working a five day week, work may be performed between 6.00 am and 7.30 pm on Fridays. The starting and finishing times herein prescribed may be varied by arrangement between the employer and the union or pursuant to 6.4 - Resolution of Disputes.

(ii) Attendants –

Between 7.30 am and 6.00 pm Monday to Friday and between 7.30 am and 1.00 pm on Saturdays. The starting and finishing times herein prescribed may be varied by agreement between the employer and the union or pursuant to 6.4 - Resolution of Disputes; and

(iii) Lift Attendants –

Between 7.30 am and 6.00 pm Monday to Friday and between 7.30 am and 1.00 pm on Saturdays.

(3) All employees mentioned in this subclause (other than casual employees) who are employed in retail or wholesale sales establishments or establishments in which the majority of employees not subject to this award work a five day week, shall be rostered off duty on one Saturday in every period of two consecutive weeks, and the ordinary hours of duty in any or each of the weeks in that period may be increased by the ordinary hours usually worked by the employee on the Saturday on which they are rostered off.

(4) A meal break of not less than 30 minutes and not more than one hour shall be given and taken between 12.00 noon and 2.15 pm provided that this clause shall not apply to Security Guard, Security Guard/Cleaner or Security Guard (mobile) whose crib time shall be taken in the employer's time.

Provided further that by agreement in writing between the employer and the union, the foregoing time may be varied.

(5) In the week commencing on Monday immediately preceding Easter day the ordinary hours of work shall, in respect to any employer bound by The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 be 32 hours on the basis of eight hours each day, Monday to Thursday inclusive, without thereby making the employer liable for payment of overtime by reason of the fact that in a pay week of which any part of such period forms a part, the ordinary hours exceed 40.

2.1.6 Saturday and Sunday Work

(1) Employees whose hours are prescribed in 2.1.5(2) and who may be required to work ordinary hours between 6.00 am and 1.00 pm on Saturdays shall be paid at the rate of time and one quarter for such work on that day.

(2) Employees whose hours, where prescribed in 2.1.5(1), (2) and (3) allow ordinary hours to be worked on Saturdays and Sundays shall be paid at the rate of time and one half for such work on Saturdays and at the rate of time and three quarters for such work on Sundays.

2.1.7 The provisions of this clause apply to a part time employee in the same proportion as the hours normally worked bear to a full time employee.

2.1.8 Any dispute between an employer and the union concerning the operation of this clause shall be dealt with in accordance with the provisions of 6.4 - Resolution of Disputes.


2.2. - OVERTIME

2.2.1 (1) All time worked in excess of the ordinary hours prescribed in 2.1  Hours and Weekend Work of this award shall except as otherwise provided be paid for at the rate of time and a half for the first two hours and double time thereafter.

(2) In respect of those employees mentioned in 2.1.5(3)  Hours and Weekend Work where more than 38 hours are worked in any week during a period of two consecutive weeks for the purpose of giving effect to those employees being rostered off duty for one Saturday morning the provisions of this clause do not apply unless:

(a) more than 76 ordinary hours are worked in that two week period; or

(b) more than 38 ordinary hours are worked in that two week period if one week of a period of annual leave occurs in that two week period.

2.2.2 All time worked on a public holiday prescribed in 4.7  Public Holidays shall be paid for at the rate of double time and a one half.

2.2.3 All overtime worked on Sundays shall be paid for at the rate of double time.

2.2.4 (1) Subject to the provisions of 2.2.4(2) an employee, required to work overtime for more than two hours, shall be supplied with a meal by the employer or be paid $9.05 for a meal and, if owing to the amount of overtime worked, a second or subsequent meal is required the employee shall be supplied with such meal by the employer or paid $6.20 for each meal so required.

(2) The provisions of 2.2.4(1) do not apply:

(a) to any employee who lives in the locality in which the place of work is situated in respect of any meal for which they can reasonably go home; or

(b) in respect of any period of overtime for which the employee has been notified on the previous day or earlier that they will be required except where the employee has provided themselves with a meal or meals and is not required to work overtime or is required to work less overtime than the period notified, they shall be paid, for each meal provided and not required, the appropriate amount prescribed in 2.2.4(1).

2.2.5 When an employee is recalled to work after leaving the job they shall be paid for at least three hours at overtime rates.

2.2.6 (1) When overtime is necessary it shall be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days.

(2) An employee who works so much overtime between the termination of their ordinary work on one day and the commencement of the ordinary work on the next day that they have not had at least 10 consecutive hours off duty between those times shall, subject to this subclause be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(3) If, on the instructions of the employer, such an employee resumes or continues work without having had such 10 consecutive hours off duty, they shall be paid at double rates until the employee is released from duty for such a period and they shall then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

2.2.7 (1) Overtime rates prescribed by this clause shall not apply until after eight hours have been worked on each day or in the case of part time employees until after the ordinary rostered hours have been worked on that day.

(2) Overtime rates prescribed by this clause shall apply to all hours worked on days or shifts additional to the ordinary rostered days or shifts.

2.2.8 (1) By agreement between the employee and employer time off in lieu of payment for overtime may be granted proportionate to the payment to which the employee is entitled. Such time is to be taken in unbroken periods according to each period of overtime worked unless otherwise agreed between the employer and employee concerned.

(2) The actual period of time off may be accrued and taken at a time agreed between the employer and employee concerned.


2.3. - SHIFTWORK

2.3.1 A loading of fifteen per cent shall be paid for time worked on afternoon or night shift as defined hereunder:

(1) Afternoon Shift  commencing at or after 12 noon and before 6.00 pm

(2) Night Shift  commencing at or after 6.00 pm and at or before 4.00 am

2.3.2 This clause will not apply for any work done on Saturdays, Sundays or Public Holidays.


2.4. - HIGHER DUTIES

2.4.1 Any employee called upon to perform work carrying a higher minimum than their regular rate of pay for two hours in any day shall be paid such higher minimum for the whole of that day provided that acting time less than two hours in any one shift shall not be counted.

2.4.2 Any employee required to perform work in a lower grade for any shift or portion thereof shall not be reduced in wages whilst employed in such lower capacity.

2.4.3 Notwithstanding the provisions of this clause payment for higher duties shall not apply to an employee required to act in another position whilst the permanent employee is on a single accrued day off as prescribed by 2.1.2.


2.5. - EFFECT OF 38 HOUR WEEK

2.5.1 Termination

(1) An employee subject to the provisions of 2.1.1 who has not taken any accrued days off accumulated during a work cycle in which employment is terminated, shall be paid the total of hours accumulated towards the accrued days off for which payment has not already been made.

(2) An employee who has taken any accrued day off during a work cycle in which employment is terminated shall have the wages due on termination reduced by the total hours for which payment has already been made but for which the employee had no entitlement toward those accrued days off.

2.5.2 Workers' Compensation

(1) 20 Day Work Cycle

(a) Where an employee is on workers' compensation for periods for less than one complete 20 day work cycle, such employee will accrue towards and be paid for the succeeding accrued day off following such absence.

(b) An employee will not accrue accrued days off for periods of workers' compensation where such period of leave exceeds one or more complete 20 day work cycles.

(c) Where an employee is on workers' compensation for less than one complete 20 day work cycle and an accrued day off falls within the period, the employee will not be rerostered for an additional accrued day off.

(2) 12 Months' Work Cycle

(a) Where an employee is on workers' compensation for period for less than a total of 20 consecutive work days in a work cycle such employee will accrue towards and be paid for the succeeding accrued days off following such leave.

(b) Where an employee is on workers' compensation for periods greater than a total of 20 consecutive days in a work cycle such employee will have the period of workers' compensation added to the work cycle.

2.5.3 Leave Without Pay

(1) 20 Day Work Cycle

An employee who is absent on any form of leave without pay during a 20 day work cycle shall not accumulate an entitlement to an accrued day off for the period of such leave nor will the employee be entitled to an accrued day off whilst on leave without pay.

(2) 12 Months' Work Cycle

(a) An employee who is absent on any form of leave without pay for less than a total of five days in any work cycle shall not have payment reduced when proceeding on accrued day(s) off.

(b) An employee who is absent on any form of leave without pay for a total of five days or more in any work cycle will have such period of leave added to the work cycle.

(c) Where an employee is on workers' compensation for greater than 20 consecutive work days and an accrued day off as prescribed in 2.1.1. Work of this award falls within the period the employee shall be rerostered for another accrued day off on completion of the 20 week work cycle following such absence.


3. - WAGES AND ALLOWANCES

3.1. - WAGES

3.1.1 The minimum total rate of wage payable under this award shall be as follows:

(1)
Classification
Base Rate
Arbitrated Safety Net Adjustment
Award Rate


$
$
$






Attendant
331.70
232.00
563.70

Lift Attendant
336.10
232.00
568.10

Security Guard
338.30
232.00
570.30

Rest Room/Toilet Attendant
338.80
232.00
570.80

Security Guard / Cleaner
339.40
232.00
571.40

Cleaner
340.60
232.00
572.60

Window Cleaner
346.10
232.00
578.10

Security Guard (mobile)
354.20
232.00
586.20

Caretaker
357.20
232.00
589.20

(2) The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under the Arbitrated Safety Net Adjustment Principle.

These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received by employees since 1 November 1991 above the rate prescribed in the award, except where such absorption is contrary to the terms of an industrial agreement.

Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.

(3) Junior Employees -

Junior employees shall be paid the prescribed percentage of the adult rates for the class of work on which they are engaged.


%


Under 16 years of age
40
16 to 17 years of age
50
17 to 18 years of age
60
18 to 19 years of age
70
19 to 20 years of age
80
20 to 21 years of age
90

3.1.2 Casual Employees -

The ordinary hourly rate for a casual employee shall be calculated on the basis of a 20% loading in addition to the ordinary hourly rate for the classification in which they are employed.

3.1.3 Leading Hands -

Any employee in charge of other employees shall be paid in addition to the appropriate wage prescribed, the following –


Number of Employees Supervised

Per Week

(1)
If placed in charge of not less than three and not more than six other employees

14.20

(2)
If placed in charge of not less than six and not more than 10 other employees

25.30

(3)
If placed in charge of not less than 10 and not more than 15 other employees

31.50
(4)
If placed in charge of not less than 15 and not more than 20 other employees

38.40

(5)
If placed in charge of more than 20 other employees

49.50

3.1.4 The hourly rate shall be calculated by dividing weekly rate in 3.1.1 and 3.1.2 by 38.


3.2. - MINIMUM ADULT AWARD WAGE

3.2.1 No employee aged 21 or more shall be paid less than the Minimum Adult Award Wage unless otherwise provided by this clause.

3.2.2 The Minimum Adult Award Wage for full time employees aged 21 or more is $557.40 per week payable on and from the first pay period on or after 1 July 2008.

3.2.3 The Minimum Adult Award Wage is deemed to include all State Wage order adjustments from State Wage Case Decisions.

3.2.4 Unless otherwise provided in this clause adults employed as casuals, part time employees or piece rate employees or employees who are remunerated wholly on the basis of payment by result shall not be paid less than pro rata the Minimum Adult Award Wage according to the hours worked.

3.2.5 Employees under the age of 21 shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision in this award to the Minimum Adult Award Wage.

3.2.6 (1) The Minimum Adult Award Wage shall not apply to apprentices, employees engaged on traineeships or Jobskill placements or employed under the Commonwealth Government Supported Wage System or to other categories of employees who by prescription are paid less than the minimum award rate.

(2) Liberty to apply is reserved in relation to any special category of employees not included here or otherwise in relation to the application of the Minimum Adult Award Wage.

3.2.7 Subject to this clause the Minimum Adult Award Wage shall:

(1) apply to all work in ordinary hours.

(2) apply to the calculation of overtime and all other penalty rates, superannuation, payments during any period of paid leave and for all purposes of this award.

3.2.8 Minimum Adult Award Wage

The rates of pay in this award include the minimum weekly wage for employees aged 21 or more payable under the 2008 State Wage order. Any increase arising from the insertion of the minimum wage will 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 enterprise agreements, consent awards or award variations to give effect to enterprise agreements and over award arrangements. Absorption which is contrary to the terms of an agreement is not required.

Increases under previous State Wage Case Principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset the minimum wage.

3.2.9 Adult Apprentices

(1) Notwithstanding the provisions of this clause, an apprentice, 21 years of age or more, shall not be paid less than $488.40 per week on and from the commencement of the first pay period on or after 1 July 2008.

(2) The rate paid in the 3.2.9(1) above to an apprentice 21 years of age or more is payable on superannuation and during any period of paid leave prescribed by this award.

(3) Where in this award an additional rate is expressed as a percentage, fraction or multiple of the ordinary rate of pay, it shall be calculated upon the rate prescribed in this award for the actual year of apprenticeship.

(4) Nothing in this subclause shall operate to reduce the rate of pay fixed by the award for an adult apprentice in force immediately prior to 5 June 2003.


3.3. - SUPPORTED WAGE SYSTEM

3.3.1 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:

(1) "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 Wages System: Guidelines and Assessment Process".

(2) "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.

(3) "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 (Cth), as amended from time to time, or any successor to that scheme.

(4) "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.

3.3.2 Eligibility Criteria

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.

This clause does not apply to any existing employee who has a claim against the employer that 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.

The clause also does not apply to employers in respect of their facility, programme, undertaking, services or the like which receives funding under the Disability Services Act 1993 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 Act, or if a part has received recognition, that part.

3.3.3 Supported Wage Rates

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:

Assessed Capacity (clause 3.3.4)
% 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 $69.00 per week).

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

3.3.4 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:

(1) The employer and the union in consultation with the employee or, if desired by any of these; or

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

3.3.5 Lodgement of Assessment Instrument

(1) 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 Western Australian Industrial Relations Commission.

(2) 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.

3.3.6 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.

3.3.7 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.

3.3.8 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 area.

3.3.9 Trial Period

(1) 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 four weeks) may be needed.

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

(3) The minimum amount payable to the employee during the trial period shall be no less than $69.00 per week; or, in the case of paid rates award, the amount payable to the employee during the trial period shall be $69.00 per week or such greater amount as is agreed from time to time between the parties (taking into account the CentreLink income test free areas for earnings) and inserted into this award.

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

(5) 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 3.3.4.


3.4. - SPECIAL RATES AND CONDITIONS

3.4.1 Dressing Accommodation -

Suitable provisions shall, where practicable, be made by the employer on the premises for employees to change their clothing. Should any dispute arise as to the suitability of the accommodation so provided, the matter shall be dealt with in accordance with 6.4 - Resolution of Disputes.

3.4.2 Accommodation for Meals -

Employees shall be permitted to eat their meals in a convenient and clean place protected from the weather.

3.4.3 Boiling Water -

Employees shall have access to facilities to boil water.

3.4.4 Overalls and Uniforms -

Clean overalls and/or uniforms shall be supplied by the employer free of charge where the employer requires such to be worn.

3.4.5 Protective Clothing -

(1) 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.

(2) Where an employee is required to work in exposure to direct sunlight, the employer shall provide or make available protective clothing such as a hat, sunglasses, long clothing and sunscreen of at least SPF 30+.

(3) Where an employee during the course of duty may become wet, they shall be supplied free of cost with protective footwear. In the event of a dispute arising, the matter shall be dealt with in accordance with 6.4 - Resolution of Disputes clause of this award.

(4) The items referred to in this subclause shall remain the property of the employer.

(5) Employees, who are required to clean restrooms/toilets or use injurious acids and/or other injurious substances, shall be supplied with appropriate protective equipment which shall remain the property of the employer.

3.4.6 Appliances and Materials -

All appliances and materials including towels and dusters, required in connection with the performance of the employer's duties, shall be supplied in a safe condition to such employee by the employer without charge.

3.4.7 Washing -

Where an employee is called upon to wash towels and dusters the following payments shall be made:

(1) Washing towels  38 cents each.

(2) Washing dusters  29 cents each.

3.4.8 Window Cleaning -

(1) 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 $2.80 cents per day.

(2) Where an employee is required to clean windows from a swinging scaffold or similar device they shall be paid 47 cents per hour extra for every hour or part thereof so worked.

(3) No employee shall be required to clean the outside of windows in a dangerous situation after daylight.

3.4.9 Split Shifts -

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 $3.15 per day shall be paid. This allowance shall not apply to caretakers.

3.4.10 A cleaner shall not be required to work from the top of a ladder more than three metres long which rests on the ground or floor level.

3.4.11 (1) Subject to 3.4.11(2) a security guard and/or shift employee shall only be permitted to leave the employment premises in the case of a personal illness or injury or an illness, injury or unexpected emergency affecting a member of the employee's family or household as defined in 1.5 - Definitions.

(2) This clause shall only apply provided that the employee has contacted the employer or one of the employer's nominated representatives, who shall authorise such absence.

3.4.12 Lift Attendants -

Suitable seating accommodation for the attendant shall be provided in lifts if requested.

3.4.13 Toilet Cleaning -

All employees called upon to clean toilets shall receive an allowance as follows -


Number of Toilets
Per Week


$



(1)
five toilets or greater but less than 10 toilets per day

4.40
(2)
10 toilets or greater but less than 30 toilets per day

13.10
(3)
30 toilets or greater but less than 50 toilets per day

26.10
(4)
50 toilets or greater per day

32.70

For the purpose of this clause, one metre of urinal shall count as one toilet and three urinal stalls shall count as one toilet.

3.4.14 Security Guard -

(1) Where a security guard is required to patrol in the open air, waterproof coats and boots shall be provided by the employer free of cost. Those items shall remain the property of the employer and shall be returned by the employee on the termination of employment.

(2) The employer shall supply and maintain torches, etc, free of cost to the employee.

3.4.15 Vehicle Allowances -

(1) 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 table set out in clause 3.4.16(4) below. Notwithstanding anything contained in this subclause the employer and the employee may make any other arrangement as to car allowance not less favourable to the employee.

(2) 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.

(3) A year for the purpose of this clause shall commence on the 1st day of July and end on the 30th day of June next following.

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

Schedule 1 - Motor Vehicle Allowance


Engine Displacement (in cubic centimetres)
Area and Details

Over 2600cc
1600cc -2600cc
1600cc & under

Rate per kilometre in cents

Metropolitan Area:

88.4
76.9
68.0
South West Land Division:

90.9
78.9
70.1
North of 23.5o South Latitude:

99.7
86.9
77.4
Rest of the State:

93.8
81.5
72.3
Motor vehicles with rotary engines are to be included in the 16002600cc category.


Schedule 2  Motor Cycle Allowance

Distance Travelled During a Year on Official Business

Rate per kilometre (cents)
All areas of the State
30.5


3.5. - TRAVELLING TIME AND EXPENSES

3.5.1 Employees required during working hours to work at more than one location shall be paid as if the employee had been working for the time spent in travelling between such work locations.

3.5.2 Employees required during working hours to work outside their usual place of employment and who are not eligible for a vehicle allowance pursuant to 3.4.15 shall be reimbursed reasonable travelling expenses incurred.


3.6. - LOCATION ALLOWANCES

3.6.1 Subject to the provisions of this clause, in addition to the rates prescribed in the wages clause of this award, an employee shall be paid the following weekly allowances when employed in the towns prescribed hereunder. Provided that where the wages are prescribed as fortnightly rates of pay, these allowances shall be shown as fortnightly allowances.

TOWN
PER WEEK

$


Agnew
18.70
Argyle
49.50
Balladonia
19.00
Barrow Island
32.20
Boulder
7.90
Broome
30.00
Bullfinch
8.80
Carnarvon
15.30
Cockatoo Island
32.90
Coolgardie
7.90
Cue
19.20
Dampier
26.00
Denham
15.30
Derby
31.20
Esperance
5.50
Eucla
20.90
Exmouth
27.20
Fitzroy Crossing
37.80
Goldsworthy
16.40
Halls Creek
43.40
Kalbarri
6.60
Kalgoorlie
7.90
Kambalda
7.90
Karratha
31.10
Koolan Island
32.90
Koolyanobbing
8.80
Kununurra
49.50
Laverton
19.10
Learmonth
27.20
Leinster
18.70
Leonora
19.10
Madura
20.00
Marble Bar
47.70
Meekatharra
16.50
Mount Magnet
20.60
Mundrabilla
20.50
Newman
17.90
Norseman
16.30
Nullagine
47.60
Onslow
32.20
Pannawonica
24.30
Paraburdoo
24.20
Port Hedland
25.90
Ravensthorpe
9.90
Roebourne
35.80
Sandstone
18.70
Shark Bay
15.30
Shay Gap
16.40
Southern Cross
8.80
Telfer
44.00
Teutonic Bore
18.70
Tom Price
24.20
Whim Creek
30.90
Wickham
29.90
Wiluna
19.00
Wittenoom
42.20
Wyndham
46.50

3.6.2 Except as provided in 3.6.3, an employee who has:

(1) a dependant shall be paid double the allowance prescribed in 3.6.1; or

(2) a partial dependant shall be paid the allowance prescribed in 3.6.1 plus the difference between that rate and the amount such partial dependant is receiving by way of a district or location allowance.

3.6.3 Where an employee:

(1) is provided with board and lodging by their employer, free of charge; or

(2) is provided with an allowance in lieu of board and lodging by virtue of the award or an order or agreement made pursuant to the Act;

such employee shall be paid 66 2/3% of the allowances prescribed in 3.6.1.

3.6.4 Subject to 3.6.2, junior employees, casual employees, part time employees, apprentices receiving less than adult rate and employees employed for less than a full week shall receive that proportion of the location allowance as equates with the proportion that their wage for ordinary hours that week is to the adult rate for the work performed.

3.6.5 Where an employee is on annual leave or receives payment in lieu of annual leave they shall be paid for the period of such leave the location allowance to which they would ordinarily be entitled.

3.6.6 Where an employee is on long service leave or other approved leave with pay (other than annual leave) they shall only be paid location allowance for the period of such leave they remain in the location in which they are employed.

3.6.7 For the purposes of this clause:

(1) "Dependant" shall mean –

(a) a spouse or defacto partner; or

(b) a child where there is no spouse or defacto partner;

who does not receive a location allowance or who, if in receipt of a salary or wage package, receives no consideration for which the location allowance is payable pursuant to the provisions of this clause.

(2) "Partial Dependant" shall mean a "dependant" as prescribed in 3.6.7(1) who receives a location allowance which is less than the location allowance prescribed in 3.6.1 or who, if in receipt of a salary or wage package, receives less than a full consideration for which the location allowance is payable pursuant to the provisions of this clause.

3.6.8 Where an employee is employed in a town or location not specified in this clause the allowance payable for the purpose of 3.6.1 shall be such amount as may be agreed between Australian Mines and Metals Association (Incorporated), the Chamber of Commerce and Industry of Western Australia (Inc) and the Trades and Labor Council of Western Australia or, failing such agreement, as may be determined by the Commission.

3.6.9 Subject to the making of a General Order pursuant to s 50 of the Act, that part of each location allowance representing prices shall be varied from the beginning of the first pay period commencing on or after the 1st day in July of each year in accordance with the annual percentage change in the Consumer Price Index (excluding housing), for Perth measured to the end of the immediately preceding March quarter, the calculation to be taken to the nearest 10 cents.


3.7. - PAYMENT OF WAGES

3.7.1 All employees shall be paid weekly or fortnightly at the option of the employer.

3.7.2 For the purpose of effecting the rostering off of employees on the weekly half holiday wages may be paid either for the actual hours worked each week or an amount being the calculated weekly average of the wages accruing over three consecutive weekly periods.

3.7.3 The provisions of this clause may be altered by agreement between the employer, the union and the employee or employees concerned. In the event of a dispute arising, the matter may be dealt with in accordance with 6.4 - Resolution of Disputes.

3.7.4 No deduction shall be made from an employee's wages unless the employee has authorised such deduction in writing.

3.7.5 Payment of wages by arrangement between an employer and employee shall be paid into the employee's bank account or other account or by cheque.

3.7.6 An employee shall be paid for accrued days off at the rate, including penalties, at which it was accumulated.


3.8. - SUPERANNUATION

3.8.1 The employer shall pay contributions in accordance with the Superannuation Legislation (as defined below) on behalf of each eligible employee to an Approved Fund chosen in accordance with 3.8.3.

3.8.2 Definitions:

"Approved Fund" means a superannuation fund or scheme that is a complying superannuation fund or scheme within the meaning of the superannuation legislation and to which, 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.

"Eligible employee" means an employee who is entitled to receive employer superannuation contributions in accordance with the superannuation legislation.

"Ordinary time earnings" means an employee's award classification rate (including supplementary payment) any regular over-award payment, district or location allowances, tool allowance, leading hand allowance and shift loading, including weekend and public holiday rates where the shift worked is part of the employee's ordinary hours of work and any other payments required pursuant to superannuation legislation.

All other allowances and payments are excluded.

"Relevant Fund" means an Approved Fund nominated by the employee, which is able to accept contributions from the employer.

"Superannuation Legislation" means the federal legislation as varied from time to time, governing superannuation rights and obligations, which includes 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.

3.8.3 Employer Contributions:

(1) An employer shall contribute no less than 9% of ordinary time earnings per eligible employee into one of the following approved funds:

(a) Westscheme;

(b) Any Approved Fund agreed between the employer, employees and the union;

(c) Any Approved Fund which has application to employees in the principal business of the employer, where employees covered by this award are a minority of award covered employees; or

(d) Any Relevant Fund which is nominated by the employee.

(2) Employer contributions shall be paid on a monthly basis for each week of service that the eligible employee completes with the employer.

(3) No contributions shall be made for periods of unpaid leave, or unauthorised absences in excess of 38 ordinary hours or for periods of workers' compensation in excess of 52 weeks.

No contributions shall be made in respect of annual leave paid out on termination or any other payments on terminations.

3.8.4 (1) Employees may nominate a Relevant Fund into which the contributions by an employer on behalf of the employee will be made.

(2) The employer shall notify the employee of the entitlement to nominate an Approved Fund as a Relevant Fund as soon as practicable.

(3) The employee and employer shall be bound by the nomination of the employee unless the employee and employer agree to change the Relevant Fund to which contributions are to be made.

(4) The employer shall not unreasonably refuse to agree to a change of Relevant Fund requested by an employee.

(5) The employer is required to make contributions to Westscheme until the employee nominates a Relevant Fund.

3.8.5 Subject to the Trust Deed to the fund of which an employee is a member, the following provisions will apply:

(1) Paid Leave

Contributions must continue whilst a member of a fund is absent on annual leave, personal leave, long service leave, public holidays, jury service, bereavement leave, or other paid leave.

(2) Unpaid Leave

Contributions will not be required in respect of any period of absence from work without pay of 38 ordinary hours or more.

(3) Work Related Injury or Illness

If an eligible employee's absence from work is due to work related injury or work related illness, contributions at the normal rate must continue for the period of the absence provided that:

(a) the member of the fund is receiving workers' compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements or the provisions of this award; and

(b) the person remains an employee of the employer.

3.8.6 Nothing contained herein shall serve to reduce any superannuation entitlement which an employee was receiving at the time this clause became effective.


3.9. - TIME AND WAGES RECORD

3.9.1 In this clause "relevant person" means:

(1) the employee concerned;

(2) if the employee is a represented person, their representative;

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

(4) an officer referred to in s 93 of the Act authorised in writing by the Registrar.

3.9.2 An employer is to ensure that the employment records of the employer are kept

(1) by:

(a) making entries in the English language in or on a separate page of a bound or loose-leaf book kept specifically for that purpose; or

(b) recording or storing the particulars required to be entered in the employment records by means of a mechanical, electronic or other device, but so that the particulars so recorded or stored will remain in the form in which they were originally recorded or stored and will be capable of being reproduced in written form in the English language;

(2) with only one employee's records appearing on any one page;

(3) so that the record for each pay period of each employee is identifiable; and

(4) in a manner that enables compliance with s 49D of the Act to be readily ascertained.

3.9.3 A person is not to alter employment records unless the alteration is annotated so as to identify:

(1) the nature of the alteration;

(2) the person making the alteration; and

(3) the date on which the alteration was made.

3.9.4 An employer must ensure that details are recorded of:

(1) the employee's name and, if the employee is under 21 years of age, their date of birth;

(2) any industrial instrument that applies;

(3) the date on which the employee commenced employment with the employer;

(4) for each day:

(a) the time at which the employee started and finished work;

(b) the period or periods for which the employee was paid; and

(c) details of work breaks including meal breaks;

(5) for each pay period:

(a) the employee's designation;

(b) the gross and net amounts paid to the employee under the award; and

(c) all deductions and the reasons for them;

(6) all leave taken by the employee, whether paid, partly paid or unpaid;

(7) the information necessary for the calculation of the entitlement to, and payment for long service leave under the Long Service Leave Act 1958, the Construction Industry Portable Paid Long Service Leave Act 1985 or the industrial instrument;

(8) any other information in respect of the employee required under the award to be recorded; and any information, not otherwise covered by this subsection, that is necessary to show that the remuneration and benefits received by the employee comply with the award.

3.9.5 The employer must ensure that:

(1) the employment records are kept in accordance with reg 4 of the Industrial Relations (General) Regulations 1997;

(2) each entry in relation to long service leave is retained:

(a) during the employment of the employee; and

(b) for not less than seven years after the employment terminates;

and

(3) each other entry is retained for not less than seven years after it is made.

3.9.6 (1) An employer, on not less than 24 hours written notice by a relevant person, must:

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

(b) let the person inspect the employment records at the company's office, the employee's worksite or other convenient place, during usual business hours.

(2) The duty placed on an employer by 3.9.6(1):

(a) continues so long as the records are required to be kept under 3.9.5;

(b) is not affected by the fact that the employee is no longer employed by the employer or that the industrial instrument no longer applies to the employee;

(c) includes the further duties:

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

(ii) to let the relevant person take copies of or extracts from the records;

and

(d) must be complied with not later than 24 hours after notice has been given.

3.9.7 Nothing in this award limits or otherwise affects the powers of an Industrial Inspector in relation to the inspection of employment records.


4. - LEAVE AND PUBLIC HOLIDAYS

4.1. - ANNUAL LEAVE

Accrual of Leave

4.1.1 (1) An employee is entitled to a period of four consecutive weeks leave annually with payment as prescribed.

(2) A security guard, security guard/cleaner, security guard (mobile) and a rest room attendant shall be allowed one week's leave annually in addition to the annual leave entitlements prescribed in 4.1.1(1)

(3) The entitlement to leave pursuant to this clause accrues on a weekly basis and is fully cumulative.

4.1.2 Where any award holiday falls during an employee's period of annual leave and is observed on a day that would have been an ordinary working day for the employee, a day for each such holiday shall be added to the employee's leave entitlement.

4.1.3 Any time that an employee is absent from work shall not count towards accrual of the employee's amount of annual leave, except time for which the employee is entitled to claim personal, carers or bereavement leave or time for public holidays, annual leave or long service leave as prescribed by this award.

4.1.4 Where an employee is engaged for part of the qualifying twelve monthly period in any classification referred to in 4.1.1(2) of this clause the period of annual leave to which they are entitled pursuant to 4.1.1(1) shall be increased by 0.731 hours for each week so engaged.

4.1.5 When an employee proceeds on the first four weeks' of the annual leave prescribed by 4.1.1 there will be no accrual towards an accrued day off as prescribed in 2.1  Hours and Weekend Work. Accrual towards an accrued day off shall continue during any other period of annual leave prescribed by this clause.

Payment for Leave

4.1.6 Before going on leave an employee 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.

4.1.7 (1) In addition to the payment for annual leave an employee shall be paid a loading of 17.5% calculated on their ordinary rate of wage.

(2) Provided that where the employee would have received any additional rates for the work performed in ordinary hours as prescribed by this agreement, had they not been on leave during the relevant period and such additional rates would have entitled the employee to a greater amount than the loading of 17.5%, then such additional rates shall be added to the ordinary rate of wage in lieu of the 17.5% loading.

(3) Provided further, that if the additional rates would have entitled the employee to a lesser amount than the loading of 17.5%, then such loading of 17.5% shall be added to their ordinary rate of wage in lieu of the additional rates.

Payment of Leave on Termination

4.1.8 (1) (a) If an employee lawfully leaves the employment, or the employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.9231 hours pay in respect of each completed week of continuous service at the rate of pay prescribed in 4.1.1 and 4.1.6.

(b) In the case of a Security Guard, Security Guard/Cleaner, Security Guard (mobile) or rest room attendant the employee shall be paid 3.6541 hours' pay for each completed week of continuous service at the rate of pay prescribed in 4.1.1 and 4.1.6.

(2) An employee whose employment terminates and who has not taken their leave prescribed under this clause shall be paid as prescribed in 4.1.1 and 4.1.6 in lieu of so much of that leave as has not been taken unless:

(a) the employee has been justifiably dismissed for serious misconduct; and

(b) the leave relates to a year of service that was completed after the serious misconduct occurred.

(3) An employee who has been justifiably dismissed for serious misconduct will be paid pursuant to 4.1.1 and 4.1.6 for leave accrued in all years of service completed prior to the serious misconduct.

Taking of Leave

4.1.9 (1) Where requested by the employee the annual leave prescribed in this clause shall be taken in two portions, provided that no portion shall be less than two consecutive weeks.

(2) Provided further, that by mutual agreement between the employer and employee, the annual leave may be further split on one additional occasion, provided that no portion shall be less than one week.

4.1.10 (1) Notwithstanding anything else herein contained an employer who observes a Christmas closedown for the purpose of granting annual leave may require an employee to take annual leave in not more than two periods, but neither of such periods shall be less than one week.

(2) In the event of an employee being employed for only a portion of a year, the employee shall only be entitled, to annual leave on full pay as is proportionate to their length of service during that period with the employer and, if such leave is not equal to the leave given to the other employees, they shall not be entitled to work or pay whilst the other employees are on leave on full pay.

(3) (a) An employee who is not entitled to work or pay pursuant to 4.1.10(2) above may seek an agreement with their employer to be paid leave and loading in advance of its accrual.

(b) The employer may deduct from an employee's termination pay monies equal in value to the leave that has been paid in advance pursuant to 4.1.10(3)(a) above, but has not subsequently accrued in circumstances where the employee does not remain in employment for sufficient time to accrue the paid leave. Such deduction shall be based on the rate of pay applying at the time the advance paid leave was taken.

4.1.11 (1) Where an employer and an employee have not agreed when the employee is to take their annual leave, subject to 4.1.11(2) the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annual leave the entitlement to which accrued more than 12 months before that time.

(2) The employee is to give the employer at least two weeks' notice of the period during which the employee intends to take their leave.

4.1.12 Except as provided in this clause an employer may specify a reasonable period during which annual leave may not be taken to meet production requirements at the workplace concerned.

4.1.13 Subject to 4.1.11 an employer may require an employee to take annual leave within 12 months of such leave falling due.

Part Time Employees and Annual Leave

4.1.14 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 qualifying period bears to thirty eight.

Casual Employees and Unpaid Leave.

4.1.15 The provisions of this clause do not apply to casual employees, except that a casual employee shall be allowed four weeks unpaid leave every period of 12 months service.


4.2. - LEAVE FOR ILLNESS OR INJURY

4.2.1 (1) An employee who is unable to attend or remain at the 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.

(2) Entitlement to payment shall accrue at the rate of 1.46 hours for each completed week of service up to 76 hours per annum (i.e. two weeks per annum).

(3) 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.

4.2.2 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.

4.2.3 (1) To be entitled to payment in accordance with this clause the employee shall as soon as reasonably practicable advise the employer of their inability to attend for work due to illness or injury and the estimated duration of the absence.

(2) Provided that such advice, other than in extraordinary circumstances, shall be given to the employer within 24 hours of the commencement of the absence.

4.2.4 The provisions of this clause do not apply to an employee who fails to produce evidence that would satisfy a reasonable person of the entitlement, provided that the employee shall not be required to produce such evidence with respect to absences of two days or less, unless after two such absences in any year of service the employer requests in writing that the next and subsequent absences in that year, if any, shall be accompanied by such certificate.

4.2.5 (1) 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 absent on annual leave and an employee may apply for and the employer shall grant paid sick leave in place of paid annual leave.

(2) Application for replacement leave 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 they produce a certificate from a registered medical practitioner that they 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 4.2.3 if the employee is unable to attend for work on the working day next following their annual leave.

(3) 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.

(4) (a) Where paid sick leave has been granted by the employer in accordance with 4.2.5(1), (2) and (3), that portion of the annual leave equivalent to the paid sick leave is replaced by the paid sick leave.

(b) 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 4.1  Annual Leave.

(5) 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 4.1  Annual Leave shall be deemed to have been paid with respect to the replaced annual leave.

4.2.6 Where a business has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with the 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.

4.2.7 The provisions of this clause with respect to payment do not apply to employees who are:

(1) entitled to payment under the Workers' Compensation and Injury Management Act 1981; nor to

(2) 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 their employment.

4.2.8 The provisions of this clause do not apply to casual employees.

4.2.9 (1) An employee who works 40 actual hours each week during a particular work cycle shall be paid the wages he 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.

(2) 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.

(3) 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 2.1.1 and 2.1.2 unless such illness is for a period of seven consecutive days or more and in all other respects complies with the requirements of 4.2.5 hereof.

4.2.10 An employee whilst on paid sick leave shall continue to accrue an entitlement to an accrued day off as prescribed in 2.1.  Hours and Weekend Work.


4.3. – CARER'S LEAVE

4.3.1 An employee other than a casual employee is entitled to use up to 10 days of their sick leave entitlement in any given year as paid carer's leave to provide care or support to a member of the employee's family or household who requires care or support because of:

(1) an illness or injury to the member; or

(2) an unexpected emergency affecting the member.

4.3.2 An employee, including a casual employee, is entitled to unpaid carer's leave of up to two days for each occasion (a "permissible occasion") on which a member of the employee's family or household requires care or support because of:

(1) an illness or injury to the member; or

(2) an unexpected emergency affecting the member.

4.3.3 An employee is only entitled to take unpaid carer's leave if the employee cannot take paid carer's leave.

4.3.4 For the purposes of this clause a "member of the employee's family or household" is defined in 1.5 - Definitions.

4.3.5 The employee is required to provide to the employer evidence that would satisfy a reasonable person of the entitlement to leave under this clause.


4.4. - PARENTAL LEAVE

4.4.1 Definitions

For the purposes of this clause:

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

(1) is not the child or the stepchild of the employee or the employee's spouse or the employee's de facto partner;

(2) is less than five years of age; and

(3) has not lived continuously with the employee for six months or longer;

"continuous service" means service under an unbroken contract of employment and includes any period of leave or absence authorised by the employer or by an employer-employee agreement, an award, a contract of employment or the Minimum Conditions of Employment Act 1993;

"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 spouse or de facto partner, as the case may be, to give birth to a child; or if the employee could not obtain a medical certificate, the date of birth of the child that could reasonably be expected if the pregnancy were to go to full term;

"employee" does not include a casual employee who is not an eligible casual employee;

"eligible casual employee" means a casual employee who:

(1) has been engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and

(2) but for an expected birth of a child to the employee or the employee's spouse or de facto partner or an expected placement of a child with the employee with a view to adoption of the child by the employee would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

Without limiting the above, a casual employee is also an eligible casual employee if:

(1) the employee was engaged by a particular employer on a regular and systematic basis for a sequence of periods during a period, "the first period of employment", of less than 12 months;

(2) at the end of the first period of employment, the employee ceased, on the employer's initiative, to be so engaged by the employer;

(3) the employer later again engaged the employee on a regular and systematic basis for a further sequence of periods during a period "the second period of employment", that started not more than three months after the end of the first period of employment;

(4) the combined length of the first period of employment and the second period of employment is at least 12 months; and

(5) the employee, but for an expected birth of a child to the employee or the employee's spouse or de facto partner or an expected placement of a child with the employee with a view to the adoption of the child by the employee would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis.

4.4.2 Eligibility for Parental Leave

(1) An employee is entitled to take up to 52 consecutive weeks of unpaid leave in respect of the:

(a) birth of a child to the employee or the employee's spouse or de facto partner; or

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

(2) An employee is not entitled to take parental leave unless the employee has:

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

(b) given the employer at least 10 weeks' written notice of their intention to take the leave.

(3) The requirement for 10 weeks' written notice in 4.4.2(2) does not apply if it was not reasonably practicable for the employee to comply because of:

(a) the premature birth of the employee's child;

(b) the date when the placement was expected to start; or

(c) any other compelling reason.

(4) An employee is not entitled to take parental leave at the same time as the employee's spouse or de facto partner but this subclause does not apply to one week's parental leave or short adoption leave of three weeks taken by the:

(a) spouse or de facto partner of the person who gave birth to the child, immediately after the birth of the child; or

(b) employee and the employee's spouse or de facto partner immediately after a child has been placed with them with a view to their adoption of the child.

(5) An employee seeking to obtain approval to adopt a child is entitled to a period of up to two days unpaid leave to attend any interviews or examinations required to obtain the approval. An employee is not entitled to such unpaid leave if their employer requires the employee to use other leave entitlements that are available to the employee. The two days unpaid leave is able to be taken as a single, unbroken, period or in any separate periods as agreed between the employee and their employer.

(6) An employee may request the employer to extend the period of parental leave to which the employee is entitled under 4.4.2(1) for a further consecutive period of not more than 52 consecutive weeks. Such a request is to be in writing and must be made at least four weeks before the day on which the employee would have finished parental leave if the request had not been made.

(7) An employee may request the employer to extend the period of parental leave which the employee is entitled under 4.4.2(1) to take at the same time as the employee's spouse or de facto partner for a further period of not more than seven consecutive weeks. Such a request is to be in writing and can be made at any time before the end of the leave referred to in 4.4.2(1).

(8) An employer is to agree to a request under 4.4.2(6) and 4.4.2(7) unless:

(a) the employer, having considered the employee's circumstances, is not satisfied that the request is genuinely based on the employee's parental responsibilities; or

(b) there are grounds to refuse the request relating to the adverse effect that agreeing to the request would have on the conduct of operations or business of the employer and those grounds would satisfy a reasonable person.

The employer is to give written notice of its decision and if the employer refuses the request, the notice is to set out the reasons for the refusal.

(9) The entitlement of an employee to parental leave is reduced by any period of parental leave taken by the employee's spouse or de facto partner in relation to the same child, except:

(a) the period of leave referred to in 4.4.2(1); or

(b) an extended period of parental leave agreed to pursuant to 4.4.2(7).

(10) An employee who has given notice of their 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 spouse or de facto partner, as the case may be, is pregnant and the expected date of birth (or, where relevant, stating that the employee's spouse or de facto partner has given birth to a living child and specifying the date of birth).

(11) An employee who has given notice of their intention to take parental leave or who is actually taking parental leave is to give notice supported by a statutory declaration to the employer of particulars of any period of parental leave taken or to be taken by the employee's spouse or de facto partner in relation to the same child.

(12) The period of parental leave may be shortened by written agreement between the employee and the employer.

4.4.3 Period of Leave and Commencement of Leave

(1) Subject to 4.4.4 and 4.4.6, a female employee who has given notice of her intention to take parental leave, other than for adoption, is to commence the leave six weeks before the estimated date of birth unless a medical practitioner has certified that she is fit to work closer to the date.

(2) An employee who has given notice of their intention to take parental leave must notify the employer of the dates on which the employee wishes to start and finish the leave. 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.

4.4.4 Transfer to a Safe Job

(1) This clause applies where an employee gives her employer a medical certificate from a medical practitioner containing a statement to the effect that, in the medical practitioner's opinion, the employee is fit to work, but that it is inadvisable for her to continue in her present position for a stated period because of:

(a) illness, or risks, arising out of her pregnancy; or

(b) hazards connected with that position.

(2) If the employee's employer thinks it to be reasonably practicable to transfer the employee to a safe job the employer must transfer the employee to the safe job, with no other change to the employee's terms and conditions of employment; or

(3) If the employee's employer does not think it to be reasonably practicable to transfer the employee to a safe job:

(a) the employee may take paid leave immediately for a period ending at the time mentioned in 4.4.4(5)(b); or

(b) the employer may require the employee to take paid leave immediately for a period ending at the time mentioned in 4.4.4(5)(b).

(4) If the employee takes paid leave under 4.4.4(3)(a) or 4.4.4(3)(b) during a period, the employer must pay the employee for that period the amount the employee would have received as her payment at the time the leave is taken. Where the number of hours cannot be determined, the total number of hours worked in the 52 weeks immediately before the leave is taken are to be averaged.

(5) If the employee takes paid leave under 4.4.4(3)(a) or 4.4.4(3)(b):

(a) the entitlement to leave is in addition to any other leave entitlement she has; and

(b) the period of leave ends at the earliest of whichever of the following times is applicable:

(i) the end of the period stated in the medical certificate;

(ii) if the employee's pregnancy results in the birth of a living child the end of the day before the date of birth;

(iii) if the employee's pregnancy ends otherwise than with the birth of a living child the end of the day before the end of the pregnancy.

(6) Leave taken under 4.4.4(3)(a) or 4.4.4(3)(b) shall be treated as parental leave for the purposes of 4.4.7, 4.4.8 and 4.4.9.

4.4.5 Cancellation of Parental Leave

(1) Parental leave applied for, but not commenced, will be cancelled when the pregnancy of an employee or an employee's spouse or de facto partner terminates other than by the birth of a living child or when the proposed placement of a child with an employee is cancelled.

(2) Where the pregnancy of an employee then on parental leave terminates other than by the birth of a living child, the employee has the right to resume work at a time nominated by the employer which date must not be less than four weeks from the date the employee gives notice in writing to the employer that the employee desires to resume work.

(3) Where an employee is on parental leave and gives birth to a living child but the child later dies, the employee's entitlement to parental leave is not affected by the death of a child, except that the employer may give written notice to the employee that from a stated day the parental leave is cancelled. The stated day must be no earlier than the later of four weeks from the day the notice was given or six weeks after the date of birth.

(4) Where an employee is on parental leave for adoption and the placement is cancelled or discontinued, the employee's entitlement to parental leave is not affected by the cancellation or discontinuation of the placement, except that the employer may give written notice to the employee that from a stated day the parental leave is cancelled. The stated day must be no earlier than four weeks from the day the notice was given.

(5) If during a substantial period while an employee is on parental leave the employee is not the child's primary care-giver and it is reasonable to expect that the employee will not again become the child's primary care-giver within a reasonable period, the employer may give written notice that from a stated day the parental leave is cancelled. The stated day must be no earlier than four weeks after the notice is given.

4.4.6 Special Parental Leave and Sick Leave

(1) Where the pregnancy of a female employee not then on parental leave has ended within 28 weeks before the expected date of birth of the child otherwise than by the birth of a living child then she must be entitled to such period of unpaid leave (to be known as special parental leave) as a duly qualified medical practitioner certifies as necessary before her return to work.

(2) Where a female employee not then on parental leave suffers 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 parental leave) as a duly qualified medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special parental leave and parental leave must not exceed 52 weeks, or a further extended period of parental leave agreed to under 4.4.2(6).

(3) For the purposes of 4.4.7, 4.4.8 and 4.4.9, parental leave includes special parental leave.

(4) An employee returning to work after the completion of a period of leave taken pursuant to this subclause will 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 4.4.4, to the position she 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 she is capable of performing, she will be entitled to a position as nearly comparable in status and pay to that of her former position.

4.4.7 Parental Leave and Other Leave Entitlements

(1) Provided the aggregate of leave including leave taken pursuant to 4.4.4 and 4.4.6 does not exceed 52 weeks, or a further extended period of parental leave agreed to under 4.4.2(6), an employee may, instead of or in conjunction with parental leave, take any annual leave or long service leave or any part of annual leave or long service leave to which the employee is then entitled.

(2) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave) will not be available to an employee during the employee's absence on parental leave.

4.4.8 Effect of Parental Leave on Employment

Absence on parental leave does not break the continuity of service of an employee but is not to be taken into account in calculating the period of service for any purpose of the award.

4.4.9 Termination of Employment

(1) 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.

(2) An employer must not terminate the employment of an employee on the ground of the employee's pregnancy or of the employee's absence on parental leave, but otherwise the rights of an employer in relation to termination of employment are not affected.

4.4.10 Return to Work after Parental Leave

(1) Upon finishing parental leave an employee will be entitled to the position which the employee held immediately before proceeding on parental leave or, in the case of an employee who was transferred to a safe job pursuant to 4.4.4, to the position which the employee held immediately before such transfer.

(2) If the position referred to in 4.4.10(1) 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 will be entitled to the position most comparable in status and pay to that of the employee's former position.

(3) 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 4.4.10(1), that subclause applies only in respect of the position held by the employee immediately before taking the acting or temporary position.

(4) An employee may request the employer to permit the employee, on finishing parental leave, to work on a modified basis in a position to which the employee is entitled under 4.4.10(1) or 4.4.10(2). Such a request is to be made in writing least seven weeks before the day on which the employee finishes parental leave.

(5) If the employee has been permitted to work on a modified basis, the employee may subsequently request the employer permit the employee to resume working on the same basis as the employee worked immediately before starting parental leave. Such a request is to be made in writing at least six weeks before the day the employee wishes to resume working on the basis as the employee worked immediately before starting parental leave.

(6) The employer is to agree to a request under 4.4.10(4) unless:

(a) the employer, having considered the employee's circumstances, is not satisfied that the request is genuinely based on the employee's parental responsibilities; or

(b) there are grounds to refuse the request relating to the adverse effect that agreeing to the request would have on the conduct of the operations or business of the employer and those grounds would satisfy a reasonable person.

(7) The employer is to agree to a request under 4.4.10(5) unless there are grounds to refuse the request relating to the adverse effect that agreeing to the request would have on the conduct of the operations or business of the employer and those grounds would satisfy a reasonable person.

(8) The employer is to give the employee written notice of its decision on a request under 4.4.10(4) or 4.4.10(5) and, if the request is refused, the notice is to set out the reasons for the refusal.

(9) If the employee has been permitted to work on a modified basis, the employer may subsequently require the employee to resume working on the same basis as the employee worked immediately before starting parental leave. The employer must give at least six weeks' notice before the day on which the employer wishes the employee to resume working on the basis as the employee worked immediately before starting parental leave. The employer is to give notice in writing setting out the reasons for the requirement.

(10) A requirement can be made under 4.4.10(9) if, and only if:

(a) the requirement is made on the grounds relating to the adverse effect that the employee continuing to work on a modified basis would have on the conduct of the operations of business of the employer and those grounds would satisfy a reasonable person; or

(b) the employee no longer has a child below school age.

(11) The employer is to give written notice of a decision under 4.4.10(9) and the notice is to set out the reasons for the decision.

(12) In 4.4.10(4) "modified basis" means a basis that involves the employee working

(a) on different days or at different times, or both; or

(b) on fewer days or for fewer hours, or both,

than the employee worked immediately before starting parental leave.

(13) 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 must 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 their rights under this clause, the employer must inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(d) Nothing in this subclause will be construed as requiring an employer to engage a replacement employee.

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


4.5. - BEREAVEMENT LEAVE

4.5.1 (1) An employee including a casual employee shall on the death of a member of the employee's family or household, be entitled on notice, of leave up to and including the day of the funeral of such relation and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in two ordinary rostered working days.

(2) The two days bereavement leave need not be consecutive.

(3) An employee who claims to be entitled to paid leave under 4.5.1(1) is to provide to the employer, upon request, evidence that would satisfy a reasonable person as to the death that is the subject of the leave sought and the relationship of the employee to the deceased person.

4.5.2 Provided that payment in respect of bereavement leave is to be made only where the employee otherwise would have been on duty and shall not be granted in any case where the employee concerned would have been off duty in accordance with the roster, or on long service leave, annual leave, sick leave, workers' compensation, leave without pay or on a public holiday.

4.5.3 An employee shall not be entitled to claim payment for bereavement leave on a day when that the employee is absent on an accrued day off in accordance with the provisions of 2.1  Hours and Weekend Work.

4.5.4 An employee, whilst on bereavement leave prescribed by this clause shall continue to accrue an entitlement to an accrued day off as prescribed in 2.1  Hours and Weekend Work.


4.6. - LONG SERVICE LEAVE

An employee covered by this award is entitled to long service leave in accordance with the Long Service Leave Act 1958.


4.7. - PUBLIC HOLIDAYS

4.7.1 The following days or the days, observed in lieu, shall subject to 4.7.3 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.

4.7.2 (1) When any of the days mentioned in 4.7.1 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.

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

4.7.3 An employee who, on a day observed as a holiday under this clause is required to work during his ordinary hours of work shall be paid for the time worked at the rate of double time and one half or, if they agree, 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.

4.7.4 Where 

(1) a day is proclaimed as a public holiday or as a public halfholiday under s 7 of the Public and Bank Holidays Act 1972, and,

(2) 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.

4.7.5 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.

4.7.6 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 2.1.1 and 2.1.2.

4.7.7 Where an employee has additional leave granted pursuant to 4.7.2, the employer may require such leave to be taken within 12 months of falling due.

4.7.8 The provisions of this clause shall not apply to casual employees.


5. - TERMINATION AND REDUNDANCY

5.1. - CONTRACT OF SERVICE AND TERMINATION

Contract of Service

5.1.1 Employees covered by this award shall be engaged as a:

(1) continuing employee (either full time or part time); or

(2) casual employee (to work 38 ordinary hours a week or for less than 38 ordinary hours a week).

5.1.2 Where an employee is engaged pursuant to 5.1.1(1), at the time of engagement the employer will inform the employee in writing of the terms of the engagement; their classification; whether they are full time or part time and, in the case of part time employees, the number of hours they will be regularly rostered to work.

5.1.3 Full Time Employees:

A "Full Time Employee" means an employee engaged to work an average of 38 ordinary hours per week in accordance with the provisions of 2.1 – Hours and Weekend Work.

5.1.4 Part Time Employees

(1) A "Part Time Employee" means an employee who:

(a) works less than 38 ordinary hours per week; and

(b) has reasonably predictable hours of work; and

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

(2) At the time of engagement the employer and employee will agree in writing on a regular pattern of work specifying at least:

(a) the hours worked each day;

(b) the days of the week to be worked; and

(c) the actual starting and finishing times each day.

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

(4) A part time employee shall be rostered for a minimum of three consecutive hours on any shift.

(5) Part time employees shall be paid for ordinary hours worked at the rate of 1/38 of the weekly rate prescribed for their classification.

5.1.5 Casual Employees

(1) A "Casual Employee" means an employee as defined in 1.5 – Definitions who is engaged and paid as such.

(2) At the time of engagement the employer will orally inform the employee of:

(a) the likely hours they will be required;

(b) the ordinary hourly rate for a casual employee in their classification;

(c) their lack of entitlement to paid annual, sick or carer's leave; and

(d) their entitlement to bereavement and unpaid leave.

(3) Where a Casual Employee is required to work for more than one week the employer will provide the information required pursuant to 5.1.5(2) above in writing to the employee.

(4) The ordinary hourly rate for a casual employee shall be calculated on the basis of one thirty eighth of the weekly rate prescribed for the class of work performed plus a casual loading of 20%.

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

Termination of Employment

5.1.6 Notice of Termination by Employer

(1) In order to terminate the employment of an employee the employer shall give the employee the following notice:

PERIOD OF CONTINUOUS SERVICE WITH THE EMPLOYER
PERIOD OF NOTICE


1 year or less
At least 1 week


More than 1 year up to and including 3 years
At least 2 weeks


More than 3 years up to and including 5 years
At least 3 weeks


More than 5 years
At least 4 weeks

(2) An employee who at the time of being given notice is over 45 years of age and who at the date of termination has completed two years' continuous service with the employer, shall be entitled to one week's notice in addition to the notice prescribed in 5.1.6(1)

(3) Payment in lieu of the notice prescribed in 5.1.6(1) and (2) 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.

(4) In calculating any payment in lieu of notice the employer shall pay the employee an amount that is equal to, or exceeds, the total of all amounts that, if the employee's employment had continued until the end of the required notice period, the employer would have become liable to pay to the employee because of the employment continuing during that period. That total must be worked out on the basis of:

(a) the employee's ordinary hours of work (even if they are not standard hours);

(b) the amounts ordinarily payable to the employee in respect of those hours, including for example, allowances, loadings and penalties; and

(c) any other amounts payable under the employee's contract of employment.

5.1.7 The employment of a casual employee may be terminated by one hour's notice on either side or the payment by the employer or forfeiture by the employee (as the case may be) of one hour's pay.

5.1.8 Nothing in this clause shall prevent an employer from dismissing an employee at any time for serious misconduct in which case wages shall be paid up to the time of dismissal only.

5.1.9 The employer may engage an employee on a probationary period for not longer than three months during which time it will be possible for either the employee or employer to end the contract with one day's notice.

5.1.10 An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training.

5.1.11 Upon request by an employee, the employer shall provide a written statement specifying the period of employment and the classification or type of work performed by the employee.


5.2. - NO REDUCTION

Nothing contained in this award shall entitle an employer to reduce the wage of any employee who at the date of this award is being paid a higher rate of wage than the minimum prescribed for their class of work.


5.3. - REDUNDANCY

5.3.1 Definitions

(1) "Business" includes trade, process, business or occupation and includes part of any such business.

(2) "Redundancy" occurs where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone.

(3) "Transmission" includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning.

(4) "Weeks' pay" means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude:

(a) overtime;

(b) penalty rates;

(c) disability allowances;

(d) shift allowances;

(e) special rates;

(f) fares and travelling time allowances;

(g) bonuses; and

(h) any other ancillary payments of a like nature.

5.3.2 Consultation Before Terminations

(1) Where an employer decides that the employer no longer wishes the job the employee has been doing to be done by anyone and that decision may lead to termination of employment, the employer shall consult the employee directly affected and if an employee nominates a union to represent them, the union nominated by the employee.

(2) The consultation shall take place as soon as is practicable after the employer has made a decision to which 4.2(a) applies and shall cover the reasons for the proposed terminations, measures to avoid or minimise the terminations and/or their adverse affects on the employees concerned.

(3) For the purpose of the consultation the employer shall, as soon as practicable, provide in writing to the employees concerned and if an employee nominates a union to represent them, the union nominated by the employee, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, the number of employees normally employed and the period over which the terminations are likely to be carried out. Provided that an employer shall not be required to disclose confidential information, the disclosure of which would be adverse to the employer's interests.

5.3.3 Transfer to Lower Paid Duties

(1) Where an employee is transferred to lower paid duties by reason of redundancy the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated.

(2) The employer may, at the employer's option, make payment in lieu thereof of an amount equal to the difference between the former amounts the employer would have been liable to pay and the new lower amount the employer is liable to pay the employee for the number of weeks of notice still owing.

(3) The amounts must be worked out on the basis of:

(a) the ordinary working hours to be worked by the employee;

(b) the amounts payable to the employee for the hours including for example, allowances, loading and penalties; and

(c) any other amounts payable under the employee's contract of employment.

5.3.4 Severance Pay

(1) In addition to the period of notice prescribed for ordinary termination, 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: Provided that the entitlement of any employee whose employment terminates on or before 1 February 2006 shall not exceed eight weeks' pay.


Period of continuous service
Severance pay


Less than 1 year
Nil
1 year and less than 2 years
4 weeks' pay
2 years and less than 3 years
6 weeks' pay
3 years and less than 4 years
7 weeks' pay
4 years and less than 5 years
8 weeks' pay
5 years and less than 6 years
10 weeks' pay
6 years and less than 7 years
11 weeks' pay
7 years and less than 8 years
13 weeks' pay
8 years and less than 9 years
14 weeks' pay
9 years and less than 10 years
16 weeks' pay
10 years and over
12 weeks' pay

(2) 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.

(3) For the purpose of this clause continuity of service shall not be broken on account of:

(a) any interruption or termination of the employment by the employer if such interruption or termination has been made merely with the intention of avoiding the obligations of this clause in respect of leave of absence;

(b) any absence from work on account of leave granted by the employer; or

(c) any absence with reasonable cause, proof whereof shall be upon the employee;

Provided that in the calculation of continuous service any time in respect of which any employee is absent from work except time for which an employee is entitled to claim paid leave shall not count as time worked.

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 with the definition of continuous service contained in the Long Service Leave Act 1958 (WA) shall also constitute continuous service for the purpose of this clause.

5.3.5 Employee Leaving During Notice Period

An employee whose employment is terminated by reason of redundancy may terminate their 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.

5.3.6 Alternative Employment

(1) An employer, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied if the employer obtains acceptable alternative employment for an employee.

(2) This subclause does not apply in circumstances involving transmission of business as set out in 4.7.

5.3.7 Transmission of Business

(1) The provisions of 4 are not applicable where a business is before or after the date of this order, transmitted from an employer (in this subclause called "the transmittor") to another employer (in this subclause called "the transmittee"), in any of the following circumstances:

(a) Where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee; or

(b) Where the employee rejects an offer of employment with the transmittee:

(i) in which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and

(ii) which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service with the transmittee.

(2) The Commission may vary 5.3.7(1)(b) if it is satisfied that this provision would operate unfairly in a particular case.

5.3.8 Entitlement to Paid Leave for Job Interviews

(1) An employee, other than a seasonal worker, who has been informed that he or she has been, or will be, made redundant is entitled to paid leave of up to eight hours for the purpose of being interviewed for further employment.

(2) The eight hours' paid leave referred to 5.3.8(1) need not be consecutive.

(3) An employee who claims to be entitled to paid leave under 5.3.8(1) is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.

5.3.9 Notice to Centrelink

Where a decision has been made to terminate employees in the circumstances outlined in 5.3.2 - Consultation Before Terminations, the employer shall notify Centrelink as soon as possible giving all relevant information about the proposed terminations, including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected, the number of employees normally employed and the period over which the terminations are intended to be carried out.

5.3.10 Employees Exempted

This clause does not apply:

(1) Where employment is terminated as a consequence of serious misconduct that justifies dismissal without notice.

(2) Except for 5.3.2 - Consultation Before Terminations, to employees with less than one year's service.

(3) Except for 5.3.2 - Consultation Before Terminations, to probationary employees.

(4) To apprentices.

(5) To trainees.

(6) Except 5.3.2 - Consultation Before Terminations, to employees engaged for a specific period of time or for a specified task or tasks; or

(7) To casual employees.

5.3.11 Employers Exempted

Subject to an order of the Commission, in a particular redundancy case, 5.3.4 - Severance Pay shall not apply to employers who employ less than 15 employees.

5.3.12 Incapacity to Pay

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


6. - OTHER

6.1. - INTRODUCTION OF CHANGE

6.1.1 Employer's Duty to Notify

(1) Where an employer decides to introduce 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.

(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 a job opportunity, a promotion opportunity 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.

6.1.2 Employer's Duty to Consult Over Change

(1) The employer shall consult with the employees affected and the union about the introduction of the changes, the effects the changes are likely to have on employees, (including the number and categories of employees likely to be dismissed, and the time when, or the period over which, the employer intends to carry out any dismissals), and the ways to avoid or minimise the effects of the changes (eg by finding alternate employment).

(2) The consultation shall commence as soon as is reasonably practicable after making the decision referred to in the "Employer's Duty to Notify" referred to in 6.1.1 and the employer shall give prompt consideration to matters raised by the employees and/or their union in relation to the changes..

(3) For the purpose of such discussion, the employer shall provide in writing to the employees concerned and their union or unions, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and other matters likely to affect employees provided that any employer shall not be required to disclose information the disclosure of which may seriously harm the employer's business undertaking or the employer's interest in the carrying on, or disposition, of the business undertaking.


6.2. - SAFETY PROVISIONS

6.2.1 A reasonable means of communication shall be available for a mobile security guard to communicate with the employer or the employer's nominated representative.

6.2.2 Any dispute as to whether a means of communication is reasonable for the purposes of this clause may be dealt with in accordance with 6.4 - Resolution of Disputes.


6.3. - AWARD MODERNISATION AND ENTERPRISE CONSULTATION

6.3.1 The parties to this award are committed to cooperating positively to increase the efficiency and productivity of the employer's business to enhance the career opportunities and job security of employees in the industry.

6.3.2 At each worksite a consultative mechanism may be established by the employer, or shall be established upon request by the employees or their union. The consultative mechanism and procedure shall be appropriate to the size, structure and needs of the employer's business.

6.3.3 Where a consultative committee is established, it will be free to address any matter which is consistent with the objectives of 6.3.1.

6.3.4 Discussions that take place will have regard to the following requirements:

(1) the changes sought shall not affect provisions reflecting State standards;

(2) the majority of employees affected by the change at the plant or worksite must genuinely agree to the change;

(3) any agreement shall not, in the context of a total package, provide for a set of conditions of a lesser standard than that provided by the award and no employee shall have a lesser income as a result of the conditions provided for in such agreement;

(4) the union must be a party to any agreement which affects the wages and/or conditions of employment of employees;

(5) the union shall not unreasonably oppose any agreement;

(6) any agreement relating to award matters shall be subject to approval by the Western Australian Industrial Relations Commission and, if approved, shall operate as a schedule to this award and take precedence over any provision of this award to the extent of any inconsistency; and

(7) if agreement cannot be reached on a particular issue, then the matter may be referred to the Western Australian Industrial Relations Commission for determination.


6.4. - RESOLUTION OF DISPUTES

6.4.1 Any dispute or matter raised by the employer or employee(s) shall be settled in accordance with the following procedure:

6.4.2 As soon as practicable after the dispute has arisen, the appropriate supervisor, the employee(s) concerned and where requested by an employee or employees the union workplace representative or other representative shall attempt to resolve the matter.

6.4.3 If the dispute is not resolved the appropriate senior representative of the employer, the employee(s) concerned, and where requested by an employee or employees, the union workplace representative or other representative shall attempt to resolve the matter.

6.4.4 If the dispute is not resolved the employer, employee, union or other employee representative may refer it for conciliation and/or arbitration by the Commission.

6.4.5 Unless otherwise agreed between the parties to the dispute, the status quo as existing before the dispute arose shall prevail until the dispute is resolved pursuant to this clause


6.5. - UNION RIGHT OF ENTRY

6.5.1 Discussions with Employees

An authorised representative of the anion, as defined by the Act, may enter, during working hours, the premises of the employer in accordance with the provisions of sections 49G and 49H of the Act.

6.5.2 Investigation of Breaches

An authorised representative may enter any premises during working hours where relevant employees work to investigate any suspected breach of the Act, the Minimum Conditions of Employment Act 1993 the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer-employee agreement that applies to any such employee in accordance with section 49I of the Act.


6.6. - POSTING OF AWARD AND UNION NOTICES

The employer shall keep a copy of this award in a convenient place in the workplace and the employer shall also provide a notice board for the posting of union notices.


7. - NAMED PARTIES TO THE AWARD

Liquor Hospitality and Miscellaneous Union, Western Australian Branch

The Anglican Church
Anzac Club
Cottesloe Town Council
Freemasons
Perth City Council
The Presbyterian Church
Roman Catholic Administration
The Trinity Congregational Church
The Uniting Church in Australia (formerly Presbyterian Church)
The Wesley Church


8. - LIBERTY TO APPLY

Liberty is given to each organisation named in clause 7 - Named Parties to the Award to apply to vary the award to remove their name as a party on the basis they are in fact and in law a constitutional corporation and that pursuant to 1.3 – Area and Scope they are not bound by the provisions of the award.