|FAIR WORK COMMISSION|
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Casual employment and Part-time employment
(AM2014/196 and AM2014/197)
HOSPITALITY INDUSTRY (GENERAL) AWARD 2010
|VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT KOVACIC
DEPUTY PRESIDENT BULL
SYDNEY, 12 DECEMBER 2017
4 yearly review of modern awards – Part-time employment and Casual employment – Hospitality Industry (General) Award 2010.
A. Further to the decision issued on 5 July 2017 in AM2014/196 and AM2014/197 ( FWCFB 3541), it is determined pursuant to section 156(2)(b)(i) of the Fair Work Act 2009 that the Hospitality Industry (General) Award 2010 be varied as follows:
1. By deleting clause 12 and inserting the following:
12. Part-time employment
12.1 An employer may employ part-time employees in any classification in this award.
12.2 A part-time employee is an employee who is employed in a classification in Schedule D—Classification Definitions and who:
(a) is engaged to work at least 8 and less than 38 ordinary hours per week or, where the employer operates a roster, an average of at least 8 and fewer than 38 hours per week over the roster cycle;
(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.
12.3 At the time of engagement the employer and the part-time employee will agree in writing upon:
(a) the number of hours of work which is guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which is guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed hours); and
(b) the days of the week, and the periods in each of those days, when the employee will available to work the guaranteed hours (the employee’s availability).
12.4 Any change to the guaranteed hours may only occur with the written consent of the part-time employee.
12.5 The employer may roster the working of the employee’s guaranteed hours and any additional hours in accordance with clause 29.2—Part-time employees and clause 30—Rostering, provided that:
(a) the employee may not be rostered for work for any hours outside the employee’s availability; and
(b) the employee must have two days off each week.
12.6 Where a part-time employee has over a period of at least 12 months regularly worked a number of ordinary hours that is in excess of the guaranteed hours, the employee may request in writing that the employer agree to increase the guaranteed hours. If the employer agrees to the request, the new agreement concerning guaranteed hours will be recorded in writing. The employer may refuse the request only upon reasonable business grounds, and such refusal must be provided to the employee in writing and specify the grounds for refusal.
12.7 Where there has been a genuine and ongoing change in the employee’s personal circumstances, the employee may alter the days and hours of the employee’s availability on 14 days’ written notice to the employer. If the alteration to the employee’s availability cannot reasonably be accommodated by the employer within the guaranteed hours then, despite clause 12.4, those guaranteed hours will no longer apply and the employer and the employee will need to reach a new agreement in writing concerning guaranteed hours in accordance with clause 12.3(a).
12.8 All time worked in excess of:
(a) 38 hours per week or, where the employee works in accordance with a roster, an average of 38 hours per week over the roster cycle; or
(b) the maximum hours limitations specified in clause 29.2; or
(c) the employee’s rostered hours;
will be overtime and paid for at the rates prescribed in clause 33.3—Overtime rates.
12.9 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13.
12.10 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
12.11 A part-time employee who immediately prior to 1 January 2018 has a written agreement with their employer for a regular pattern of hours is entitled to continue to be rostered in accordance with that agreement, unless that agreement is replaced by a new written agreement made in accordance with clause 12.3.
2. By deleting clause 13.2 and inserting the following:
13.2 A casual employee may be engaged to work:
(a) for a maximum of 12 hours per day or per shift;
(b) for a maximum of 38 hours per week or, where the casual employee works in accordance with a roster, an average of 38 hours per week over the roster cycle (which may not exceed 4 weeks).
3. By renumbering clauses 13.3 and 13.4 as 13.5 and 13.6 respectively.
4. By inserting a new clause 13.3 as follows:
13.3 On each occasion a casual employee is required to attend work they are entitled to a minimum payment for two hours’ work.
5. By inserting a new clause 13.4 as follows:
13.4 All time worked in excess of the hours prescribed in clause 13.2 will be overtime and paid for at the rates prescribed in clause 33.3—Overtime rates.
6. By deleting the first sentence of clause 29.2 and inserting the following:
A part-time employee’s rostered hours of work under clause 12.5 must meet the following conditions:
7. By deleting clause 33.1(a) and inserting the following:
(a) Subject to clause 33.1(b) an employer may require an employee to work reasonable overtime at overtime rates.
8. By deleting clause 33.2(b) and inserting the following:
(b) A part-time employee is paid at overtime rates in the circumstances specified in clause 12.8.
9. By inserting a new clause 33.2(c) as follows:
(c) A casual employee is paid at overtime rates in the circumstances specified in clause 13.4.
10. By deleting clauses 33.3(a) and (b) and inserting the following:
(a) The following overtime rates are payable to an employee, depending on the time at which the overtime is worked:
(i) Monday to Friday: 150% of their ordinary hourly rate for the first two hours of overtime; and 200% of their ordinary hourly rate for the rest of the overtime.
(ii) Between midnight Friday and midnight Sunday: 200% of their ordinary hourly rate.
(b) When a full-time or part-time employee works overtime on a rostered day off the following apply:
(i) Subject to clause 33.3(b)(ii), the employee shall be paid 200% of their ordinary hourly rate for at least four hours even if they work for less than four hours.
(ii) The four hour minimum payment does not apply to work which is part of the normal roster which began the day before the rostered day off or when overtime worked is continuous from the previous day’s duty.
11. By deleting clause 37.1(c) and inserting the following:
(c) Arrangements for part-time employees
Part-time employees are entitled to public holidays prescribed in s.115 of the Act without loss of pay if those public holidays fall on days on which hours of work are rostered under clause 12.5. Part-time employees who work on a public holiday must be paid in accordance with clause 32.
B. This determination comes into force on and from 1 January 2018. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period that starts on or after 1 January 2018.
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