MISCELLANEOUS GOVERNMENT CONDITIONS AND ALLOWANCES AWARD NO A 4 OF 1992

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Commission's Own Motion

APPLICANT

-v-

(Not applicable)

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Acting Senior Commissioner P E Scott

DATE MONDAY, 24 JANUARY 2011

FILE NO/S APPL 81 OF 2007

CITATION NO. 2011 WAIRC 00047

Result Award varied

Order

HAVING heard Ms C Holmes on behalf of the respondents to the Award and Mr T Clark on behalf of the Liquor Hospitality and Miscellaneous Union, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979 and in particular s 40B, hereby orders:

THAT the Miscellaneous Government Conditions and Allowances Award No A 4 of 1992 be varied in accordance with the following Schedule and that such variation shall have effect on and from the 21st day of December 2010.

Acting Senior Commissioner P E Scott

PUBLIC SERVICE ARBITRATOR

SCHEDULE

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

3. – AREA AND SCOPE

This award shall apply throughout the State of Western Australia to all employees employed in all public authorities (as defined in the Industrial Relations Act 1979 as amended) or by the respondents as listed in Schedule B who are eligible to be members of the Liquor Hospitality and Miscellaneous Union, Western Australian Branch, but shall be limited by and shall be read in conjunction with the Area and Scope clauses of the awards listed in Schedule C of this award.

Provided that any businesses operating as contractors who are bound by any of the awards listed in Schedule C of this award, shall not be bound by Clause 7. – Leave Without Pay, Clause 9. – Study Leave, Clause 25. – Employees Living North of 26 degrees South latitude and Clause 31. – Witness and Jury Service of this award.

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

5. – DEFINITIONS

“Commission” and “WAIRC” means the Western Australian Industrial Relations Commission.

“De facto partner” means a relationship (other than a legal marriage) between two persons, of either different sexes or the same sex, who live together in a “marriage-like” relationship, as provided for by the Interpretation Act 1984 as amended from time to time.

“Employee” means a person employed by a respondent listed in Schedule B.

“Employer” means a respondent listed in Schedule B.

“Organisation” means a respondent listed in Schedule B.

“Partner” means either a spouse or a de facto partner.

“Spouse” means a person who is lawfully married to the person, as defined by the Interpretation Act 1984 as amended from time to time.

“Union” means the Liquor Hospitality Miscellaneous Union, Western Australian Branch.

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

6. – PARENTAL LEAVE

(1) Definitions

(a) “Employee” includes full time, part time, permanent, fixed term contract and “eligible” casual employees.

(b) A casual employee is “eligible” if the employee -

(i) has been engaged by the public sector on a regular and systematic basis for a sequence of periods of employment during a period of at least twelve (12) months; and

(ii) 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.

(c) Without limiting 6(1)(b), a casual employee is also “eligible” if the employee –

(i) was engaged by the public sector on a regular and systematic basis for a sequence of periods during a period (the first period of employment) of less than twelve (12) months; and

(ii) at the end of the first period of employment, the employee ceased, on the employer’s initiative, to be so engaged by the public sector employer; and

(iii) the public sector 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; and

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

(v) 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 adoption of the child by the employee, would have a reasonable expectation of continuing engagement in the public sector on a regular and systematic basis.

(d) “Primary Care Giver” is the employee who will assume the principal role for the care and attention of a child/children. The employer may require confirmation of primary care giver status.

(e) “Replacement Employee” is an employee specifically engaged to replace an employee proceeding on parental leave.

(f) “Public sector” means an employing authority as defined in Section 5 of the Public Sector Management Act 1994.

(2) Entitlement to parental and partner leave

(a) An employee is entitled to a period of up to 52 weeks unpaid parental leave in respect of the:

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

(ii) adoption of a child who is not the natural child or the stepchild of the employee or the employee’s partner; is under the age of five (5); and has not lived continuously with the employee for six (6) months or longer.

(b) An employee, other than an eligible casual employee, identified as the primary care giver of a child and who has completed twelve months continuous service in the Western Australian public sector shall be entitled to eight (8) weeks paid parental leave. Paid parental leave will form part of the 52-week entitlement provided in subclause (2)(a).

(c) A pregnant employee can commence the period of paid parental leave any time up to six (6) weeks before the expected date of birth and no later than four (4) weeks after the birth. Any other primary care giver can commence the period of paid parental leave from the birth date or, for the purposes of adoption, from the placement of the child but no later than four (4) weeks after the birth or placement of the child.

(d) Paid parental leave for primary care purposes for any one birth or adoption shall not exceed eight (8) weeks.

(e) The paid and unpaid parental leave entitlement up to a maximum of 52 weeks may be shared between partners assuming the role of primary care giver.

(f) Parental leave may not be taken concurrently by an employee and their partner except under special circumstances and with the approval of the employer.

(g) Where less than the standard parental leave is taken, the unused portion of the period of paid or unpaid leave cannot be preserved in any way.

(h) An employee may elect to receive pay in advance for the period of paid parental leave at the time the parental leave commences, or may elect to be paid the entitlement on a fortnightly basis over the period of the paid parental leave.

(i) An employee is eligible, without resuming duty, for subsequent periods of parental leave in accordance with the provisions of this clause.

(3) Birth of a child

(a) An employee shall provide the employer with a medical certificate from a registered medical practitioner naming the employee, or the employee’s partner, confirming the pregnancy and the estimated date of birth.

(b) If the pregnancy results in other than a live child or the child dies in the eight (8) weeks immediately after the birth, the entitlement to paid parental leave remains intact.

(4) Adoption of a child

(a) An employee seeking to adopt a child shall be entitled to two (2) days unpaid leave to attend interviews or examinations required for the adoption procedure.  Employees working or residing outside the Perth metropolitan area are entitled to an additional day’s unpaid leave. The employee may take any paid leave entitlement in lieu of this leave.

(b) If an application for parental leave has been granted for the adoption of a child, which does not eventuate, then the period of paid or unpaid parental leave is terminated. Employees may take any other paid leave entitlement in lieu of the terminated parental leave or return to work.

(5) Partner leave

(a) An employee is entitled to unpaid partner leave as prescribed by this subclause in respect of the:

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

(ii) adoption of a child who is not the natural child or the stepchild of the employee or the employee’s partner; is under the age of five (5); and has not lived continuously with the employee for six (6) months or longer.

(b) An employee who is not taking parental leave with respect to the birth of child to their partner shall be entitled to a period of unpaid partner leave of up to one (1) week at the time of the child’s birth. In the case of adoption of a child this period shall be increased to up to three weeks unpaid leave.

(c) The employee may request to extend the period of unpaid partner leave up to a maximum of eight (8) weeks. 

(d) The employer is to agree to an employee’s request to extend their partner leave under 6(5)(c) unless:

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

(ii) there are grounds to refuse the request relating to its adverse effect on the employer’s business and those grounds would satisfy a reasonable person. These grounds include, but are not limited to:

· cost;

· lack of adequate replacement staff;

· loss of efficiency; and

· impact on the production or delivery of products or services by the employer.

(e) The employer is to give the employee written notice of the employer’s decision on a request for extended partner leave. If the employee’s request is refused, the notice is to set out the reasons for the refusal.

(f) An employee who believes their request for extended partner leave under 6(5)(c) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances. 

(g) The taking of partner leave by an employee shall have no effect on their or their partner’s entitlement, where applicable, to paid parental leave under this clause.

(6) Other leave entitlements

(a) An employee proceeding on unpaid parental leave may elect to substitute any part of that leave with accrued annual leave or long service leave for the whole or part of the period of unpaid parental leave.

(b) Subject to all other leave entitlements being exhausted, an employee shall be entitled to apply for leave without pay following parental leave to extend their leave by up to two (2) years.  The employer is to agree to a request to extend their leave unless:

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

(ii) there are grounds to refuse the request relating to its adverse effect on the employer’s business and those grounds would satisfy a reasonable person. These grounds include, but are not limited to:

· cost;

· lack of adequate replacement staff;

· loss of efficiency;

· impact on the production or delivery of products or services by the employer.

(c) The employer is to give the employee written notice of the employer’s decision on a request for leave without pay under subclause (6)(b). If the request is refused, the notice is to set out the reasons for the refusal.

(d) An employee who believes their request for leave without pay under subclause (6)(b) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances. 

(e) Any period of leave without pay must be applied for and approved in advance and will be granted on a year-by-year basis.  Where both partners work for the employer the total combined period of leave without pay following parental leave shall not exceed two years.

(f) An employee on parental leave is not entitled to paid absences other than as specified in subclauses (6)(a) and (g) and (2)(i). 

(g) Should the birth or adoption result in other than the arrival of a living child, the employee shall be entitled to such period of paid personal leave or unpaid leave for a period certified as necessary by a registered medical practitioner. Such paid personal leave cannot be taken concurrently with paid parental leave.

(h) Where a pregnant employee not on parental leave suffers illness related to the pregnancy or is required to undergo a pregnancy related medical procedure the employee may take any paid personal leave to which the employee is entitled or unpaid leave for a period as certified necessary by a registered medical practitioner.

(7) Notice and variation

(a) The employee shall give not less than four (4) weeks notice in writing to the employer of the date the employee proposes to commence paid or unpaid parental leave stating the period of leave to be taken.

(b) An employee seeking to adopt a child shall not be in breach of subclause (7)(a) by failing to give the required period of notice if such failure is due to the requirement of the adoption agency to accept earlier or later placement of a child, or other compelling circumstances.

(c) An employee proceeding on parental leave may elect to take a shorter period of parental leave and may, at any time during that period, elect to reduce or extend the period stated in the original application, provided four (4) weeks written notice is provided.

(8) Transfer to a safe job

(a) If the 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:

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

(ii) hazards connected with that position; then

the employer must modify the duties of the position or alternatively transfer the employee to a safe job at the same classification level for the period during which she is unable to continue in her present position.

(b) If the employee’s employer does not think it to be reasonably practicable to modify the duties of the position or transfer the employee to a safe job the employee is entitled to paid leave for the period during which she is unable to continue in her present position.

(c) An entitlement to paid leave provided in clause 6(8)(b) is in addition to any other leave entitlement the employee has and is to be paid the amount the employee would reasonably have expected to be paid if the employee had worked during that period.

(d) An entitlement to paid leave provided in clause 6(8)(b) 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.

(9) Communication during parental leave

(a) Where an employee is on parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:

(i) make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and

(ii) provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.

(b) The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee’s decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to return to work on a part-time or modified basis.

(c) The employee shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with subclause (9)(a).

(10) Replacement employee

(a) Prior to engaging a replacement employee, the employer shall inform the person of the temporary nature of the employment and the entitlements relating to the return to work of the employee on parental leave.

(b) A replacement employee may be employed part time. Subject to this subclause, paragraphs (e), (f), (g), (h), (i) and (m) of subclause (14) and paragraphs (d) and (e) of subclause (15) of this clause apply to the part time employment of a replacement employee.

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

(11) Return to work

(a) An employee shall confirm the intention to return to work by notice in writing to the employer not less than four (4) weeks prior to the expiration of parental leave.

(b) An employee on return to work from parental leave will be entitled to the same position or a position equivalent in pay, conditions and status and commensurate with the employee’s skill and abilities as the substantive position held immediately prior to proceeding on parental leave.

(c) Where an employee was transferred to a safe job or proceeded on leave as provided for in 6(8)(b) of this clause, the employee is entitled to return to the position occupied immediately prior to the transfer or the taking of the leave.

(12) Right to return to work on a modified basis

(a) An employee may return on a part time or job-share basis to the substantive position occupied prior to the commencement of leave or to a different position at the same classification level in accordance with the part time employment provisions of the relevant award and agreement.

(b) An employee may return on a modified basis that involves the employee working on different days or at different times, or both; or on fewer days or for fewer hours or both, than the employee worked immediately before starting parental leave.

(13) Right to revert

(a) An employee who has returned on a part time or modified basis in accordance with subclause (12) may subsequently request the employer to permit the employee to resume working on the same basis as the employee worked immediately before starting parental leave or full time work at the same classification level.

(b) An employer is to agree to a request to revert made under subclause (13)(a) unless 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.

(c) An employer is to give the employee written notice of the employer’s decision on a request to revert under subclause (13)(a). If the request is refused, the notice is to set out the reasons for the refusal.

(d) An employee who believes their request to revert under subclause (13)(a) has been unreasonably refused may seek to enforce it as a minimum condition of employment and the onus will be on the employer to demonstrate that the refusal was justified in the circumstances. 

(14)  Part time work

(a) A pregnant employee may work part time in one or more periods while she is pregnant where part time employment is, because of the pregnancy, necessary or desirable.

(b) Commencement on part time work under this subclause, and return from part time to full time work under this subclause, shall not break the continuity of service or employment.

(c) Subject to the provisions of this subclause and to the matters agreed in accordance with 6(14)(h), part time employment shall be accordance with the provisions of this award, which shall apply on a pro rata basis.

(d) An employee working part time under this subclause shall be entitled to leave accrued in respect of a period of full time employment, in such periods and manner as specified in the annual leave provisions of the relevant award.

(e) A full time employee shall be paid for and take any annual leave accrued in respect of a period of part time employment under this subclause, in such periods and manner as specified in the relevant award, as if the employee were working part time in the class of work the employee was performing as a part time employee immediately before resuming full time work.

(f) Provided that, by agreement between the employer and employee, the period over which the leave is taken may be shortened to the extent necessary for the employee to receive pay at the employee’s current full time rate.

(g) An employee working part time under this subclause shall have sick leave entitlements which have accrued under the relevant award (including any entitlement accrued in respect of previous full time employment) converted into hours. When this entitlement is used, whether as a part time employee or as a fulltime employee, it shall be debited for the ordinary hours that the employee would have worked during the period of the absence.

(h) Before commencing a period of part time employment under this subclause, the employee and the employer shall agree upon:

(i) the hours to be worked; the days upon which they will be worked and commencing times for the work;

(ii) the classification applying to the work to be performed; and

(iii) the period of part time employment.

(i) The terms of the agreement made under subclause (14)(h) may be varied by consent.

(j) The terms of the agreement made under subclause (14)(h) shall be reduced to writing and retained by the employer. A copy of the agreement and any variation to it shall be provided to the employee by the employer. The terms of this agreement shall apply to the part time employment.

(k) An employer may request, but not require, an employee working part time under this subclause to work outside of or in excess of the employee’s ordinary hours of duty provided for in the relevant award.

(l) The work to be performed part time need not be the work performed by the employee in their former position but shall be work performed under this award.

(m) An employee may work part time under this subclause notwithstanding any other provision of any relevant award or agreement which limits or restricts the circumstances in which part time employment may be worked or the terms upon which it may be worked, including provisions:

(i) limiting the number of employees who may work part time;

(ii) establishing quotas as to the ratio of part time to full time employees;

(iii) prescribing to a minimum or maximum number of hours a part time employee may work; or

(iv) requiring consultation with, consent of, or monitoring by a union;

and such provisions do not apply to part time work under this subclause.

(15) Effect of parental leave and part time employment on the contract of employment

(a) An employee employed for a fixed term contract shall have the same entitlement to parental leave, however, the period of leave granted shall not extend beyond the term of that contract.

(b) Paid parental leave will count as qualifying service for all purposes under the relevant award. Absence on unpaid parental leave shall not break the continuity of service of employees but shall not be taken into account in calculating the period of service for any purpose under the relevant award.

(c) An employee on parental leave may terminate employment at any time during the period of leave by written notice in accordance with the relevant award.

(d) An employer shall not terminate the employment of an employee on the grounds of the employee’s application for parental leave, absence on parental leave, or because the employee has exercised or proposes to exercise any part time employment rights and/or benefits as provided for in subclause (14) but otherwise the rights of the employer in respect of termination of employment are not affected.

(e) Any termination entitlements payable to an employee whose employment is terminated while working part time under subclause (14), or while working full time after transferring from part time work under subclause (14), shall be calculated by reference to the full time rate of pay at the time of termination and by regarding all service as a full time employee as qualifying for a termination entitlement based on the period of full time employment and all service as a part time employee on a pro rata basis.

(16) Casual employees

(a) To avoid doubt, an eligible casual employee has no entitlement to paid leave under this clause with the exception of the entitlement to paid leave as provided under subclause (8)(b). 

(b) Nothing in this clause confers a change in the employment status of a casual employee.

4. Clause 8. – Bereavement Leave:  Delete this clause and insert the following in lieu thereof:

8. – BEREAVEMENT LEAVE

(1) Employees, including casuals, shall on the death of:

(a) a partner of an employee;

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

(c) a parent, step-parent or grandparent of an employee;

(d) a brother, sister, step-brother or step-sister; or

(e) any other person who, immediately before that person’s death, lived with an employee as a member of an employee’s family;

be eligible for up to two (2) days paid bereavement leave, provided that at the request of an employee the employer may exercise discretion to grant bereavement leave to an employee in respect of some other person with whom the employee has a special relationship.

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

(3) Bereavement leave is not to be taken during any other period of leave.

(4) An employee shall not be entitled to claim payment for bereavement leave on a day when that employee is not ordinarily rostered to work.

(5) Payment of such leave may be subject to an employee providing evidence, if so requested by the employer, of the death or relationship to the deceased that would satisfy a reasonable person.

(6) Employees requiring more than two (2) days bereavement leave in order to travel overseas or interstate in the event of the death overseas or interstate of a member of an employee’s immediate family may, upon providing adequate proof, in addition to any bereavement leave to which the employee is eligible, have immediate access to annual leave and/or accrued long service leave and/or leave without pay, provided all accrued leave is exhausted.

5. Clause 16. – Payment of Wages:  Delete this clause and insert the following in lieu thereof:

16. – PAYMENT OF WAGES

(1)  Wages shall be paid fortnightly. Overtime and penalty rates, where applicable, shall be paid at least monthly.

(2)  Accompanying each payment of wages there shall be a pay advice slip to be retained by the employee. On this slip the employer shall clearly detail the gross wages, where practical its composition, the net wages payable and show details of each deduction.

(3)  Overtime shall be calculated and based on the aggregate wage as provided in the wages clause of the relevant award before any deduction is made for board and/or lodging.

(4) On termination of employment the employer shall pay to the employee all monies payable to that employee before the employee leaves the place of employment or the same shall be forwarded to the employee by post in the following week.

(5)  Wages shall be paid by direct funds transfer to the credit of an account nominated by the employee at such bank, building society or credit union approved by the employer.

Provided that where such form of payment is impractical or where some exceptional circumstances exist and by agreement between the employer and the union, payment by cheque may be made.

(6)  An employee who performs shift or weekend work irregularly may be paid shift or weekend penalties during the pay period in which the work is performed.

(7)  Subject to the provisions of this clause, no deduction shall be made from an employee's wages unless the employee has authorised such deduction in writing.

(8) In the case of employees of the Minister for Education, where an employee works additional hours and/or duties, the additional payment due shall be made within one month of those additional hours and/or duties being worked.

6. Clause 17. – Salary Packaging:  Delete this clause and insert the following in lieu thereof:

17. – SALARY PACKAGING

(1) An employee may, by agreement with the employer, enter into a salary packaging arrangement in accordance with this clause and Australian Taxation Office requirements.

(2) Salary packaging is an arrangement whereby the entitlements and benefits under the relevant award/s contributing toward the Total Employment Cost (TEC) – as defined in subclause (3) – of an employee, can be reduced by and substituted with another or other benefits.

(3)  The TEC for salary packaging purposes is calculated by adding the following entitlements and benefits:

(a) the base wage;

(b)  other cash allowances;

(c)  non-cash benefits;

(d)  any Fringe Benefit Tax liabilities currently paid; and

(e)  any variable components.

(4) Where an employee enters into a salary packaging arrangement the employee will be required to enter into a separate written agreement with the employer setting out the terms and conditions of the salary packaging arrangement.

(5) Notwithstanding any salary packaging arrangement, the wage rate as specified in the relevant award is the basis for calculating wage related entitlements specified in the relevant award/s.

(6) Compulsory Employer Superannuation Guarantee contributions are to be calculated in accordance with applicable federal and state legislation.  Compulsory employer contributions made to superannuation schemes established under the State Superannuation Act 2000 and the Parliamentary Superannuation Act 1970 are calculated on the gross (pre-packaged) wage amount regardless of whether an employee participates in a salary packaging arrangement with their employer.

(7) A salary packaging arrangement cannot increase the costs to the employer of employing an individual.

(8) A salary packaging arrangement is to provide that the amount of any taxes, penalties or other costs for which the employer or employee is or may become liable for and are related to the salary packaging arrangement, shall be borne in full by the employee.

(9) In the event of any increase in taxes, penalties or costs relating to a salary packaging arrangement, the employee may vary or cancel that salary packaging arrangement.

7. Clause 18. – Employment Records:  Delete this clause and insert the following in lieu thereof:

18. – EMPLOYMENT RECORDS

(1)  Definitions

In this clause:

“industrial instrument” means:

(a) an award;

(b) an industrial agreement;

(c) an order of the Commission under the Industrial Relations Act 1979; or

(d) an employer-employee agreement.

“relevant person” means:

(e) the employee concerned;

(f) if the employee is a represented person, their representative. The term representative includes the Secretary and duly accredited officials of the union;

(g) a person authorised in writing by the employee;

(h) the Secretary or duly accredited official of the union; and

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

(2)               Keeping of employment records

The employer shall keep, or cause to be kept, employment records showing:

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

(b) any industrial instrument that applies;

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

(d) for each day:

(i) the time at which the employee started and finished work, including roster details if applicable;

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

(iii) details of work breaks including meal breaks;

(e) for each pay period:

(i)  the employee’s designation;

(ii) the gross and net amounts paid to the employee under the industrial instrument; and

(iii) all deductions and the reasons for them;

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

(g) the information necessary for the calculation of the entitlement to, and payment for long service leave under the industrial instrument;

(h) any other information in respect of the employee required under the industrial instrument to be recorded; and

(i) any information, not otherwise covered by this clause, that is necessary to show that the  benefits received by the employee comply with the industrial instrument.

(3)  The employer must ensure that:

(a) the employment records are kept in accordance with the Industrial Relations (General) Regulations 1997 as amended or superseded from time to time;

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

(i) during the employment of the employee; and

(ii) for not less than 7 years after the employment terminates; and

(c)  each other entry is retained for not less than 7 years after it is made.

(4)  Form of records

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

(a)  by: 

(i)  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

(ii)  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;

(b)  with only one employee’s records appearing on any one page;

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

(d) in a manner that enables compliance with subclauses (2) and (3) of this clause to be readily ascertained.

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

(a)  the nature of the alteration;

(b) the person making the alteration; and

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

 (6)  Access to employment records

An employer, on written request 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.

(7)  The duty placed on an employer by subclause (6):

(a)  continues so long as the records are required to be kept under subclause (3);

(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 them;

(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:

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

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

(8) If the employer maintains a personal or other file on an employee, the employee shall be entitled to examine all material contained on that file and take copies at a time that does not result in the employer’s business being unduly interrupted or otherwise hampered.

8. Clause 19. – Right of Entry:  Delete this clause and insert the following in lieu thereof:

19. – RIGHT OF ENTRY

(1) Right of entry for discussions with employees

(a) Definitions

In this clause:

“authorised representative” means a person who holds an authority in force under the Industrial Relations Act 1979;

“relevant employee”, when used in connection with the exercise of a power by an authorised representative of the union, means an employee who is a member of the union or who is eligible to become a member of the union.

(b) An authorised representative of the union may, on notification to the employer, enter during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.

(2) Right of entry to investigate breaches

(a) An authorised representative of the union may, on notification to the employer, enter during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of an award, industrial agreement or order that applies to any such employee, or the Industrial Relations Act 1979, the Minimum Conditions of Employment Act 1993, or the Occupational Safety and Health Act 1984.

(b) An “authorised representative” and “relevant employees” have the same meaning as in subclause (1)(a).

(c) For the purpose of investigating a suspected breach in accordance with this clause, the authorised representative:

(i) subject to subclause (2)(d), may require the employer to produce for the representative’s inspection, during working hours at the employer’s premises or at any mutually convenient time and place, any employment records of employees or other documents kept by the employer that are related to the suspected breach;

(ii) shall not conduct interviews during normal working hours in the circumstances that will result in the employer’s business being unduly interrupted or otherwise hampered;

(iii) may make copies of the entries in the employment records or documents related to the suspected breach;

(iv) shall treat with confidentiality any information obtained from employment records; and

(v) may, during working hours, inspect or view any work, material, machinery, or appliance that is relevant to the suspected breach.

(d) In exercising a power under subclause (2)(a), an authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned:

(i) at least 24 hours’ written notice, if the records or other documents are kept on the employer’s premises; or

(ii) at least 48 hours’ written notice, if the records or other documents are kept elsewhere.

(e) The provisions of subclause (2)(d) apply except where, in accordance with section 49I (7) of the Industrial Relations Act 1979, the Commission has waived the requirement for the authorised representative to give the employer concerned notice.

(f) Where the Commission has waived the requirement to give the employer concerned notice of an intended exercise of a power, the authorised representative must, after entering the premises and before requiring the production of the records or documents, give the person who is apparently in charge of the premises the certificate or a copy of the certificate provided by the Commission under section 49I (8) of the Industrial Relations Act 1979 authorising the authorised representative’s exercise of a power without notice.

(3) In respect of non-public access areas at the Art Gallery of Western Australia, the authorised representative will give the employer at least 24 hours’ notice of an intention to enter these areas in accordance with subclauses (1) and (2).

(4) If:

(a) a person proposes to enter, or is on, premises in accordance with subclauses (1) or (2); and

(b) the occupier, including a person in charge of the premises, requests the person to show their authority;

the person is not entitled to enter or remain on the premises unless they show the occupier the authority in force under the Industrial Relations Act 1979.

(5) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under subclauses (1) or (2).

(6) A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this clause.

(7) A person must not purport to exercise the powers of an authorised representative under this clause if the person is not the holder of a current authority issued by the Registrar under Division 2G of Part II of the Industrial Relations Act 1979.

(8) The parties shall comply with the terms of Division 2G of Part II of the Industrial Relations Act 1979.

9. Clause 20. – Trade Union Training Leave:  Delete this clause and insert the following in lieu thereof:

20. – TRADE UNION TRAINING LEAVE

(1)  Subject to the provisions of this clause:

(a)  The employer shall grant paid leave of absence to employees who are nominated by their union to attend short courses relevant to the public sector or the role of union workplace representatives conducted by the Union Training Project, the Trade Union Education Foundation, UnionsWA or the Liquor, Hospitality and Miscellaneous Union.

(b)  Paid leave of absence shall also be granted for employees to attend similar courses or seminars as from time to time approved by agreement between the employer and the union.

(2)  An employee shall be granted up to a maximum of five days' paid leave per calendar year for trade union training or similar courses or seminars as approved. However, leave of absence in excess of five days and up to 10 days may be granted in any one calendar year provided that the total leave being granted in that year and in the subsequent year does not exceed 10 days.

(3)  (a)  Leave of absence will be granted at the ordinary rate of pay and shall not include shift allowances, penalty rates or overtime.

(b)  Where a public holiday or rostered day off (including a rostered day off as a result of working a 38-hour week) falls during the duration of a course, a day off in lieu of that day will not be granted.

(4)  Subject to subclause (3) of this clause, shift employees attending a course shall be deemed to have worked the shifts they would have worked had leave not been taken to attend the course.

(5) Part time employees shall receive the same entitlement as full time employees, but payment shall only be made for those hours that would normally have been worked but for the leave.

(6) The granting of leave pursuant to the provisions of subclause (1) of this clause is subject to the operation of the organisation not being unduly affected and to the convenience of the employer.

(7) (a)  Any application by an employee shall be submitted to the employer for approval at least four weeks before the commencement of the course, provided that the employer may agree to a lesser period of notice.

(b)  All applications for leave shall be accompanied by a statement from the union indicating that the employee has been nominated for the course. The application shall provide details as to the subject, commencement date, length of course, venue and the organisation that is conducting the course.

(8)  A qualifying period of 12 months service shall be served before an employee is eligible to attend courses or seminars of more than one half-day duration. An employer may, where special circumstances exist, approve an application to attend a course or seminar where an employee has less than 12 months service.

(9)  (a)  The employer shall not be liable for any expenses associated with an employee's attendance at trade union training courses.

(b)  Leave of absence granted under this clause shall include any necessary travelling time in normal working hours immediately before or after the course.

10. Clause 22. – District Allowance:  Delete this clause and insert the following in lieu thereof:

22. – DISTRICT ALLOWANCE

(1)  For the purposes of this clause the following terms shall have the following meaning:

(a) “Dependant” in relation to an employee means:

(i)  a partner; or

(ii) where there is no partner, a child or any other relative resident within the State who relies on the employee for their main support;

who does not receive a district or location allowance of any kind.

(b) “Partial Dependant” in relation to an employee means:

(i)  a partner; or

(ii)  where there is no partner, a child or any other relative resident within the State who relies on the employee for their main support;

who receives a district or location allowance of any kind less than that applicable to an employee without dependants under any award, agreement or other provision regulating the employment of the partial dependant.

(2)  For the purposes of this clause, the boundaries of the various districts shall be as described below and as delineated in subclause (6) of this clause.

District:

1.  The area within a line commencing on coast; thence east along latitude 28 to a point north of Tallering Peak; thence due south to Tallering Peak; thence southeast to Mt Gibson and Burracoppin; thence to a point southeast at the junction of latitude 32 and longitude 119; thence south along longitude 119 to coast.

2.  That area within a line commencing on the south coast at longitude 119; thence east along the coast to longitude 123; thence north along longitude 123 to a point on latitude 30; thence west along latitude 30 to the boundary of No. 1 District.

3.  The area within a line commencing on coast at latitude 26; thence along latitude 26 to longitude 123; thence south along longitude 123 to the boundary of No. 2 District.

4.  The area within a line commencing on the coast at latitude 24; thence east to the South Australian border; thence south to the coast; thence along the coast to longitude 123; thence north to the intersection of latitude 26; thence west along latitude 26 to the coast.

5.  That area of the State situated between the latitude 24 and a line running east from Carnot Bay to the Northern Territory border.

6.  That area of the State north of a line running east from Carnot Bay to the Northern Territory border.

(3)  An employee shall be paid a district allowance at the standard rate prescribed in Column II of subclause (6) of this clause for the district in which the employee's headquarters is located. Provided that where the employee's headquarters is situated in a town or place specified in Column III of subclause (6) of this clause, the employee shall be paid a district allowance at the rate appropriate to that town or place as prescribed in Column IV of subclause (6) of this clause.

(4)  An employee who has a dependant shall be paid double the district allowance prescribed by subclause (3) of this clause for the district, town or place in which the employee's headquarters is located.

(5)  Where an employee has a partial dependant the total district allowance payable to the employee shall be the district allowance prescribed by subclause (3) of this clause, plus an allowance equivalent to the difference between the rate of district or location allowance the partial dependant receives and the rate of district or location allowance the partial dependant would receive if they were employed in a full time capacity under the award, agreement or other provision regulating the employment of the partial dependant.

(6)  The weekly rate of district allowance payable to employees pursuant to subclause (3) of this clause shall be as follows:

(Note: In accordance with subclause (4) of this clause, employees with dependants shall be entitled to double the rate of district allowance shown.)

The allowances prescribed in this subclause shall operate from the beginning of the first pay period commencing on or after January 1 2010.

(7)  When an employee is on approved annual recreation leave, the employee shall, for the period of such leave, be paid the district allowance to which the employee would ordinarily be entitled.

(8)  When an employee is on long service leave or other approved leave with pay (other than annual recreation leave), the employee shall only be paid district allowance for the period of such leave if the employee, dependants or partial dependants remain in the district in which the employee's headquarters is situated.

(9)  When an employee leaves their district on duty, payment of any district allowance to which the employee would ordinarily be entitled shall cease after the expiration of two weeks unless the employee's dependant/s or partial dependant/s remain in the district or as otherwise approved by the employer.

(10)  Except as provided in subclause (9) of this clause, a district allowance shall be paid to any employee ordinarily entitled thereto in addition to reimbursement of any travelling transfer or relieving expenses or camping allowance.

(11)  Where an employee, whose headquarters is located in a district in respect of which no allowance is prescribed in subclause (6) of this clause, is required to travel or temporarily reside for any period in excess of one month in any district or districts in respect of which such allowance is so payable, the employee shall be paid for the whole of such period a district allowance at the appropriate rate pursuant to subclauses (3), (4) or (5) of this clause, for the district in which the employee spends the greater period of time.

(12)  When an employee is provided with free board and lodging by the employer or a public authority the allowance shall be reduced to two-thirds of the allowance the employee would ordinarily be entitled to under this clause.

(13)  An employee who is employed on a part-time basis shall be entitled to district allowance on a pro-rata basis. The allowance shall be determined by calculating the hours worked by the employee as a proportion of the full-time hours prescribed by the award under which the employee is employed. That proportion of the appropriate district allowance shall be payable to the employee.

(14)  The rates expressed in subclause (6) of this clause shall be adjusted every twelve (12) months ending on December 31 in accordance with the official "Consumer Price Index" for Perth as published by the Australian Bureau of Statistics (Cat. No. 6401.0).

The adjustment of rates shall be effective from the beginning of the first pay period to commence on or after the first day of January each year.

11. Clause 23. – Fares and Travelling Allowance:  Delete this clause and insert the following in lieu thereof:

23. – FARES AND TRAVELLING ALLOWANCES

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

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

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

(c)  A year for the purpose of this clause shall commence on the first day of July and end on the thirtieth day of June the following year.

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

Schedule 1 – Motor Vehicle Allowance

Schedule 2 – Motor Cycle Allowances

Motor vehicles with rotary engines are to be included in the 1600 – 2600cc category.

(3)  The allowance prescribed in this clause shall be varied by the parties in accordance with any movement in the allowances in the Public Service Award 1992.

12. Clause 25. – Employees Living North of the 26 degrees South Latitude:  Delete this clause and insert the following in lieu thereof:

25. - EMPLOYEES LIVING NORTH OF THE 26 DEGREES SOUTH LATITUDE

(1)  The conditions and allowances specified in this clause shall apply to all employees whose headquarters are located north of the 26 degrees south latitude.

(2)  (a)  An employee shall receive an additional five working days' annual leave on the completion of each 12 months' continuous service in the region.

(b)  An employee who proceeds on annual leave before having completed the necessary year of continuous service may be given approval for the additional five working days' leave provided the leave is taken at the employer's convenience and provided the employee returns to that region to complete the necessary service.

(c) Where an employee has served continuously for at least a year north of the 26 degrees south latitude, and leaves the region because of promotion or transfer, a pro rata annual leave credit to be cleared at the employer's convenience shall be approved on the following basis:

(d)  Where payment in lieu of pro rata annual leave is made on the death, resignation or retirement of an employee in the region, in addition to the payment calculated on a four week basis, payment may be made for the pro rata entitlement contained in paragraph (c) of this subclause.

(3)  Employees who are tenants occupying Government Employees Housing Authority (GEHA) houses equipped with gas hot water systems are eligible for a reimbursement up to a maximum of $29.00 per month.

(4)  Employees who have dependant school age children resident with them shall receive an allowance of $100 per annum per child to a maximum of $400 per annum per family.

(5) (a)  Employees who work north of the 26th parallel shall be entitled to an annual leave travel concession, on an annual basis, for recreation leave.

(b)  Provided that the entitlement referred to in paragraph (a) of this subclause shall only be available to employees who have worked continuously in the area for 12 months.

(c)  An employee may elect to proceed direct to any point south of the 26th parallel in Western Australia, provided that travel will only be approved to a point not further south than Perth; provided further that where special circumstances exist, approval may be given for the concession to apply to other destinations.

(d)  The concession shall be available in the following manner:

(i)  a return air fare for the employee and their dependants to Perth; or

(ii)  full motor vehicle allowance for the car trip at the rates prescribed in Clause 23. - Fares and Travelling Allowances of this award, provided that reimbursement shall not exceed the cost of a return airfare to Perth for the employee and dependants.

(e)  An employee who has less than 12 months of service in the abovementioned area and who is required to proceed on annual leave to suit the convenience of the employer, shall be entitled to the provisions of paragraph (d) of this subclause.

(f)  Paid travelling time

(i) In the case of travel as described in paragraph (d)(i) of this subclause, one day, each way, travelling time shall be paid for as though worked;

(ii)  In the case of travel as described in paragraph (d)(ii) of this subclause, employees shall be entitled to the following travelling time, paid for as though worked -

(aa) employees stationed north of the 20th degree parallel – 2.5 days each way; or

(bb) for the remainder – 2 days each way.

(g)  The mode of travel shall be at the discretion of the employer.

(h)  A travel concession not utilised within 12 months of becoming due will lapse.

(i)  Part-time employees are entitled to travel concessions pursuant to this clause on a pro-rata basis according to the number of hours normally worked.

13. Clause 29. – Training and Skills Acquisition:  Delete this clause and insert the following in lieu thereof:

29. – TRAINING AND SKILLS ACQUISITION

(1)  Establishment of skill level

(a)  The parties to this award shall determine the appropriate range of skills applicable to each classification level contained in the relevant wages clause of their award.

(b)  Each employee shall be paid the wage rate specified for a classification level defined in accordance with paragraph (a) of this subclause.

(c)  Where the employee is required to apply skills which in total or in part correspond to the skills required of a higher classification than that to which they are appointed, the employee shall receive the rate of pay corresponding to that higher classification, in accordance with the higher duties/mixed functions clauses of the relevant award in Schedule C of this award.

Such higher rate of pay shall be payable for the duration of the application of the higher level of skills, in accordance with the higher duties/mixed functions clauses of the relevant award in Schedule C of this award.

(d)  The level of skills possessed by each employee shall be determined by training standards, certification and experience in accordance with subclauses (2) and (3) of this clause.

(e)  "Experience", for the purposes of this clause, means skills gained in an industry or occupation or away from work and which are recognised within the classification structure.

(2)  Training standards

(a)  Where relevant training standards have been developed by the relevant statutory state training authority, however constituted, those standards shall be adopted in respect of matters relating to training in the industries and callings covered by this award.

(b)  Where relevant national training standards have been registered by the relevant national training board, however constituted, those standards shall be adopted in respect of matters relating to training in the industries and callings covered by this award.

(c)  Where relevant training standards have not been developed by the statutory state training authority or registered by the national training board, the parties to this award shall establish the standards to be adopted with respect of matters relating to training in the industries and callings covered by this award.

(d) "Training standards" for the purposes of this clause shall include, but not be limited to, the following:

(i) the standards and competencies of skills required for each calling;

(ii)  curricula development;

(iii)  training courses;

(iv)  articulation and accreditation requirements for both on and off the job training;

(v)  on the job training guidelines.

(3) Training standards, vocational education and accreditation

All training and vocational education for the purpose of imparting skill corresponding to the classification structure of the relevant award in Schedule C shall be:

(a)  consistent with the training standards established in accordance with subclause (2):

(b)  of a form which is recognised for the purpose of attainment or contributory towards the attainment of an accredited vocational educational qualification; and

(c)  accredited by the statutory state training authority; or

(d) in the absence of the statutory state training authority, agreed by the parties to this award as adequate in meeting the requirements of this subclause (3).

14. Clause 33. – Traineeships:  Delete this clause and insert the following in lieu thereof:

33. – TRAINEESHIPS

(1) Definitions

“Part time trainee” means a trainee who is employed for a minimum of 20 hours per week (except in the case of school based traineeships), and has regular and stable hours of work each week, to allow training to occur. Wages and entitlements accrue on a pro-rata basis.

“Traineeship” means a full time or part time structured employment based training arrangement approved by the Western Australian Department of Training and Workforce Development where the trainee gains work experience and has the opportunity to learn new skills in a work environment. On successful completion of the traineeship the trainee obtains a nationally recognised qualification.

“Traineeship Training Contract” means the agreement between the employer and the trainee that provides details of the traineeship and obligations of the employer and trainee and is registered with the Western Australian Department of Training and Workforce Development.

“Training Plan” means the plan that outlines what training and assessment will be conducted off-the-job and what will be conducted on-the-job and how the Registered Training Organisation will assist in ensuring the integrity of both aspects of the training and assessment process.

(2) Traineeships

(a) Trainees are to be additional to the normal workforce of the employer so that trainees shall not replace paid workers or volunteers or reduce the hours worked by existing employees.

(b) Training conditions

The arrangements between the employer and the trainee in relation to training are as specified in the Traineeship Training Agreement, as administered by the Western Australian Department of Training and Workforce Development.

(c) Employment conditions

(i) the initial period of employment for trainees is the nominal training period endorsed at the time the particular traineeship is established;

(ii) completion of the traineeship scheme will not guarantee the trainee future employment in the public sector, but the employer will cooperate to assist the trainee to be placed in suitable employment, should a position arise;

(iii) trainees are permitted to be absent from work without loss of continuity of employment to attend off the job training in accordance with the training plan.  However, except for absences provided for under the relevant award/s, failure to attend for work or training without an acceptable cause will result in loss of pay for the period of the absence; and

(iv) trainees will receive a mix of supervised work experience, structured training on the job and off the job, and the opportunity to practice new skills in a work environment; and

(v) overtime and shift work shall not be worked by trainees except to enable the requirements of the training to be effected.  When overtime and shift work are worked the relevant allowances and penalties of the relevant award, based on the training wage stated in paragraph (d) will apply.  No trainee shall work overtime or shift work on their own.

(d) Wages

The wages applicable to trainees shall be as prescribed in the National Training Wage Award 2000 for employees up to and including 20 years of age.  Adult trainees will be paid the rate prescribed under the Minimum Conditions of Employment Act 1993 for the minimum weekly rate of pay for employees 21 or more years of age.

15. Clause 34. – Commitment to Bargaining:  Delete this clause and insert the following in lieu thereof:

34. – COMMITMENT TO BARGAINING

Employees covered by this award and employed from 2 March 2005 will not be employed under any form of individual agreement made pursuant to the Fair Work Act 2009 or the Industrial Relations Act 1979, as amended or superseded from time to time.

16. Schedule C. – List of Awards:  Delete this Schedule and insert the following in lieu thereof:

SCHEDULE C – LIST OF AWARDS

Catering Employees and Tea Attendants (Government) Award 1982 No. A 34 of 1981

Child Care Workers (Education Department) Award No. A 20 of 1984

Children’s Services (Government) Award 1989 No. A29 & PSA A 29A of 1985

Cleaners and Caretakers (Government) Award, 1975 No. 32 of 1975

Community Welfare Department Hostels Award 1983 No. A27 of 1981

Country High School Hostels Award, 1979 No. R 7A of 1979

Cultural Centre Award 1987 No. A28 of 1988

Enrolled Nurses and Nursing Assistants (Government) Award No. R 7 of 1978

Gardeners (Government) 1986 Award No. 16 of 1983

Health Workers - Community and Child Health Services Award, 1980 No. R 21 of 1979

Hospital Employees' (Perth Dental Hospital) Award 1971 No. 4 of 1970

Hospital Workers (Government) Award No. 21 of 1966

Rangers (National Parks) Consolidated Award 2000

Recreation Camps (Department for Sport and Recreation) Award No. A28 of 1985

Teachers' Aides' Award, 1979 No. R 4 of 1979

Zoological Gardens Employees Award 1969 No. 29 of 1969