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Pest Control Industry Award 2020
This Fair Work Commission consolidated modern award incorporates all amendments up to and including 27 August 2024 (PR777331 and PR778070).
Clause(s) affected by the most recent variation(s):
11—Casual employees
13A—Employee right to disconnect
31—Dispute resolution
Table of Contents
[Varied by PR746868, PR747417, PR750517, PR774822, PR778070]
Schedule D —Agreement for Time Off Instead of Payment for Overtime............................. 55
Part 1—Application and Operation of this Award
1.1 This award is the Pest Control Industry Award 2020.
1.2 This modern award commenced operation on 1 January 2010. The terms of the award have been varied since that date.
1.3 A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the award as it existed prior to that variation.
[Varied by PR733856, PR774822, PR777331]
In this award, unless the contrary intention appears:
Act means the Fair Work Act 2009 (Cth).
[Definition of casual employee inserted by PR733856 from 27Sep21; varied by PR777331 from 27Aug24]
casual employee has the meaning given by section 15A of the Act.
NOTE: Section 15A of the Act was amended with effect from 26 August 2024. Under clause 102(3) of Schedule 1 to the Act, an existing employee who was a casual employee of an employer under section 15A as it was immediately before that date is taken to be a casual employee of the employer for the purposes of section 15A after that date.
defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth).
employee means national system employee within the meaning of the Act.
[Definition of employee organisation inserted by PR774822 from 01Jul24]
employee organisation has the meaning given by section 12 of Act.
employer means national system employer within the meaning of the Act.
[Definition of enterprise inserted by PR774822 from 01Jul24]
enterprise has the meaning given by section 12 of the Act.
exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).
leading hand is an employee who is directed to control, supervise and take responsibility for the work performed by 2 or more employees.
MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).
NES means the National Employment Standards as contained in sections 59 to 131 of the Act.
on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.
pest control industry has the meaning given in clause 4.2.
[Definition of small business employer inserted by PR774822 from 01Jul24]
small business employer has the meaning given by section 23 of the Act.
standard rate means the minimum weekly rate for a Level 3 employee in clause 16.1—Minimum rates.
[Definition of workplace delegate inserted by PR774822 from 01Jul24]
workplace delegate has the meaning given by section 350C(1) of the Act.
3. The National Employment Standards and this award
3.1 The National Employment Standards (NES) and this award contain the minimum conditions of employment for employees covered by this award.
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
3.3 The employer must ensure that copies of the award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.
4.1 This industry award covers employers throughout Australia in the pest control industry and their employees in the classifications listed in clause 12—Classifications to the exclusion of any other modern award.
(a) the inspection of buildings, structures, trees, commodities and stored products or items for pest activity, and reporting on pest activity in domestic, commercial and civic buildings or any situation where pest activity may be of concern; and
(b) the installation, maintenance or inspection of termite, bird or other pest barriers or management systems in new or existing buildings or structures including the use of fumigants in all forms.
4.3 This award does not cover employers covered by the following modern awards:
(a) Clerks—Private Sector Award 2020;
(b) Local Government Industry Award 2020; or
(c) Manufacturing and Associated Industries and Occupations Award 2020.
4.4 This award covers any employer which supplies labour on an on-hire basis in the pest control industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.4 operates subject to the exclusions from coverage in this award.
4.5 This award covers employers which provide group training services for trainees engaged in the pest control industry and/or parts of that industry and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.5 operates subject to the exclusions from coverage in this award.
4.6 This industry award does not cover:
(a) an employee excluded from award coverage by the Act;
(b) employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or
(c) employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
5. Individual flexibility arrangements
5.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:
(a) arrangements for when work is performed; or
(b) overtime rates; or
(c) penalty rates; or
(d) allowances; or
(e) annual leave loading.
5.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.
5.3 An agreement may only be made after the individual employee has commenced employment with the employer.
5.4 An employer who wishes to initiate the making of an agreement must:
(a) give the employee a written proposal; and
(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.
5.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.
5.6 An agreement must do all of the following:
(a) state the names of the employer and the employee; and
(b) identify the award term, or award terms, the application of which is to be varied; and
(c) set out how the application of the award term, or each award term, is varied; and
(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and
(e) state the date the agreement is to start.
5.7 An agreement must be:
(a) in writing; and
5.8 Except as provided in clause 5.7(b), an agreement must not require the approval or consent of a person other than the employer and the employee.
5.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.
5.10 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.
5.11 An agreement may be terminated:
(a) at any time, by written agreement between the employer and the employee; or
NOTE: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in section 144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see section 145 of the Act).
5.12 An agreement terminated as mentioned in clause 5.11(b) ceases to have effect at the end of the period of notice required under that clause.
5.13 The right to make an agreement under clause 5 is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.
6. Requests for flexible working arrangements
[6 substituted by PR763303 ppc 01Aug23]
Requests for flexible working arrangements are provided for in the NES.
NOTE: Disputes about requests for flexible working arrangements may be dealt with under clause 31—Dispute resolution and/or under section 65B of the Act.
7.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an employer and an individual employee, or an employer and the majority of employees in the enterprise or part of the enterprise concerned.
7.2 Facilitative provisions in this award are contained in the following clauses:
|
Clause |
Provision |
Agreement between an employer and: |
|
14.1(b) |
Rostering |
The majority of employees |
|
14.4 |
Substitution of public holidays |
An individual |
|
14.5 |
12-hour shifts |
The majority of employees |
|
20.9 |
Time off instead of payment for overtime |
An individual |
|
23.5 |
Annual leave in advance |
An individual |
|
23.10 |
Cashing out of annual leave |
An individual |
|
28.2 |
Substitution of public holidays |
An individual |
Part 2—Types of Employment and Classifications
8.1 Employees under this award will be employed in one of the following categories:
(a) full-time employment;
(b) part-time employment; or
(c) casual employment.
8.2 At the time of engagement an employer must inform each employee in writing of the terms of their engagement and in particular whether they are to be full-time, part‑time or casual. This will be recorded in the time and wages record of the employee.
9.1 A full-time employee is engaged to work 38 ordinary hours per week.
9.2 Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in the award.
[Varied by PR733856]
10.1 A part-time employee:
(a) is engaged to work less than 38 ordinary hours per week;
(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.
10.2 At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work specifying at least:
(a) the hours worked each day;
(b) which days of the week the employee will work; and
(c) the actual starting and finishing times for each day.
10.3 Any agreed variation to the hours of work in clause 10.2 will be in writing.
10.4 A part-time employee must be engaged for a minimum of 3 consecutive hours per start including if called in for a separate engagement for overtime.
10.5 All time worked in excess of the hours agreed under clause 10.2 or varied under clause 10.3 will be overtime and paid for at the overtime rates prescribed in clause 20—Overtime.
[10.6 deleted by PR733856 from 27Sep21]
[10.7 renumbered as 10.6 by PR733856 from 27Sep21]
10.6 A part-time employee under the provisions of clause 10 must be paid for each ordinary hour worked at the minimum hourly rate prescribed for the appropriate classification.
[Varied by PR723943, PR733856, PR777331]
[11.1 deleted by PR733856 from 27Sep21]
[11.2 renumbered as 11.1 by PR733856 from 27Sep21]
11.1 A casual employee is engaged to work less than 38 hours per week.
[11.3 renumbered as 11.2 by PR733856 from 27Sep21]
11.2 An employer or casual employee may terminate the employment relationship with one hour’s notice by either party.
[11.4 renumbered as 11.3 by PR733856 from 27Sep21]
[11.5 renumbered as 11.4 by PR733856 from 27Sep21]
11.4 The casual loading is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and the other attributes of full-time or part-time employment provided for in this award.
[New 11.6 inserted by PR723943 ppc 20Nov20; 11.6 renumbered as 11.5 by PR733856 from 27Sep21]
11.5 When a casual employee works overtime, they must be paid the overtime rates in clause 20.2.
[11.6 renumbered as 11.7 by PR723907, 11.7 renumbered as 11.6 by PR733856 from 27Sep21]
11.6 A casual employee must be paid for a minimum of 3 hours for each start on any day.
11.7 Changes to casual employment status
[11.7 renumbered as 11.8 by PR723907; 11.8 renumbered as 11.7 and renamed and substituted by PR733856; renamed and substituted by PR777331 from 27Aug24]
A pathway for employees to change from casual employment to full-time or part-time employment is provided for in the NES. See sections 66A to 66MA of the Act.
NOTE: Disputes about changes to casual employment status may be dealt with under sections 66M and 66MA of the Act and/or under clause 31—Dispute resolution.
12.1 All employees covered by this award must be classified according to the following structure:
(a) Level 1
A Level 1 employee is a person who has entered the industry with no previous experience and has yet to apply for a licence. An employee at this level has been employed in the industry for less than 6 months.
(b) Level 2
A Level 2 employee is a person who has applied for a licence pursuant to relevant government regulation as either a Fumigator or a Pest Control Technician but has yet to be examined or licensed other than provisionally. Such an employee is presently undertaking an accredited course to obtain a pest operator’s certificate.
(c) Level 3
A Level 3 employee is a person who has successfully obtained a pest operator’s certificate and has been granted a licence to operate as either a Fumigator or Pest Control Technician.
(d) Level 4
A Level 4 employee is a person who has been granted licences to operate as both a Fumigator and a Pest Control Technician.
(e) Level 5
A Level 5 employee is a person who is qualified to operate as a Pest Inspector.
12.2 Employers must advise their employees in writing of their classification and any changes to their classification.
12.3 The classification must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
13.1 The ordinary hours of work will be an average of 38 hours per week over a maximum work cycle of 4 weeks.
(a) Except where ordinary hours of work are performed under an averaging system, ordinary hours of work for day workers will not exceed 38 hours per week.
(b) The ordinary hours are to be worked in up to 5 shifts of 7.6 hours on any day.
(c) Ordinary hours may be worked on Monday to Sunday, between the hours of 6.00 am and 6.00 pm.
(a) The standard ordinary hours of work for shiftworkers will not, except as provided elsewhere in clause 13, exceed 38 hours per week.
(b) The ordinary hours are to be worked in up to 5 shifts of 7.6 hours on any day, Monday to Sunday.
(c) These ordinary hours will be worked continuously except for meal breaks, crib breaks and rest periods as provided for in clause 15—Breaks.
13A. Employee right to disconnect
[13A inserted by PR778070 from 26Aug24]
13A.1 Clause 13A provides for the exercise of an employee’s right to disconnect under section 333M of the Act.
NOTE:
(a) Section 333M provides that, unless it is unreasonable to do so, an employee may refuse to monitor, read or respond to contact, or attempted contact, from:
(1) their employer outside of the employee’s working hours,
(2) a third party if the contact or attempted contact relates to, their work and is outside of the employee's working hours.
(b) Section 333M(3) lists matters that must be taken into account in determining whether an employee’s refusal is unreasonable.
(c) Section 333M(5) provides that an employee’s refusal will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.
(d) Section 333N provides for the resolution of disputes about whether an employee’s refusal is unreasonable and about the operation of section 333M.
(e) The general protections in Part 3–1 of the Act prohibit an employer taking adverse action against an employee because of the employee’s right to disconnect under section 333M of the Act.
13A.2 Clause 13A applies from the following dates:
(a) 26 August 2024—for employers that are not small business employers on this date and their employees.
(b) 26 August 2025—for employers that are small business employers on 26 August 2024 and their employees.
13A.3 An employer must not directly or indirectly prevent an employee from exercising their right to disconnect under the Act.
13A.4 Clause 13A.3 does not prevent an employer from contacting, or attempting to contact, an employee outside of the employee’s working hours in circumstances including to notify them of a recall to work under clause 20.8.
14.1 Where there is agreement between the employer and employee ordinary hours may be worked in one of the ways set out in clauses 14.1(a) to 14.1(d).
(c) Employees may work shorter hours on each day.
(d) Employees may work shorter hours on one or more days of each week.
14.3 Once set, the starting and finishing times will not be altered unless one week’s notice is given. Changes to rosters or hours of work are subject to clause 30—Consultation about changes to rosters or hours of work.
14.4 Where a rostered day off falls on a public holiday as prescribed in clause 28—Public holidays the next working day will be taken as the rostered day off. Another day may be substituted by agreement between the employer and employee.
By agreement between an employer and the majority of employees in an establishment or the work location concerned, ordinary hours not exceeding 12 on any day may be worked subject to:
(a) proper health monitoring procedures being introduced;
(b) suitable rostering arrangements being made; and
(c) proper supervision being provided (where applicable).
15.1 Meal and crib breaks
(b) An employee who is required to work for more than 2 hours beyond their normal finishing time on any day will be allowed a crib break of 20 minutes at ordinary rates. After each further 4 hours worked an employee will be entitled to a further crib break of 20 minutes without deduction of pay, if the employee continues working after such crib break.
(c) An employer may organise breaks to be taken at times that will not interfere with the continuity of work provided that the requirements of clause 15.1(a) are observed.
15.2 Rest breaks
An employee will be entitled to one paid rest break of 10 minutes to be taken before the meal break and a further rest break of 10 minutes after the meal break where the employee is required to work more than 6 hours on any day or shift. The rest breaks will be taken at times that will not interfere with the continuity of work. These breaks are to be counted as time worked.
15.3 Washing time
An employee will be entitled to 10 minutes before each meal break and a further 10 minutes before finishing work each day for the purpose of washing and changing their clothes. These periods are to be counted as time worked.
[Varied by PR718915, PR729357, PR740783, PR762206, PR773986]
[16.1 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
16.1 The employer must pay employees the following minimum rates for ordinary hours worked by the employee:
|
Employee classification |
Minimum weekly rate (full-time employee) |
Minimum hourly rate |
|
|
$ |
$ |
|
Level 1 |
900.60 |
23.70 |
|
Level 2 |
921.60 |
24.25 |
|
Level 3 |
949.20 |
24.98 |
|
Level 4 |
968.10 |
25.48 |
|
Level 5 |
1041.80 |
27.42 |
NOTE: See Schedule A—Summary of Hourly Rates of Pay for a summary of hourly rates of pay, including overtime and penalty rates.
For employees who because of the effects of a disability are eligible for a supported wage, see Schedule C—Supported Wage System.
(a) Schedule E to the Miscellaneous Award 2020 sets out minimum wage rates and conditions for employees undertaking traineeships.
[16.3(b) varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
(b) This award incorporates the terms of Schedule E to the Miscellaneous Award 2020 as at 1 July 2024. Provided that any reference to “this award” in Schedule E to the Miscellaneous Award 2020 is to be read as referring to the Pest Control Industry Award 2020 and not the Miscellaneous Award 2020.
NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.
17.1 Frequency of pay
Wages including overtime, penalties and allowances must be paid weekly or fortnightly.
17.2 Method of payment
The employer may pay an employee’s wages by electronic funds transfer (EFT) into a bank or financial institution nominated by the employee or by cash or cheque.
17.3 Time of payment—cash or cheque
If payment is by cash or cheque, wages will be paid during ordinary working hours.
17.4 Payment on termination of employment
(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and
(ii) all other amounts that are due to the employee under this award and the NES.
(b) The requirement to pay wages and other amounts under clause 17.4(a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.
NOTE 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.
NOTE 2: Clause 17.4(b) allows the Commission to make an order delaying the requirement to make a payment under clause 17.4. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.
NOTE 3: State and Territory long service leave laws or long service leave entitlements under section 113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.
[Varied by PR718915, PR719067, PR729357, PR729540, PR740783, PR740946, PR762206, PR762373, PR774155]
NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.
18.1 Employers must pay to an employee the allowances the employee is entitled to under clause 18.
NOTE: See Schedule B—Summary of Monetary Allowances for a summary of monetary allowances and method of adjustment.
18.2 Wage-related allowances
[18.2(a) varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
A leading hand will be paid the rate prescribed for the highest class of work supervised or their own classification rate plus the following additional allowance, whichever is higher:
|
In charge of: |
$ per week |
|
2 to 10 employees |
37.87 |
|
11 to 21 employees |
56.67 |
|
More than 21 employees |
76.98 |
(b) Verminous/decomposed human body allowance
[18.2(b) varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
An employee required to treat a verminous or decomposed human body will be paid an additional $113.52 on each occasion.
(c) Work performed in fumigation depot allowance
[18.2(c) varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
An additional $8.83 will be paid for each day on which work is performed in, or in connection with, fumigation depots carrying out the process of tent, vacuum tank or container fumigation. This allowance is paid in recognition of all disabilities encountered by employees working in fumigation depots.
[18.2(d)(i) varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
(i) A full-time employee will be paid an additional $20.12 per week if they:
· have been trained to perform first aid;
· hold a current first aid qualification; and
· are appointed by the employer to perform first aid duty.
(ii) Employees will be reimbursed for the cost of maintenance of a first aid kit upon presentation of receipts, if the kit is not provided by the employer.
18.3 Expense-related allowances
[18.3(a)(i) varied by PR719067, PR729540, PR740946, PR762373, PR774155 ppc 01Jul24]
(i) The employer will either supply a meal or pay a meal allowance of $17.73 for the first and subsequent meals to an employee where the employee is required to work overtime for more than 2 hours without being notified on the previous day or earlier that they will be required to work.
(ii) If notice has been provided and the employee is not required to work overtime or is required to work less than the amount advised, the employer will pay the employee the meal allowance in clause 18.3(a)(i) for each meal the employee has provided themselves.
[18.3(b) varied by PR729540, PR740946, PR762373, PR774155 ppc 01Jul24]
An employee who by agreement with the employer uses the employee’s own motor vehicle in the course of the employer’s business will be paid an allowance of $0.98 per kilometre travelled.
(i) Country work means employment at a place which requires the employee to live away from their usual place of residence.
[18.3(c)(ii) varied by PR719067, PR729540, PR740946, PR762373 ppc 01Jul23]
(iii) Time occupied in travelling to and from country work will be paid for at ordinary rates in addition to wages otherwise earned, provided that an employee will not be paid for more than 8 hours occupied in travelling on any one day. A day for the purposes of clause 18.3(c) means from midnight on one day to midnight on the next day.
[18.3(c)(iv) varied by PR719067, PR729540, PR740946, PR762373, PR774155 ppc 01Jul24]
(iv) An employee required to undertake country work will be paid a meal allowance of $10.98 for each meal occurring during the travel time described in clause 18.3(c)(iii). This allowance will not be payable if the employee is otherwise entitled to a meal allowance pursuant to clauses 18.3(a) or 18.3(c)(ii).
18.4 Safety clothing and equipment
(a) An employer will provide and maintain all equipment required for carrying out a job.
(b) The equipment will include suitable respirators, goggles, boots and/or gloves, where reasonably required.
(c) This equipment will remain the property of the employer and will be replaced by the employee if lost by them or destroyed through the employee’s negligence provided that reasonable facilities are to be made available by the employer for the safe keeping of such equipment.
(d) The employer will provide, and maintain free of charge, all necessary protective clothing for the use of employees. This clothing will be issued in good condition and be retained by the employees during the period of their employment. It will be replaced by the employer when required. Such protective clothing will, among other things, include overalls and/or dust coats.
(e) Employees will use the appropriate protective clothing and equipment provided and required to be used by the employer in the proper manner, and will comply with any other specified safe working requirements.
[Varied by PR771372]
19.1 Superannuation legislation
[19.1 substituted by PR771372 ppc 09Apr24]
(a) The NES and Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), deal with the superannuation rights and obligations of employers and employees.
(b) The rights and obligations in clause 19 supplement those in superannuation legislation and the NES.
NOTE: Under superannuation legislation:
(a) Individual employees generally have the opportunity to choose their own superannuation fund.
(b) If a new employee does not choose a superannuation fund, the employer must ask the Australian Taxation Office (ATO) whether the employee is an existing member of a stapled superannuation fund and, if stapled fund details are provided by the ATO, make contributions to the stapled fund.
(c) If an employee does not choose a superannuation fund and does not have a stapled fund, the choice of superannuation fund requirements will be satisfied by contributions made to a superannuation fund nominated in the award covering the employee, provided the fund is able to accept contributions for the benefit of the employee.
(d) A fund may not be able to accept contributions for the benefit of an employee if the employee would be a new member of the fund’s MySuper product and the MySuper product is closed to new members because it has failed the performance tests of Australian Prudential Regulation Authority (APRA) for 2 consecutive years.
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
19.3 Voluntary employee contributions
(a) Subject to the governing rules of the relevant superannuation fund, an employee may, in writing, authorise their employer to pay on behalf of the employee a specified amount from the post-taxation wages of the employee into the same superannuation fund as the employer makes the superannuation contributions provided for in clause 19.2.
(c) The employer must pay the amount authorised under clauses 19.3(a) or 19.3(b) no later than 28 days after the end of the month in which the deduction authorised under clauses 19.3(a) or 19.3(b) was made.
19.4 Superannuation fund
[19.4 varied by PR771372 ppc 09Apr24]f
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 19.2 to another superannuation fund, the employer must make the superannuation contributions provided for in clause 19.2 and pay any amount authorised under clauses 19.3(a) or 19.3(b) to one of the following superannuation funds or its successor, provided that, in respect of new employees, the fund is able to accept new beneficiaries:
(a) CareSuper;
(b) AustralianSuper;
(c) Statewide Superannuation Trust;
(d) Sunsuper;
(e) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund and is a fund that offers a MySuper product or is an exempt public sector superannuation scheme; or
(f) a superannuation fund or scheme which the employee is a defined benefit member of.
Part 5—Overtime, Penalty Rates and Shiftwork
[Varied by PR723943, PR763303]
[20.1 substituted by PR723943 ppc 20Nov20]
20.1 All time worked by a full-time or part-time employee in excess of, or outside the ordinary hours of work will be paid for at 150% of the minimum hourly rate for the first 2 hours and at 200% of the minimum hourly rate after 2 hours.
[New 20.2 inserted by PR723943 ppc 20Nov20]
NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.3 to the overtime rates for full-time and part-time employees prescribed by clause 20.1.
[20.2 renumbered as 20.3 by PR723943 ppc 20Nov20]
20.3 In calculating overtime each day’s work will stand alone.
[20.3 renumbered as 20.4 by PR723943 ppc 20Nov20]
20.4 Work done outside the hours notified in accordance with clause 14.2 will be paid at overtime rates.
[20.4 renumbered as 20.5 by PR723943 ppc 20Nov20]
20.5 An employee required to work overtime which is not continuous with ordinary hours will be paid a minimum of 4 hours at the appropriate overtime rate.
[20.5 renumbered as 20.6 by PR723943 ppc 20Nov20]
20.6 An employee required to work during their meal break will be paid at overtime rates until the meal break is taken.
20.7 Rest period after overtime
[20.6 renumbered as 20.7 by PR723943 ppc 20Nov20]
(a) When overtime work is necessary it will, wherever reasonably practicable be arranged so that employees have at least 10 consecutive hours off duty between the work of successive days.
(b) An employee, other than a casual employee, who works so much overtime between finishing work on one day and starting work on the next day that the employee has not had at least 10 consecutive hours off duty between those times will, subject to clause 20.7, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during the rest period.
(c) If, on the instructions of the employer, an employee resumes or continues work without having had the 10 consecutive hours off duty the employee will be paid at 200% of the minimum hourly rate until they are released from duty for such period. The employee is then entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during the absence.
(d) The provisions of clause 20.7 will apply in the case of shiftworkers as if 8 hours were substituted for 10 hours when overtime is worked in the following circumstances:
(i) for the purpose of changing shift rosters; or
(ii) where a shift is worked by arrangement between the employees themselves.
[20.7 renumbered as 20.8 by PR723943 ppc 20Nov20]
An employee recalled to work overtime after leaving the employer’s business premises, whether notified before or after leaving the premises, will be paid for a minimum of 4 hours’ work at the appropriate overtime rate for each time they are recalled.
20.9 Time off instead of payment for overtime
[20.8 renumbered as 20.9 by PR723943 ppc 20Nov20]
(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours were worked;
(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
(iv) that any payment mentioned in clause 20.9(c)(iii) must be made in the next pay period following the request.
NOTE: An example of the type of agreement required by clause 20.9 is set out at Schedule D—Agreement for Time Off Instead of Payment for Overtime. There is no requirement to use the form of agreement set out at Schedule D—Agreement for Time Off Instead of Payment for Overtime. An agreement under clause 20.9 can also be made by an exchange of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.
EXAMPLE: By making an agreement under clause 20.9 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and employer.
(f) If the employee requests at any time, to be paid for overtime covered by an agreement under clause 20.9 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in clause 20.9(e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause 20.9 as an employee record.
(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 20.9 will apply, including the requirement for separate written agreements under clause 20.9(b) for overtime that has been worked.
[Note varied by PR763303 ppc 01Aug23]
NOTE: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65A(3) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 20.9 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
NOTE: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 20.9.
[Varied by PR747417]
21.1 Weekend work
(a) An employee who works ordinary hours on a Saturday will be paid at 150% of the minimum hourly rate. The employee will be paid for a minimum of 3 hours’ work.
(b) An employee who works ordinary hours on a Sunday will be paid at 200% of the minimum hourly rate. The employee will be paid for a minimum of 4 hours’ work.
[Paragraph in 21.2 numbered as 21.2(a) by PR747417 ppc 14Nov22]
[21.2(b) inserted by PR747417 ppc 14Nov22]
(b) Hours of work performed immediately before or after a part-day public holiday, that form part of one continuous shift, are counted as part of the minimum payment/engagement period in clause 21.2(a).
(a) Afternoon shift means any shift finishing after 6.00 pm and at or before midnight where the majority of time worked is between the hours of 6.00 pm and midnight.
(b) Night shift means any shift finishing after midnight and at or before 8.00 am or where the majority of time worked is between the hours of midnight and 8.00 am.
22.2 An employee who works an afternoon shift must be paid at 115% of the minimum hourly rate.
22.3 An employee who works a night shift must be paid at 120% of the minimum hourly rate.
22.5 The shiftwork penalty rates in clauses 22.2, 22.3 and 22.4 are not payable where an employee is entitled to another penalty rate for overtime, weekends or public holidays.
Part 6—Leave and Public Holidays
[Varied by PR751102]
23.1 Annual leave is provided for in the NES. Clause 23 supplements or deals with matters incidental to the NES provisions.
For the purpose of the additional week of annual leave for shiftworkers provided for in the NES, a shiftworker is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays.
Before the start of an employee’s annual leave the employer must pay the employee:
(a) instead of the base rate of pay referred to in the NES, the amount the employee would have earned for working their ordinary hours had they not been on leave; and
(b) an additional loading of 17.5% of the employee’s minimum hourly rate prescribed in clause 16—Minimum rates, plus the leading hand and first aid allowances where appropriate or, if they were a shiftworker prior to entering leave, their shift penalty, whichever is greater.
23.4 Electronic funds transfer (EFT) payment of annual leave
Despite anything else in clause 23, an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.
(a) An employer and employee may agree in writing to the employee taking a period of paid annual leave before the employee has accrued an entitlement to the leave.
(b) An agreement must:
(i) state the amount of leave to be taken in advance and the date on which leave is to commence; and
(ii) be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.
NOTE: An example of the type of agreement required by clause 23.5 is set out at Schedule E—Agreement to Take Annual Leave in Advance. There is no requirement to use the form of agreement set out at Schedule E—Agreement to Take Annual Leave in Advance.
(c) The employer must keep a copy of any agreement under clause 23.5 as an employee record.
(d) If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken in accordance with an agreement under clause 23.5, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.
23.6 Excessive leave accruals: general provision
NOTE: Clauses 23.6 to 23.8 contain provisions, additional to the NES, about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Act.
(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 23.2).
(c) Clause 23.7 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
(d) Clause 23.8 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
23.7 Excessive leave accruals: direction by employer that leave be taken
(a) If an employer has genuinely tried to reach agreement with an employee under clause 23.6(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.
(b) However, a direction by the employer under clause 23.7(a):
(i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid annual leave arrangements (whether made under clause 23.6, 23.7 or 23.8 or otherwise agreed by the employer and employee) are taken into account; and
(ii) must not require the employee to take any period of paid annual leave of less than one week; and
(iii) must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given; and
(iv) must not be inconsistent with any leave arrangement agreed by the employer and employee.
(c) The employee must take paid annual leave in accordance with a direction under clause 23.7(a) that is in effect.
(d) An employee to whom a direction has been given under clause 23.7(a) may request to take a period of paid annual leave as if the direction had not been given.
NOTE 1: Paid annual leave arising from a request mentioned in clause 23.7(d) may result in the direction ceasing to have effect. See clause 23.7(b)(i).
NOTE 2: Under section 88(2) of the Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
23.8 Excessive leave accruals: request by employee for leave
(a) If an employee has genuinely tried to reach agreement with an employer under clause 23.6(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.
(b) However, an employee may only give a notice to the employer under clause 23.8(a) if:
(i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice; and
(ii) the employee has not been given a direction under clause 23.7(a) that, when any other paid annual leave arrangements (whether made under clause 23.6, 23.7 or 23.8 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.
(c) A notice given by an employee under clause 23.8(a) must not:
(i) if granted, result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than 6 weeks when any other paid annual leave arrangements (whether made under clause 23.6, 23.7 or 23.8 or otherwise agreed by the employer and employee) are taken into account; or
(ii) provide for the employee to take any period of paid annual leave of less than one week; or
(iii) provide for the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the notice is given; or
(iv) be inconsistent with any leave arrangement agreed by the employer and employee.
(d) An employee is not entitled to request by a notice under clause 23.8(a) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 23.2) in any period of 12 months.
(e) The employer must grant paid annual leave requested by a notice under clause 23.8(a).
23.9 Direction to take annual leave during shutdown
[23.9 renamed and substituted by PR751102 ppc 01May23]
(a) Clause 23.9 applies if an employer:
(i) intends to shut down all or part of its operation for a particular period for the purpose, among other, of allowing annual leave to the employees concerned or a majority of them (temporary shutdown period); and
(ii) wishes to require affected employees to take paid annual leave during that period.
(c) The employer must give written notice of a temporary shutdown period to any employee who is engaged after the notice is given under clause 23.9(b) and who will be affected by that period, as soon as reasonably practicable after the employee is engaged.
(e) A direction by the employer under clause 23.9(d):
(i) must be in writing; and
(ii) must be reasonable.
(f) The employee must take paid annual leave in accordance with a direction under clause 23.9(d).
(g) In respect of any part of a temporary shutdown period which is not the subject of a direction under clause 23.9(d), an employer and an employee may agree, in writing, for the employee to take leave without pay during that part of the temporary shutdown period.
(h) An employee may take annual leave in advance during a temporary shutdown period in accordance with an agreement under clause 23.5.
(i) In determining the amount of paid annual leave to which an employee has accrued an entitlement, any period of paid annual leave taken in advance by the employee, in accordance with an agreement under clause 23.5, to which an entitlement has not been accrued, is to be taken into account.
(j) Clauses 23.6 to 23.8 do not apply to a period of annual leave that an employee is required to take during a temporary shutdown period in accordance with clause 23.9.
23.10 Cashing out of annual leave
(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 23.10.
(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 23.10.
(c) An employer and an employee may agree in writing to the cashing out of a particular amount of accrued paid annual leave by the employee.
(d) An agreement under clause 23.10 must state:
(i) the amount of leave to be cashed out and the payment to be made to the employee for it; and
(ii) the date on which the payment is to be made.
(e) An agreement under clause 23.10 must be signed by the employer and employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.
(f) The payment must not be less than the amount that would have been payable had the employee taken the leave at the time the payment is made.
(g) An agreement must not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks.
(h) The maximum amount of accrued paid annual leave that may be cashed out in any period of 12 months is 2 weeks.
(i) The employer must keep a copy of any agreement under clause 23.10 as an employee record.
NOTE 1: Under section 344 of the Act, an employer must not exert undue influence or undue pressure on an employee to make, or not make, an agreement under clause 23.10.
NOTE 2: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 23.10.
NOTE 3: An example of the type of agreement required by clause 23.10 is set out at Schedule F—Agreement to Cash Out Annual Leave. There is no requirement to use the form of agreement set out at Schedule F—Agreement to Cash Out Annual Leave.
24. Personal/carer’s leave and compassionate leave
Personal/carer’s leave and compassionate leave are provided for in the NES.
25. Parental leave and related entitlements
[25 varied by PR763303 ppc 01Aug23]
Parental leave and related entitlements are provided for in the NES.
NOTE: Disputes about requests for extensions to unpaid parental leave may be dealt with under clause 31—Dispute resolution and/or under section 76B of the Act.
Community service leave is provided for in the NES.
27. Family and domestic violence leave
[27—Unpaid family and domestic violence leave renamed and substituted by PR750517 ppc 15Mar23]
Family and domestic violence leave is provided for in the NES.
NOTE 1: Information provided to employers concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers are subject to confidentiality requirements regarding the handling of this information under section 106C of the Act and requirements as to what can be reported on payslips pursuant to regulations 3.47 and 3.48 of the Fair Work Regulations 2009.
NOTE 2: Depending upon the circumstances, evidence that would satisfy a reasonable person of the employee’s need to take family and domestic violence leave may include a document issued by the police service, a court or family violence support service, or a statutory declaration.
[Varied by PR747417]
28.1 Public holiday entitlements are provided for in the NES. Clause 28 supplements or deals with matters incidental to the NES provisions.
28.2 Substitution of public holidays by agreement
(a) An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.
(b) An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.
[28.3 deleted by PR747417 ppc 14Nov22]
[28.4 renumbered as 28.3 by PR747417 ppc 14Nov22]
28.3 An employee required to work on a public holiday will be paid in accordance with clause 21.2.
Part 7—Workplace Delegates, Consultation and Dispute Resolution
[Part 7—Consultation and Dispute Resolution renamed by PR774822 from 01Jul24]
28A. Workplace delegates’ rights
[28A inserted by PR774822 from 01Jul24]
28A.1 Clause 28A provides for the exercise of the rights of workplace delegates set out in section 350C of the Act.
NOTE: Under section 350C(4) of the Act, the employer is taken to have afforded a workplace delegate the rights mentioned in section 350C(3) if the employer has complied with clause 28A.
28A.2 In clause 28A:
(a) employer means the employer of the workplace delegate;
(b) delegate’s organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and
(c) eligible employees means members and persons eligible to be members of the delegate’s organisation who are employed by the employer in the enterprise.
28A.3 Before exercising entitlements under clause 28A, a workplace delegate must give the employer written notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election.
28A.4 An employee who ceases to be a workplace delegate must give written notice to the employer within 14 days.
28A.5 Right of representation
A workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate in matters including:
(a) consultation about major workplace change;
(b) consultation about changes to rosters or hours of work;
(c) resolution of disputes;
(d) disciplinary processes;
(e) enterprise bargaining where the workplace delegate has been appointed as a bargaining representative under section 176 of the Act or is assisting the delegate’s organisation with enterprise bargaining; and
(f) any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests.
28A.6 Entitlement to reasonable communication
(a) A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 28A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees.
(b) A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work.
28A.7 Entitlement to reasonable access to the workplace and workplace facilities
(a) The employer must provide a workplace delegate with access to or use of the following workplace facilities:
(i) a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible employees;
(ii) a physical or electronic noticeboard;
(iii) electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi;
(iv) a lockable filing cabinet or other secure document storage area; and
(v) office facilities and equipment including printers, scanners and photocopiers.
(b) The employer is not required to provide access to or use of a workplace facility under clause 28A.7(a) if:
(i) the workplace does not have the facility;
(ii) due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or
(iii) the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.
28A.8 Entitlement to reasonable access to training
Unless the employer is a small business employer, the employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least one day each subsequent year, to attend training related to representation of the industrial interests of eligible employees, subject to the following conditions:
(a) In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees.
(b) The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are:
(i) full-time or part-time employees; or
(ii) regular casual employees.
(c) Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.
(d) The workplace delegate must give the employer not less than 5 weeks’ notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.
(e) If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.
(f) The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether the workplace delegate’s access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld.
(g) The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training.
28A.9 Exercise of entitlements under clause 28A
(a) A workplace delegate’s entitlements under clause 28A are subject to the conditions that the workplace delegate must, when exercising those entitlements:
(i) comply with their duties and obligations as an employee;
(ii) comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;
(iii) not hinder, obstruct or prevent the normal performance of work; and
(iv) not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.
(b) Clause 28A does not require the employer to provide a workplace delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees.
(c) Clause 28A does not require an eligible employee to be represented by a workplace delegate without the employee’s agreement.
NOTE: Under section 350A of the Act, the employer must not:
(a) unreasonably fail or refuse to deal with a workplace delegate; or
(b) knowingly or recklessly make a false or misleading representation to a workplace delegate; or
(c) unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the Act or clause 28A.
29. Consultation about major workplace change
29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
29.2 For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).
29.5 In clause 29 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
29.6 Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.
30. Consultation about changes to rosters or hours of work
30.1 Clause 30 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.
30.3 For the purpose of the consultation, the employer must:
(a) provide to the employees and representatives mentioned in clause 30.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
30.4 The employer must consider any views given under clause 30.3(b).
30.5 Clause 30 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.
[Varied by PR763303, PR777331, PR778070]
31.1 Clause 31 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
31.3 If the dispute is not resolved through discussion as mentioned in clause 31.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
31.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 31.2 and 31.3, a party to the dispute may refer it to the Fair Work Commission.
31.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
31.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
31.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 31.
31.8 While procedures are being followed under clause 31 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
31.9 Clause 31.8 is subject to any applicable work health and safety legislation.
[Note 1 and Note 2 inserted by PR763303; deleted by PR778070 from 26Aug24]
[Note inserted by PR778070 from 26Aug24; varied by PR777331 from 27Aug24]
NOTE: In addition to clause 31, the Act contains dispute resolution procedures as follows:
|
For a dispute about rights under the Act to |
Section |
|
Request flexible working arrangements |
65B |
|
Change casual employment status |
66M |
|
Request an extension to unpaid parental leave |
76B |
|
Exercise an employee’s right to disconnect |
333N |
Part 8—Termination of Employment and Redundancy
NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
32.1 Notice of termination by an employee
(a) Clause 32.1 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.
|
Column 1 Employee’s period of continuous service with the employer at the end of the day the notice is given |
Column 2 Period of notice |
|
Not more than 1 year |
1 week |
|
More than 1 year but not more than 3 years |
2 weeks |
|
More than 3 years but not more than 5 years |
3 weeks |
|
More than 5 years |
4 weeks |
NOTE: The notice of termination required to be given by an employee is the same as that required of an employer except that the employee does not have to give additional notice based on the age of the employee.
(c) In clause 32.1(b) continuous service has the same meaning as in section 117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required under clause 32.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under clause 32.1(b), then no deduction can be made under clause 32.1(d).
(f) Any deduction made under clause 32.1(d) must not be unreasonable in the circumstances.
(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
(b) The time off under clause 32.2 is to be taken at times that are convenient to the employee after consultation with the employer.
NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act.
33.1 Transfer to lower paid duties on redundancy
(a) Clause 33.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.
(b) The employer may:
(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or
(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in clause 33.1(c).
(c) If the employer acts as mentioned in clause 33.1(b)(ii), the employee is entitled to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.
33.2 Employee leaving during redundancy notice period
(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.
(b) The employee is entitled to receive the benefits and payments they would have received under clause 33 or under sections 119 to 123 of the Act had they remained in employment until the expiry of the notice.
(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.
33.3 Job search entitlement
(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.
(b) If an employee is allowed time off without loss of pay of more than one day under clause 33.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.
(c) A statutory declaration is sufficient for the purpose of clause 33.3(b).
(d) An employee who fails to produce proof when required under clause 33.3(b) is not entitled to be paid for the time off.
(e) This entitlement applies instead of clause 32.2.
Schedule A—Summary of Hourly Rates of Pay
[Varied by PR718915, PR729357, PR740783, PR762206, PR773986]
A.1 Full-time and part-time employees
A.1.1 Full-time and part-time employees other than shiftworkers—ordinary and penalty rates
[A.1.1 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
|
|
Ordinary hours |
Saturday |
Sunday |
Public holiday |
|
|
% of minimum hourly rate |
|||
|
|
100% |
150% |
200% |
250% |
|
|
$ |
$ |
$ |
$ |
|
Level 1 |
23.70 |
35.55 |
47.40 |
59.25 |
|
Level 2 |
24.25 |
36.38 |
48.50 |
60.63 |
|
Level 3 |
24.98 |
37.47 |
49.96 |
62.45 |
|
Level 4 |
25.48 |
38.22 |
50.96 |
63.70 |
|
Level 5 |
27.42 |
41.13 |
54.84 |
68.55 |
A.1.2 Full-time and part-time shiftworkers—ordinary and penalty rates
[A.1.2 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
|
|
Day shift |
Afternoon shift |
Night shift |
Permanent night shift |
Saturday |
Sunday |
Public holiday |
|
|
% of minimum hourly rate |
||||||
|
|
100% |
115% |
120% |
125% |
150% |
200% |
250% |
|
|
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
Level 1 |
23.70 |
27.26 |
28.44 |
29.63 |
35.55 |
47.40 |
59.25 |
|
Level 2 |
24.25 |
27.89 |
29.10 |
30.31 |
36.38 |
48.50 |
60.63 |
|
Level 3 |
24.98 |
28.73 |
29.98 |
31.23 |
37.47 |
49.96 |
62.45 |
|
Level 4 |
25.48 |
29.30 |
30.58 |
31.85 |
38.22 |
50.96 |
63.70 |
|
Level 5 |
27.42 |
31.53 |
32.90 |
34.28 |
41.13 |
54.84 |
68.55 |
A.1.3 Full-time and part-time employees—overtime—all employees
[A.1.3 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
|
|
Monday to Sunday |
Public holiday |
|
|
First 2 hours |
After 2 hours |
||
|
|
% of minimum hourly rate |
||
|
|
150% |
200% |
250% |
|
|
$ |
$ |
$ |
|
Level 1 |
35.55 |
47.40 |
59.25 |
|
Level 2 |
36.38 |
48.50 |
60.63 |
|
Level 3 |
37.47 |
49.96 |
62.45 |
|
Level 4 |
38.22 |
50.96 |
63.70 |
|
Level 5 |
41.13 |
54.84 |
68.55 |
A.2 Casual employees
A.2.1 Casual employees other than shiftworkers—ordinary and penalty rates
[A.2.1 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
|
|
Ordinary hours |
Saturday |
Sunday |
Public holiday |
|
|
% of minimum hourly rate |
|||
|
|
125% |
175% |
225% |
275% |
|
|
$ |
$ |
$ |
$ |
|
Level 1 |
29.63 |
41.48 |
53.33 |
65.18 |
|
Level 2 |
30.31 |
42.44 |
54.56 |
66.69 |
|
Level 3 |
31.23 |
43.72 |
56.21 |
68.70 |
|
Level 4 |
31.85 |
44.59 |
57.33 |
70.07 |
|
Level 5 |
34.28 |
47.99 |
61.70 |
75.41 |
A.2.2 Casual shiftworkers—ordinary and penalty rates
[A.2.2 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
|
|
Day shift |
Afternoon shift |
Night shift |
Permanent night shift |
Saturday |
Sunday |
Public holiday |
|
|
% of minimum hourly rate |
||||||
|
|
125% |
140% |
145% |
150% |
175% |
225% |
275% |
|
|
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
Level 1 |
29.63 |
33.18 |
34.37 |
35.55 |
41.48 |
53.33 |
65.18 |
|
Level 2 |
30.31 |
33.95 |
35.16 |
36.38 |
42.44 |
54.56 |
66.69 |
|
Level 3 |
31.23 |
34.97 |
36.22 |
37.47 |
43.72 |
56.21 |
68.70 |
|
Level 4 |
31.85 |
35.67 |
36.95 |
38.22 |
44.59 |
57.33 |
70.07 |
|
Level 5 |
34.28 |
38.39 |
39.76 |
41.13 |
47.99 |
61.70 |
75.41 |
Schedule B—Summary of Monetary Allowances
[Varied by PR718915, PR719067, PR729357, PR729540, PR740783, PR740946, PR750851, PR762206, PR762373, PR773986, PR774155]
See clause 18—Allowances for full details of allowances payable under this award.
B.1 Wage-related allowances:
[B.1.1 varied by PR718915, PR729357, PR740783, PR762206, PR773986 ppc 01Jul24]
B.1.1 The wage-related allowances in this award are based on the standard rate as defined in clause 2—Definitions as the minimum weekly rate for a Level 3 employee in clause 16.1= $949.20.
|
Allowance |
Clause |
% of standard rate |
$ |
Payable |
|
Leading hand allowance—2 to 10 employees |
18.2(a) |
3.99 |
37.87 |
per week |
|
Leading hand allowance—11 to 21 employees |
18.2(a) |
5.97 |
56.67 |
per week |
|
Leading hand allowance—more than 21 employees |
18.2(a) |
8.11 |
76.98 |
per week |
|
Verminous/decomposed human body allowance |
18.2(b) |
11.96 |
113.52 |
per occasion |
|
Work performed in fumigation depot allowance |
18.2(c) |
0.93 |
8.83 |
per day |
|
First aid allowance |
18.2(d)(i) |
2.12 |
20.12 |
per week |
B.1.2 Automatic adjustment of wage-related allowances
[B.1.2 renamed and substituted by PR750851 ppc 15Mar23]
The amount of each wage-related allowance is the percentage of the standard rate specified for the allowance and will automatically adjust to reflect the specified percentage when the standard rate is varied.
B.2 Expense-related allowances
[B.2.1 varied by PR719067, PR729540, PR740946, PR762373, PR774155 ppc 01Jul24]
B.2.1 The following expense-related allowances will be payable to employees in accordance with clause 18.3:
|
Allowance |
Clause |
$ |
Payable |
|
Meal allowance—overtime for more than 2 hours without proper notice |
18.3(a)(i) |
17.73 |
per meal |
|
Motor vehicle allowance |
18.3(b) |
0.98 |
per km |
|
Country work—board and lodging |
18.3(c)(ii) |
121.05 |
per night |
|
Country work—meal allowance |
18.3(c)(iv) |
10.98 |
per meal |
B.2.2 Adjustment of expense-related allowances
(a) At the time of any adjustment to the standard rate, each expense-related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.
(b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:
|
Allowance |
Applicable Consumer Price Index figure |
|
Meal allowance |
Take away and fast foods sub-group |
|
Motor vehicle allowance |
Private motoring sub-group |
|
Country work—Board and lodging |
Holiday travel and accommodation sub-group |
Schedule C—Supported Wage System
[Varied by PR719661, PR729672, PR742256, PR762969, PR774051]
C.1 This schedule 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.
C.2 In this schedule:
approved 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.
assessment instrument means the tool 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.
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.
relevant minimum wage means the minimum wage prescribed in this award for the class of work for which an employee is engaged.
supported wage system (SWS) means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website: www.jobaccess.gov.au.
SWS wage assessment agreement means the document in the form required by the Department of Social Services that records the employee’s productive capacity and agreed wage rate.
C.3 Eligibility criteria
C.3.1 Employees covered by this schedule 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.
C.3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.
C.4 Supported wage rates
C.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:
|
Assessed capacity (clause C.5) % |
Relevant minimum wage % |
|
10 |
10 |
|
20 |
20 |
|
30 |
30 |
|
40 |
40 |
|
50 |
50 |
|
60 |
60 |
|
70 |
70 |
|
80 |
80 |
|
90 |
90 |
[C.4.2 varied by PR719661, PR729672, PR742256, PR762969, PR774051 ppc 01Jul24]
C.4.2 Provided that the minimum amount payable must be not less than $106 per week.
C.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.
C.5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the SWS by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.
C.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.
C.6 Lodgement of SWS wage assessment agreement
C.6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with the Fair Work Commission.
C.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by the Fair Work Commission to the union by certified mail and the agreement will take effect unless an objection is notified to the Fair Work Commission within 10 working days.
C.7 Review of assessment
The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the SWS.
C.8 Other terms and conditions of employment
Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.
C.9 Workplace adjustment
An employer wishing to employ a person under the provisions of this schedule must 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 workers in the area.
C.10 Trial period
C.10.1 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 schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding 4 weeks) may be needed.
C.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.
[C.10.3 varied by PR719661, PR729672, PR742256, PR762969, PR774051 ppc 01Jul24]
C.10.3 The minimum amount payable to the employee during the trial period must be no less than $106 per week.
C.10.4 Work trials should include induction or training as appropriate to the job being trialled.
C.10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause C.5.
Schedule D—Agreement for Time Off Instead of Payment for Overtime
Link to PDF copy of Agreement for Time Off Instead of Payment for Overtime.
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:
Date and time overtime started: ___/___/20___ ____ am/pm
Date and time overtime ended: ___/___/20___ ____ am/pm
Amount of overtime worked: _______ hours and ______ minutes
The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer representative: ________________________________________
Signature of employer representative: ________________________________________
Date signed: ___/___/20___
Schedule E—Agreement to Take Annual Leave in Advance
Link to PDF copy of Agreement to Take Annual Leave in Advance.
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee will take a period of paid annual leave before the employee has accrued an entitlement to the leave:
The amount of leave to be taken in advance is: ____ hours/days
The leave in advance will commence on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer representative: ________________________________________
Signature of employer representative: ________________________________________
Date signed: ___/___/20___
|
[If the employee is under 18 years of age - include:] I agree that: if, on termination of the employee’s employment, the employee has not accrued an entitlement to all of a period of paid annual leave already taken under this agreement, then the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued. Name of parent/guardian: ________________________________________ Signature of parent/guardian: ________________________________________ Date signed: ___/___/20___ |
Schedule F—Agreement to Cash Out Annual Leave
Link to PDF copy of Agreement to Cash Out Annual Leave.
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree to the employee cashing out a particular amount of the employee’s accrued paid annual leave:
The amount of leave to be cashed out is: ____ hours/days
The payment to be made to the employee for the leave is: $_______ subject to deduction of income tax/after deduction of income tax (strike out where not applicable)
The payment will be made to the employee on: ___/___/20___
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer representative: ________________________________________
Signature of employer representative: ________________________________________
Date signed: ___/___/20___
|
Include if the employee is under 18 years of age:
Name of parent/guardian: ________________________________________ Signature of parent/guardian: ________________________________________ Date signed: ___/___/20___ |
[Schedule G—Part-day Public Holidays deleted by PR747417 ppc 14Nov22]
[Schedule X—Additional Measures During the COVID-19 Pandemic varied by PR720705, PR723048, PR728080, PR736911; deleted by PR746868 ppc 17Oct22]
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