COUNTRY HIGH SCHOOL HOSTELS AWARD, 1979

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Department of Education

APPLICANT

-v-

United Workers Union

RESPONDENT

CORAM Senior Commissioner R Cosentino

DATE WEDNESDAY, 20 October 2021

FILE NO/S APPL 28 OF 2021

CITATION NO. 2021 WAIRC 00547

Result Award varied

Representation

Applicant Mr M Salamon and Mr S Dane

Respondent Mr P Bergesio

Order

WHEREAS this is an application filed by the Department of Education on 22 September 2021 to vary the Country High School Hostels Award, 1979 (Award) pursuant to s 40 of the Industrial Relations Act 1979 (WA) (IR Act);

AND WHEREAS Schedule A of the application set out the grounds upon which it is made, indicating the application is made primarily to update the Award's terminology without changing employees' substantive entitlements, and Schedule B set out the proposed key amendments;

AND WHEREAS on 30 September 2021, the respondent confirmed that it consented to the variations sought by the application;

AND WHEREAS on 19 October 2021, a directions hearing was held;

AND WHEREAS at the directions hearing, I, the undersigned, suggested an alternative form of words for clause 1 "Title" to reflect the effect of the order varying the Award and the parties' intention in relation to the application;

AND WHEREAS at the directions hearing both parties consented to the suggested alternative form of words for clause 1 "Title";

AND BEING satisfied that the amendments are not intended to, and do not, effect substantive changes to the obligations and entitlements of those covered by the Award;

AND FURTHER BEING satisfied that:

(a) The amendments proposed do not effect any substantive change to the scope of the Award or its area of operation. The application therefore does not attract the requirements of s 29A of the IR Act for publication of the proposed amendments or service on the s 29A parties;

(b) The application is not made within a term specified in the Award; and

(c) The requirements for varying the Award are met;

AND WHEREAS at the directions hearing, the parties waived their rights to speak to the minutes;

AND HAVING heard from Mr M Salamon and Mr S Dane on behalf of the applicant and Mr P Bergesio on behalf of the respondent, the Commission, pursuant to the powers conferred under the IR Act hereby orders –

1. THAT the Country High School Hostels Award, 1979 be varied in accordance with the attached Schedule and that the variations in the attached Schedule shall have effect from the date of this order.

2. THAT the requirements of s 35 of the IR Act be waived.

Senior Commissioner R Cosentino

SCHEDULE

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

Auxiliary Staff Residential Colleges

(Government) Award 2021

1. - TITLE

This award shall be known as the Auxiliary Staff Residential Colleges (Government) Award 2021 (previously known as the Country High Schools Hostels Award, 1979) and shall replace Award No. 21A of 1969.

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

2. - ARRANGEMENT

1.  Title

1B.  Minimum Adult Award Wage

2.  Arrangement

3.  Scope

4.  Term

5.  Area

6.  Hours

7.  Contract of Service

8.  Rosters

9.  Overtime

10.  Public Holidays

11.  Long Service Leave

12.  Sick Leave

13.  Conditions and Allowances

14.  Annual Leave

15.  Weekend Work

16.  Mixed Functions

17.  Laundry and Uniforms

18.  Casual Employees

19.  Shift Work

20.  Meal Money

21.  Special Rates and Provisions

22.  Supported Wage System

23.  Part-Time Employees

24.  Wages

25.  Dispute Settlement Procedure

Schedule A - Parties to the Award

Schedule B - Respondent

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

3. - SCOPE

This award shall apply to Cooks, Kitchenhands, Gardeners/Handypersons, and Domestic Employees employed in Residential Colleges as defined by the School Education Act 1999 (WA), who are eligible to be members of the United Workers Union (WA).

4. Clause 6. – Hours: delete subclause (1)(b)(iii) of this clause and insert in lieu thereof the following:

(iii) 5 agreed days during the summer student vacation period.

5. Clause 7. – Contract of Service:

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

(2) Except by agreement with the employer no employee shall resign without first giving one week's notice and in the absence of such notice the employer may withhold holiday or other pay up to the amount of a weeks wages.

B. delete subclause (5)(a) of this clause and insert in lieu thereof the following:

(5)         (a) Subject to the provisions of subclause (1) of Clause 6. - Hours, during the student vacation periods the employer shall be relieved of the obligation to provide work and the employee shall not be entitled to the payment of wages in respect of any such period during which no work is performed other than any period during which the employee is on annual leave or a public holiday which falls on a day the employee would normally have worked.

6. Clause 10. – Public Holidays: delete this clause and insert in lieu thereof the following:

10. - PUBLIC HOLIDAYS

(1)  The following days or the days observed in lieu thereof shall, subject as hereinafter provided, be allowed as holidays without deduction of pay, namely, New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Celebration Day for the Anniversary of the Birthday of the Reigning Sovereign, Western Australia Day, Labour Day, Christmas Day and Boxing Day. Provided that another day may be taken as a holiday by arrangement between the parties in lieu of the days named in this subclause.

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

(b) When any of the days observed as a holiday in this clause fall during a period of annual leave, the holiday or holidays shall be observed on the next succeeding work-day or days as the case may be after completion of that annual leave.

(3) Where -

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

(b) that proclamation does not apply throughout the State or to the metropolitan area of the State, that day shall be a public holiday or, as the case may be a public half-holiday for the purposes of this award within the district or locality specified in the proclamation.

(4) Any employee who is required to work on the day observed as a holiday as prescribed in this clause in their normal hours of work shall be paid for the time worked at the rate of double time and a half, or if the employee agrees to be paid for the time worked at the rate of time and one half and in addition be allowed to observe the holiday on a day mutually acceptable to the employer and the employee.

(5) When an employee is absent on leave without pay, sick leave without pay or workers' compensation, any day observed as a holiday on a day falling during such absence shall not be treated as a paid holiday. Where the employee is on duty or available on the whole of the working day immediately preceding a holiday, or resumes duty or is available on the whole of the working day immediately following a day observed as a holiday as prescribed by this clause, the employee shall be entitled to be paid for such holiday.

(6)  This clause shall not apply to casual employees.

7. Clause 11. – Long Service Leave: delete this clause and insert in lieu thereof the following:

11. - LONG SERVICE LEAVE

The conditions governing the granting of long service leave due to full-time government wages employees generally shall apply to employees covered by this award. Provided that all time during term student vacation periods when the employee cannot be usefully employed shall count as service for the purposes of those conditions.

8. Clause 12. – Sick Leave: delete this clause and insert in lieu thereof the following:

12. - SICK LEAVE

(1)          (a) An employee shall be entitled to payment for non-attendance on the grounds of personal ill health or injury for one sixth of a week's pay for each completed month of service.

(b) Payment hereunder may be adjusted at the end of each accruing year, or at the time the worker leaves the service of the employer, in the event of the worker being entitled by service subsequent to the sickness in that year to a greater allowance than that made at the time the sickness occurred.

(2) The unused portion of the entitlement prescribed in paragraph (a) hereof in any accruing year shall be allowed to accumulate and may be availed of in the next or any succeeding year.

(3) In order to acquire entitlement 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, the nature of the illness or injury and the estimated duration of the absence. Provided that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of the commencement of the absence.

(4) No employee shall be entitled to the benefit of this clause unless the employee produces proof to the satisfaction of the employer of such sickness provided that the employer shall not be entitled to a medical certificate for absences of less than three consecutive working days unless the total of such absences exceeds five days in any one accruing year.

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

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

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

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of this subclause that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sick leave and the replaced annual leave may be taken at another time mutually agreed to by the employer and the worker or, failing agreement, shall be added to the employee's next period of annual leave or, if termination occurs before then, be paid for in accordance with the provisions of Clause 9 - Annual Leave.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequently taken provided that the annual leave loading prescribed in Clause 9 - Annual Leave shall be deemed to have been paid with respect to the replaced annual leave.

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

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

(8) For the purposes of this clause, all time during student vacation periods when an employee cannot be usefully employed, shall count as service.

9. Clause 16. – Mixed Functions: delete this clause and insert in lieu thereof the following:

16. - MIXED FUNCTIONS

(1) Employees employed at work for which a higher rate is fixed shall be paid such higher rate whilst so employed.

(2) If employed for two hours or more on the higher class of work the employee shall be paid the higher rate for the whole of that day.

10. Clause 19. – Shift Work:

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

(1)        (a) Where on any day an employee commences their ordinary hours of work before 4 a.m. or after 12 noon, the employee shall be paid a loading with respect to those ordinary hours of fifteen per cent.

(b) The provisions of paragraph (a) of this subclause do not apply to an employee who on any day commences their ordinary hours of work after 12 noon and completes those hours before 6 p.m. on that day.

(c) Where an employee works a broken shift each portion of that shift shall be considered a separate shift for the purpose of this clause. Provided that a shift broken by a meal break of one hour or less shall not constitute a broken shift.

B. delete subclause (3) of this clause and insert in lieu thereof the following:

(3) Where an employee's rostered hours of duty in any day are extended by an early start or a late finish the shift work or weekend rates as the case may be shall be paid for such additional time worked in addition to any overtime payable under clause 9. - Overtime of this award.

11. Clause 24. – Wages: delete subclause (1)(a) of this clause and insert in lieu thereof the following:

(1)         (a) The minimum weekly rates of wage payable to employees covered by this award shall be as follows:

The classification Domestic Employee includes the following designations:

Kitchenhands, Cleaner, Yard Assistant, Dining Room Attendant, and Laundry Attendant.

12. Clause 25. – Dispute Settlement Procedure: add a new clause 25 as follows:

25. - DISPUTE SETTLEMENT PROCEDURE

(1) Any questions, disputes or difficulties arising under the award or in the course of the employment of employees covered by the award shall be dealt with in accordance with this clause.

(2) The employee/s and the manager with whom the dispute has arisen shall discuss the matter and attempt to find a satisfactory solution within three working days.

(3) If the dispute cannot be resolved at this level, the matter shall be referred to and be discussed with the relevant manager's superior and an attempt made to find a satisfactory solution within a further three working days.

(4) If the dispute is still not resolved, it may be referred by the employee/s or union representative to the employer or their nominee.

(5) Where the dispute cannot be resolved within five working days of the union representative's referral of the dispute to the employer or their nominee, either party may refer the matter to the Commission.

(6) The period for resolving a dispute may be extended by agreement between the parties.

(7) At all stages of the procedure, the employee may be accompanied by a union representative.

(8) Notwithstanding the above, the union may raise matters directly with representatives of the employer. In each case, the union and the employer shall endeavour to reach agreement. If no agreement is reached, either party may refer the dispute to the Commission for conciliation and/or arbitration.

13. Appendix – Resolution of Disputes Requirement: delete this appendix in its entirety.

14. Schedule A – Parties to the Award: delete this clause and insert in lieu thereof the following:

SCHEDULE A - PARTIES TO THE AWARD

The following organisation is a party to this award:

United Workers Union (WA)

15. Schedule B – Respondent: delete this clause and insert in lieu thereof the following:

SCHEDULE B - RESPONDENT

The Director General of the

Department of Education

151 Royal Street

EAST PERTH WA 6004

16. Schedule C – Liberty to Apply: delete this clause in its entirety.