DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards
(AM2019/17)

MOBILE CRANE HIRING AWARD 2010
[MA000032]

4 yearly review of modern awards – Mobile Crane Hiring Award 2010 – modern award varied and renamed.

A. Further to the decision [[2020] FWCFB 6040] issued by the Full Bench of the Fair Work Commission on 4 December 2020, the Mobile Crane Hiring Award 2010 is varied as follows:

1. By deleting all clauses, schedules and appendices.

2. By inserting the clauses and schedules attached.

B. This determination comes into operation on 1 March 2021. In accordance with s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a particular employee until the start of the employee's first full pay period that starts on or after 1 March 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mobile Crane Hiring Award 2020

Table of Contents

Part 1— Application and Operation of this Award 3
1. Title and commencement 3
2. Definitions 3
3. The National Employment Standards and this award 4
4. Coverage 5
5. Individual flexibility arrangements 6
6. Requests for flexible working arrangements 7
7. Facilitative provisions 9
Part 2— Types of Employment and Classifications 9
8. Types of employment 9
9. Casual employees 10
10. Loss of validation of licences/certificates 11
11. Classifications 11
Part 3— Hours of Work 12
12. Ordinary hours of work 12
13. Rostering arrangements 12
14. Make-up time 13
15. Breaks 13
Part 4— Wages and Allowances 14
16. Minimum rates 14
17. Payment of wages 15
18. Allowances 17
19. Accident pay 19
20. Inclement weather 22
21. Superannuation 23
Part 5— Overtime and Shiftwork Penalty Rates 24
22. Overtime 24
23. Shiftwork 27
Part 6— Leave and Public Holidays 28
24. Annual leave 28
25. Personal/carer’s leave and compassionate leave 33
26. Parental leave and related entitlements 33
27. Community service leave 33
28. Unpaid family and domestic violence leave 34
29. Public holidays 34
Part 7— Consultation and Dispute Resolution 35
30. Consultation about major workplace change 35
31. Consultation about changes to rosters or hours of work 36
32. Dispute resolution 36
Part 8— Termination of Employment and Redundancy 37
33. Termination of employment 37
34. Industry specific redundancy scheme 38
Schedule A —Classification Structure 41
Schedule B —Summary of Hourly Rates of Pay 45
Schedule C —Summary of Monetary Allowances 49
Schedule D —Supported Wage System 51
Schedule E —National Training Wage 54
Schedule F —Agreement to Take Annual Leave in Advance 63
Schedule G —Agreement to Cash Out Annual Leave 64
Schedule H —Agreement for Time Off Instead of Payment for Overtime 65
Schedule I —Part-day Public Holidays 66
Schedule X —Additional Measures During the COVID-19 Pandemic 67

Part 1—Application and Operation of this Award

1. Title and commencement

1.1 This award is the Mobile Crane Hiring 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.

2. Definitions

In this award, unless the contrary intention appears:

accident pay has the meaning given in clause 19.3(a).
Act means the Fair Work Act 2009 (Cth).
all purposes means the payment will be included in the rate of pay of an employee who is entitled to the allowance, when calculating any penalties or loadings or payment while they are on annual leave.
crane crew means workers with the qualifications and flexibility to perform the duties of crane operators and dogger/riggers on an interchangeable basis, provided that the crane operator will be regarded as the employee in charge of the crane crew.
defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth).
dogger means a worker who carries out the work of slinging loads and who controls the movement of such loads when handled by lifting appliances. It is also the dogger’s responsibility to control loads when out of view of the crane operator. A dogger must hold the current certificates issued in accordance with statutory requirements.
employee means national system employee within the meaning of the Act.
employer means national system employer within the meaning of the Act.
exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).
injury has the meaning given in clause 19.3(b).
MCE means mobile crane employees in the mobile crane hiring industry.
mobile crane means a crane having its own propulsion which includes tractor and crawler cranes.
mobile crane hire industry has the meaning given in clause 4.2.
mobile crane operator means the operator who is the link between the operation of the mobile crane and its motive power and who controls the apparatus inside the crane’s cabin to regulate its movements i.e. ‘luffing’ (raising or lowering the jib or boom), ‘slewing’ (turning the crane on its axis) and/or ‘hoisting’ (raising or lowering) the hook. A crane operator must hold the current certificates in accordance with statutory requirements.
mobile elevated work platform means a vehicle mounted unit with a telescoping device, hinged device, or articulated device or any combination of these used to support a platform on which personnel, equipment, or materials may be elevated to perform work.
mobile elevating work platform operator means an employee required to perform, alone or as part of a crew, tasks including:
• driving/relocating the platform between work locations;
• setting up the platform;
• operating the platform in a safe and efficient manner; and
• holding the current certificates in accordance with statutory requirements.
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.
ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16.1, plus the industry allowance.
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.
rigger means a worker who in addition to the work of a dogger, is directly in charge of the initial work of setting up the crane and who ensures that all rigging work is carried out in a safe and efficient manner in accordance with statutory requirements. A rigger must hold the current certificates in accordance with statutory requirements.
standard rate means the minimum hourly rate for a mobile crane employee (MCE) level 1 in clause 16.1.

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. Coverage

4.1 This industry award covers employers throughout Australia engaged in the mobile crane hire industry and their employees in the classifications within Schedule A—Classification Structure to the exclusion of any other modern award.

4.2 Mobile crane hire industry means the service industry involving the hiring of mobile cranes, mobile elevated work platforms and like equipment and operating personnel to clients whose requirements include but are not limited to the provision and service of materials handling equipment, lifting and machinery movement equipment, earthmoving and construction plant hire and civil contracting, plant and mobile units for quarrying and mining projects, dig load and haul projects. Hiring can be on an hour by hour, day by day, or contract basis depending on the nature of the task.

4.3 This award does not cover:

(a) clerical and administrative occupations; or

(b) an employer bound by:

(i) the Manufacturing and Associated Industries and Occupations Award 2020; or

(ii) the Building and Construction General On-site Award 2020.

4.4 This award covers any employer which supplies labour on an on-hire basis in the mobile crane hire 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 mobile crane hire 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 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.

(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

(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

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

(b) by the employer or employee giving 13 weeks’ written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

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

6.1 Employee may request change in working arrangements

Clause 6 applies where an employee has made a request for a change in working arrangements under section 65 of the Act.
NOTE 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in section 65(1A). Clause 6 supplements or deals with matters incidental to the NES provisions.
NOTE 2: An employer may only refuse a section 65 request for a change in working arrangements on ‘reasonable business grounds’ (see section 65(5) and (5A)).
NOTE 3: Clause 6 is an addition to section 65.

6.2 Responding to the request

Before responding to a request made under section 65, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

(a) the needs of the employee arising from their circumstances;

(b) the consequences for the employee if changes in working arrangements are not made; and

(c) any reasonable business grounds for refusing the request.

NOTE 1: The employer must give the employee a written response to an employee’s section 65 request within 21 days, stating whether the employer grants or refuses the request (section 65(4)).
NOTE 2: If the employer refuses the request, then the written response must include details of the reasons for the refusal (section 65(6)).

6.3 What the written response must include if the employer refuses the request

(a) Clause 6.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause 6.2.

(b) The written response under section 65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.

(c) If the employer and employee could not agree on a change in working arrangements under clause 6.2, then the written response under section 65(4) must:

(i) state whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and

(ii) if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

6.4 What the written response must include if a different change in working arrangements is agreed

If the employer and the employee reached an agreement under clause 6.2 on a change in working arrangements that differs from that initially requested by the employee, then the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

6.5 Dispute resolution

Disputes about whether the employer has discussed the request with the employee and responded to the request in the way required by clause 6, can be dealt with under clause 32—Dispute resolution.

7. Facilitative provisions

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:

Part 2—Types of Employment and Classifications

8. Types of employment

8.1 Employees under this award will be employed in one of the following categories:

(a) full-time weekly hire employees; or

(b) casual employees.

8.2 At the time of engagement an employer will inform each employee of the terms of their engagement and, in particular, whether they are to be a full-time weekly hire or casual employee.

9. Casual employees

9.1 A casual employee is engaged and paid in accordance with the provisions of clause 9.

9.2 A casual employee will be entitled to all of the applicable rates and conditions of employment prescribed by this award except annual leave, paid personal leave, paid parental leave, paid community service leave, public holidays, notice of termination and redundancy.

9.3 An employer when engaging a person for casual employment must inform the employee in writing that the employee is to be employed as a casual, stating:

(a) by whom the employee is employed;

(b) the job to be performed;

(c) the classification level;

(d) the actual or likely number of hours to be worked; and

(e) the relevant rate of pay.

9.4 In addition to the rate appropriate for the type of work, a casual employee must be paid a 25% loading of the ordinary hourly rate.

9.5 A casual employee required to work overtime, or on a Saturday, or on a Sunday, or on a public holiday, will be entitled to the relevant penalty rates prescribed by clause 22—Overtime, in addition to the 25% casual loading as follows:

9.6 Casual employees will be engaged for a minimum period of 4 hours per day.

9.7 Casual conversion to full-time employment

(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time weekly hire employment if the employment is to continue beyond the conversion process.

(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 9.7(a) within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 9.7(a) if the employer fails to comply with clause 9.7.

(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time weekly hire employment is deemed to have elected against any such conversion.

(d) Any casual employee who has a right to elect under clause 9.7(a), on receiving notice under clause 9.7(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time weekly hire employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.

(e) Once a casual employee has elected to become and been converted to full-time weekly hire employment, the employee may only revert to casual employment by written agreement with the employer.

(f) Where, in accordance with clause 9.7(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.

(g) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 9.7(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 9.7(a).

(h) For the purposes of clause 9.7(a), an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.

(i) An employee must not be engaged and re-engaged to avoid any obligation under this award.

10. Loss of validation of licences/certificates

10.1 An employee will notify the employer in the event of cancellation or suspension of licences and/or certificates required in the performance of their duties.

10.2 Should either a licence or certificate held by an employee be cancelled or suspended and the employee has notified the employer in accordance with clause 10.1, all possible alternate employment options will be examined and where practicable provided by the employer.

11. Classifications

A description of the classifications under this award is set out in Schedule A—Classification Structure.

Part 3—Hours of Work

12. Ordinary hours of work

12.1 The ordinary hours of work will be 38 per week, Monday to Friday, worked continuously at the discretion of the employer, between 6.00 am and 6.00 pm, except for meal breaks, arranged in accordance with clause 15—Breaks.

12.2 The method of working the 38 hour week may be any one of the following:

(a) by employees working less than 8 ordinary hours each day; or

(b) by employees working less than 8 ordinary hours on one or more days each week; or

(c) by fixing one week day on which all employees will be off during a particular work cycle; or

(d) by rostering employees off on various days of the week during a particular work cycle so that each employee has one week day off during that cycle.

12.3 A regular starting and finishing time will be fixed at each depot, which will not be changed, except after notice of at least a week.

12.4 An employee/s starting time for a particular day may be altered to suit the business requirements of the employer by mutual agreement with the employee/s concerned.

12.5 The ordinary hours of work prescribed will not exceed 10 hours on any day provided that any arrangement of ordinary working hours in excess of 8 hours in any one day will be with the agreement of the majority of employees involved.

12.6 An assessment should be made as to which method of implementation best suits the business and the proposal will be discussed with the employees concerned.

12.7 Circumstances may arise where different methods of implementation of a 38 hour week apply to various groups or sections of employees in the establishment concerned.

13. Rostering arrangements

13.1 Where the hours of work are arranged in accordance with clause 12.2(c) and 12.2(d) the ordinary working hours will be worked in a 20 day cycle, Monday to Friday inclusive, with 8 hours worked for each of 19 days and with 0.4 of an hour on each of those days accruing toward the 20th day which will be taken as a paid day off and known as a rostered day off.

13.2 An employee will be entitled to 13 rostered days off per year provided that the number of rostered days off will be reduced to the extent of any annual leave taken on the basis of one day for each 4 weeks of annual leave taken.

13.3 By mutual agreement between the employer and employee, rostered days off may be accumulated to a maximum of 5 days over a 20 week period. Accumulated rostered days off must be taken no later than the 14 day period commencing at the time of the fifth accumulated rostered day off of the 20 week cycle.

13.4 Where an employer and a majority of employees at an enterprise agree, another day may be substituted for the nominated industry rostered day off.

13.5 Where a majority of the employees request that their representative is to be consulted, consultation will take place at least 5 days prior to the alternate rostered day off being implemented.

13.6 An employee who agrees to work on the rostered day off to satisfy the employer’s business requirements will take an alternative rostered day off on a mutually convenient day prior to the next rostered day off. Where agreement cannot be reached it will be taken in conjunction with the next rostered day off.

13.7 Except in the case of an emergency circumstance no employee will be required to work on a rostered day off. Where an emergency circumstance does occur the employee will be paid an additional day’s pay at ordinary rates for that week (that is 45 hours and 36 minutes pay for that week at the ordinary rate instead of 38 hours’ pay) in addition to being given a substitute rostered day off. An emergency will mean where less than 24 hours’ notice of the requirement to work on the rostered day off has been given.

13.8 In the case of termination an employee who has not worked a completed 19 day 4 week cycle will receive pro rata accrued entitlements for each day worked in such cycle.

14. Make-up time

14.1 Subject to a majority of employees at a workplace agreeing to introduce this provision an employee, other than an employee on shiftwork, may elect, with the consent of the employer, to work make-up time, under which the employee takes time off ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award.

14.2 Subject to a majority of employees at a workplace agreeing to introduce this provision an employee on shiftwork may elect, with the consent of their employer, to work make-up time under which the employee takes time off ordinary hours and works those hours at a later time, at the shiftwork rate which would have been applicable to the hours taken off.

15. Breaks

15.1 Meal break

(a) A set meal break will be established in each depot by mutual agreement between the employer and employees which may be altered by the employer by giving one week’s notice.

(b) An employee will cease work for a meal break of 30 minutes on all working days, except Saturday and Sunday, between the hours of 11.30 am and 1.00 pm, inclusive.

(c) An employee may be required to change the meal break to suit the requirements of the employer or client.

(d) An employee who has not completed their meal break after 6 hours from the normal starting time on any day to suit the requirements of the employer or the client will be paid at the overtime rates prescribed in clause 22—Overtime for the period from 6 hours after normal starting time until a meal break is allowed.

15.2 Meal break during overtime

(a) If the period of overtime is more than 1.5 hours after working ordinary hours an employee, before starting such overtime, will be allowed a meal break of 20 minutes, which will be paid for at their ordinary hourly rate.

(b) If agreement is reached between the employer and employee for variation of this provision to meet the circumstances of work in hand, then the employer will not be required to make payment in excess of 20 minutes.

(c) An employee working overtime will be allowed a meal break of 20 minutes for each 4 hours of overtime worked provided that the employee continues to work after the meal break.

(d) An employee required to work overtime for more than 1.5 hours after working ordinary hours will either be supplied meals by the employer, or be paid $15.71 for the first and subsequent meals.

(e) An employee required to start work 2 or more hours prior to the normal commencement time will be paid $15.71 meal allowance and be allowed a 20 minute meal break as soon as is practicable.

(f) This allowance will be payable in any event where an employee is required to start work at or prior to 5.00 am.

(g) Where an employee is required to work overtime on a Saturday or Sunday the first prescribed meal break will be between 10.00 am and 1.00 pm and be paid at ordinary rates.

Part 4—Wages and Allowances

16. Minimum rates

16.1 An employer must pay employees the following minimum rates for ordinary hours worked by the employee and the industry allowance set out in clause 16.2 for each classification level as described in Schedule A—Classification Structure.

NOTE: See Schedule B—Summary of Hourly Rates of Pay for a summary of hourly rates of pay, including overtime and penalty rates.

16.2 All employees will be paid an all-purpose industry allowance of $50.01 per week in addition to the minimum classification rates set out in clause 16.1.

16.3 Higher duties

Where an employee on any day performs work in a classification attracting a higher rate of pay then the higher rate of pay will apply for the whole day.

16.4 Supported wage system

For employees who because of the effects of a disability are eligible for a supported wage, see Schedule D—Supported Wage System.

16.5 National training wage

For employees undertaking a traineeship, see Schedule E—National Training Wage.

17. Payment of wages

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 Methods of payment

Wages will be paid in cash, cheque or direct transfer into the employee’s bank (or other recognised financial institution) account either weekly or fortnightly.

17.2 Wages to be paid during working hours

(a) Where an employee is paid wages by cash or cheque such wages are to be paid during ordinary working hours.

(b) If an employee is paid wages by cash and is kept waiting for their wages on pay day, after the usual time for finishing work, the employee is to be paid at overtime rates for the period they are kept waiting.

17.3 Payment by cheque

In the case of an employee paid by cheque, if the employee requires it, the employer is to have a facility available during ordinary hours for the employee to cash their cheque.

17.4 Day off coinciding with pay day

(a) In the event that an employee, by virtue of the arrangement of ordinary working hours, is to take a day off on a day which coincides with pay day, the employee will be paid no later than the working day immediately following pay day.

(2) Where the employer is able to make suitable arrangements, wages may be paid on the working day preceding pay day.

17.5 Casual employees

Where a casual employee is engaged for a work period which includes the designated pay day, wages will be paid in accordance with such arrangements. This will not affect the employee’s status as a casual. If a casual is engaged on a daily basis, then the payment will be made on a daily basis unless otherwise mutually agreed.

17.6 Payment on termination of employment

(a) If the employment of an employee terminates, the employer must pay the employee the following amounts in accordance with clause 17.6:

(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 amounts described at clause 17.6(a)(i) must be paid to the employee:

(i) on the day of termination; or

(ii) forwarded by electronic transfer or post on the next working day.

(c) The amounts described at clause 17.6(a)(ii) must be paid to the employee:

(i) on the day of termination; or

(ii) forwarded by electronic funds transfer by no later than 7 days after the day on which the employee’s employment terminates.

(d) The requirement to pay wages and other amounts under clause 17.6(a) is subject to 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: 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.

18. Allowances

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 C—Summary of Monetary Allowances for a summary of monetary allowances and method of adjustment.

18.2 Wage-related allowances

(a) All-purpose allowances
Allowances paid for all purpose are included in the rate of pay of an employee who is entitled to the allowance when calculating any penalties or loadings or payments while they are on annual leave. The industry allowance in clause 16.2 is paid for all purposes under this award.
(b) Multi crane lift allowance
Where more than one crane is engaged on any single lift the following additional payments will be made to the drivers:

(c) Pile driving allowance
An employee performing pile driving or extraction will receive $18.03 per day or part thereof.

18.3 Expense-related allowances

(a) Protective clothing and equipment

(i) Where an employee is required to work in a place where in the absence of protective clothing or footwear, the employees’ clothing or footwear will become wet, the employee will provide waterproof clothing, safety helmet and footwear, as necessary, and be reimbursed by the employer for the cost of the clothing and protective equipment. Alternatively, the employer may provide the clothing and protective equipment.

(ii) The purchase of safety footwear will be subsidised by the employer and will be replaced when required due to wear, loss or damage. On each occasion that an employee obtains safety footwear, the employer will subsidise the cost of such footwear to an amount of $67.74.

(iii) The employee will purchase the approved type safety footwear and will present the receipt in order to obtain the subsidy.

(iv) All employees will be eligible for the subsidy after one month qualifying service with the employer.

(v) The purchase of a Tasmanian Bluey Jacket will be subsidised by the employer and will be replaced when required due to wear, loss or damage. On each occasion the employer will subsidise the cost of such jacket to an amount of $67.74.

(b) Damage to clothing
After one month’s service with the employer, compensation to the extent of any damage sustained to personal clothing will be made where, during the course of the work, clothing is damaged.
(c) Fares and travel allowance

(i) $17.43 per day will be paid to compensate for travel patterns and costs peculiar to the nature of employment in the mobile crane hiring industry i.e. paid only once per day.

(ii) This allowance will be payable for every day upon which an employee works or reports for work in accordance with the employer’s requirements but will not be taken into account in calculating overtime, penalty rates, annual leave, sick leave or rostered days off.

(iii) An employee directed to a work site where there is no reasonable means of transport available on cessation of work will be reimbursed the cost of, or be supplied with, transport by the employer to return to the depot or point where work was commenced.

(iv) Clause 18.3(c)(iii) will apply only on the first day of engagement on any work site.

(d) Car allowance

(i) An employee directed by an employer to use a private vehicle during working time will be paid $0.78 per kilometre measured to and from respective sites, in addition to payment for the time travelling at the appropriate ordinary time or overtime rate.

(ii) The time spent travelling from home to the initial work site and travelling from the final work site to home on any day will not be paid unless the employee travels beyond a radius of 50 kilometres from the employer’s depot.

(iii) An employee travelling beyond the 50 kilometre radius on any day will be paid travelling time at the appropriate rate for the time taken travelling to and from the site to the 50 kilometre radius line.

(e) Accommodation and overnight allowance

(i) Where an employee is required by the employer to be away from home overnight the employer will:

(A) pay the employee the greater of $73.47 per day or an amount which fully reimburses the employee for all reasonable accommodation and meal expenses incurred; or

(B) provide the worker with accommodation and 3 adequate meals each day; or

(C) provide the worker with accommodation and reimburse the employee for all reasonable meal expenses; or

(D) where employees are required to live in camp, provide all board and accommodation free of charge.

(ii) Any accommodation provided under clause 18.3(e)(i) must be in accordance with contemporary living standards taking into account the particular circumstances of the location in which the work is performed and must include reasonable washing, laundry, recreational, kitchen, external lighting, communications and fire protection facilities.

(f) Meal allowance
An employee will be paid a meal allowance in accordance with clauses 15.2(d), 15.2(e) and 15.2(f).

19. Accident pay

19.1 Clause 19 commences on 15 October 2015.

19.2 The employer must pay an employee accident pay.

19.3 Definitions

(a) Accident pay means a weekly payment made to an employee by the employer that is the difference between the amount of workers’ compensation received by the employee and the employee’s minimum weekly rate (including industry allowance) prescribed by clauses 16.1 and 16.2. Where the incapacity caused by the injury which leads to workers’ compensation becoming payable is for a period less than one week, the payment is the difference between the amount of compensation and the employee’s minimum weekly rate (including industry allowance) for that period. The minimum weekly rate does not include:

(i) over-award payments;

(ii) shift loadings;

(iii) overtime;

(iv) attendance payments;

(v) bonus payments;

(vi) fares and travelling allowance;

(vii) site allowance; or

(viii) other such rates.

(b) Injury, for the purposes of clause 19, has the same meaning as that contained in the applicable workers’ compensation legislation covering the employer in respect of a claim made by the employee.

19.4 Subject to the relevant workers’ compensation claim being accepted, accident pay is payable from the time of the injury for which workers’ compensation is paid for a total of 52 weeks in respect to the employee’s incapacity from that injury, regardless of whether the incapacity is in one continuous period or not.

19.5 The termination of the employee’s employment whilst the employee is receiving accident pay will not affect the liability of the employer to pay accident pay in accordance with clause 19.4. Such payment shall continue to apply except where the termination is due to serious and/or wilful misconduct. To qualify for the continuation of accident pay on termination, an employee shall if required provide evidence to the employer of the continuation of weekly compensation payments.

19.6 Where an employee receives a lump sum payment in lieu of weekly payments under the applicable workers’ compensation legislation, the liability of the employer to pay accident pay will cease from the date of receipt of the lump sum by the employee.

19.7 If an employer has a scheme for the payment of accident pay that contains provisions generally not less favourable to employees than the provisions of clause 19, the employer may apply to the Fair Work Commission for that scheme to apply instead of clause 19.

19.8 For a casual employee the weekly payment as defined in clause 19.3 will be calculated using the employee’s average weekly ordinary hours with the employer over the previous 12 months or, if the employee has been employed for less than 12 months by the employer, the employee’s average weekly ordinary hours over the period of employment with the employer. The weekly payment will include casual loading but will not include over award payments, shift loadings, overtime, attendance payments, bonus payments, fares and travelling allowance, site allowance, or other such rates.

19.9 Accident pay will not apply in respect of any injury during the first 5 ordinary working days of incapacity.

19.10 Accident pay will not apply to any incapacity occurring during the first 3 weeks of employment unless such incapacity extends beyond the first 3 weeks. In this situation accident pay will apply only to the period of incapacity after the first 3 weeks. Provided that industrial diseases contracted by gradual process or injuries subject to recurrence, aggravation or acceleration will not be subject to accident pay unless the employee has been employed at the time of the incapacity for a minimum period of one month.

19.11 An employee on engagement may be required to declare all workers’ compensation claims made in the previous 5 years and in the event of false or inaccurate information being deliberately and knowingly declared the employer may require the employee to forfeit the entitlement to accident pay provided by clause 19.

19.12 If an employee entitled to accident pay under clause 19 returns to work on reduced hours or modified duties, the amount of accident pay due will be reduced by any amounts paid for the performance of such work.

19.13 For the avoidance of doubt, an employee will not be entitled to any payment under clause 19 in respect of any period of workers’ compensation where the statutory payment for the period exceeds the amount the employee would have received for working ordinary time hours for the same period.

19.14 An employee shall not be entitled to accident pay in respect of any period of other paid leave.

19.15 An employee upon receiving an injury for which the employee claims to be entitled to receive accident pay shall give notice in writing of the said injury to the employer as soon as reasonably practicable after the occurrence; provided that such notice may be given by a representative of the employee.

19.16 In order to receive accident pay, an employee shall conform to the requirements of the applicable workers’ compensation legislation as to medical examination. Where, in accordance with the applicable workers’ compensation legislation, a medical referee gives a certificate as to the condition of the employee and the employee’s fitness for work, or specifies work for which the employee is fit, and such work is made available by the employer and refused by the employee or the employee fails to commence the work, accident pay shall cease from the date of such refusal or failure to commence the work.

19.17 Civil damages claim

(a) An employee receiving or who has received accident pay shall advise the employer of any action the employee may institute or any claim the employee may make for damages. Further, the employee shall, if requested, provided an authority to the employer entitling the employer to a charge upon any money payable pursuant to any verdict of settlement on that injury.

(b) Where an employee obtains a verdict for damages in respect of an injury for which the employee has received accident pay the employer's liability to pay accident pay shall cease from the date of such verdict; provided that if the verdict for damages is not reduced either in whole or part by the amount of accident pay made by the employer, the employee shall pay to the employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

(c) Where an employee obtains a verdict for damages against a person other than the employer in respect of an injury for which the employee has received accident pay the employer's liability to pay accident pay shall cease from the date of such verdict; provided that if the verdict for damages is not reduced either in whole or part by the amount of accident pay made by the employer, the employee shall pay to the employer any amount of accident pay already received in respect of that injury by which the verdict has not been so reduced.

19.18 Nothing in this award shall require an employer to insure against liability for accident pay.

19.19 Any changes in compensation rates under the applicable workers’ compensation legislation shall not increase the amount of accident pay above the amount that would have been payable had the rates of compensation remained unchanged.

19.20 All rights to accident pay shall cease on the death of an employee.

19.21 In the event of any dispute arising as to the entitlement of an employee to payment of accident pay, the matter shall be dealt with by clause 32—Dispute resolution.

20. Inclement weather

20.1 Employees will not be entitled to payment for time lost due to inclement weather unless work has ceased by agreement with the employer provided that employees will not be required to work in unsafe conditions.

20.2 Subject to clause 20.1, employees unable to work at a site due to inclement weather may be required to:

(a) remain on site; or

(b) transfer the crane to an alternative site; or

(c) return to the depot;

until such inclement weather ceases or abates to allow safe work to continue.

20.3 Where cranes are left on site for 5 working days or more and employees are deemed to be part of the site, the procedures on the site will apply. A crane will not be removed from a site if it is unsafe to do so as a result of weather conditions.

20.4 Definitions

(a) Inclement weather means the existence of abnormal climatic conditions (i.e. rain, hail, snow, high winds, cold, extreme high temperature of the like or any combination thereof) which mean it is not reasonable or safe to continue working whilst these conditions remain

(b) Employer means owner, manager or recognised agent of the owner or manager of the company

(c) Site procedures relate only to this inclement weather clause

21. Superannuation

21.1 Superannuation legislation

(a) 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), deals with the superannuation rights and obligations of employers and employees. Under superannuation legislation individual employees generally have the opportunity to choose their own superannuation fund. If an employee does not choose a superannuation fund, the superannuation fund nominated in the award covering the employee applies.

(b) The rights and obligations in these clauses supplement those in superannuation legislation.

21.2 Employer contributions

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.

21.3 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 21.2.

(b) An employee may adjust the amount the employee has authorised their employer to pay from the wages of the employee from the first of the month following the giving of three months’ written notice to their employer.

(c) The employer must pay the amount authorised under clauses 21.3(a) or 21.3(b) no later than 28 days after the end of the month in which the deduction authorised under clauses 21.3(a) or 21.3(b) was made.

21.4 Superannuation fund

Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 21.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or 21.3(b) to one of the following superannuation funds or its successor:

(a) Construction and Building Industry Super (Cbus);

(b) 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

(c) a superannuation fund or scheme which the employee is a defined benefit member of.

Part 5—Overtime and Shiftwork Penalty Rates

22. Overtime

22.1 An employee may be required to work reasonable overtime. Overtime need not be limited to one job only.

22.2 An employee may be notified to work overtime prior to leaving the employer’s premises or where the employee agrees, after having left the employer’s premises.

22.3 All time worked outside the ordinary hours of work will be overtime and paid at:

22.4 A casual employee must be paid in accordance with the overtime penalty rates prescribed by clause 9.5.

22.5 An employee will be paid a minimum of 4 hours at the appropriate penalty rates for working overtime on a Saturday, Sunday or public holiday.

22.6 An employee travelling between the depot and nominated work site outside of ordinary hours will be paid at the appropriate overtime rates for the period of such travel.

22.7 An employee travelling to and/or from home to start/finish overtime when reasonable means of transport are not available will either be provided with transport to and/or from home or paid ordinary rates for the time taken for such travel.

22.8 10 hour break

(a) When overtime work is necessary, it will, wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive days or shifts. An employee who works so much overtime:

(i) between the finish of ordinary work on any day or shift and the commencement of ordinary work on the next day or shift, that the employee has not had at least 10 consecutive hours off duty between these times; or

(ii) on Saturdays, Sundays and holidays, not being ordinary working days, or on a rostered day off, without having had 10 consecutive hours off duty in the 24 hours preceding the employee’s ordinary commencing time on the next ordinary day or shift

will, subject to clause 22.8(a), be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

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

22.9 Call back

(a) An employee recalled to work after leaving the employer’s premises will be paid a minimum of 4 hours at the appropriate penalty rates. The employee will not be required to work the full 4 hours if the job the employee was recalled to perform is completed within a shorter period.

(b) An employee directed to be on standby either at home, place of work or elsewhere, to work prior to or after ordinary hours, or on a Saturday, or on a Sunday or public holiday, will be paid standby time at the ordinary rate for the period from which the employee is directed to standby and until released by the employer.

(c) Where overtime goes beyond midnight or commences between midnight and 2.00 am, a minimum of 8 hours at the appropriate rate will be paid.

22.10 Time off instead of payment for overtime

(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.

(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause 22.10.

(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;

(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;

(iv) that any payment mentioned in clause 22.10(c)(iii) must be made in the next pay period following the request.

NOTE: An example of the type of agreement required by clause 22.10 is set out at Schedule H—Agreement for Time Off Instead of Payment for Overtime. There is no requirement to use the form of agreement set out at Schedule H—Agreement for Time Off Instead of Payment for Overtime. An agreement under clause 22.10 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 22.10 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e) Time off must be taken:

(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 22.10 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 22.10(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 22.10 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 22.10 will apply, including the requirement for separate written agreements under clause 22.10(b) for overtime that has been worked.

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 65(5) of the Act).

(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 22.10 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 22.10.

23. Shiftwork

23.1 An employee may be required to work shiftwork.

23.2 Except as otherwise provided for in clause 23, shiftworkers will be paid at 115% of the ordinary hourly rate for such shifts.

23.3 Shiftworkers who work on any afternoon or night shift roster which does not continue for at least 5 successive afternoons or nights will be paid for each shift:

(a) 150% of the ordinary hourly rate for the first 2 hours, and

(b) 200% of the ordinary hourly rate for the remaining hours

23.4 Where on a site at which the employee is engaged the shift premiums for the majority of employees are higher than those provided in clause 23.2, the employee will receive such higher shift premiums.

23.5 Where an employee is engaged in shiftwork on a site where employees receive compensation by way of annual leave and annual leave loading or otherwise for working Saturday, holiday and/or Sunday shifts, the employee will be given similar compensation for working such shifts.

23.6 All time worked on Saturdays will be paid at the following overtime rates:

(a) for the first 2 hours—150% of the ordinary hourly rate;

(b) after 2 hours—200% of the ordinary hourly rate; and

(c) for all time worked after 12 noon—200% of the ordinary hourly rate.

23.7 All time worked on Sundays will be paid at 200% of the ordinary hourly rate.

23.8 All time worked on public holidays will be paid at 250% of the ordinary hourly rate.

23.9 All work outside the ordinary hours of shiftwork will be paid 200% of the ordinary hourly rate.

23.10 A day worker required to work shiftwork will receive one week’s notice or payment of penalty rates.

23.11 Definitions:

(a) Day shift means any shift starting at or after 6.00 am and before 10.00 am.

(b) Afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm.

(c) Night shift means any shift starting at or after 8.00 pm and before 6.00 am.

Part 6—Leave and Public Holidays

24. Annual leave

24.1 Leave entitlement

(a) Section 87 of the Act prescribes the entitlement to annual leave. It does not apply to casual employees.

(b) For the purpose of the additional week of leave provided by the NES, a shiftworker is a 7 day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.

24.2 Arrangements for taking leave

(a) The annual leave will be given and taken in one or 2 continuous periods. If given in 2 separate periods, then one of those 2 periods must be at least 21 consecutive days, including non-working days.

(b) If the employer and an employee so agree, an annual leave entitlement may be given and taken in 2 separate periods, neither of which is of at least 21 consecutive days, including non-working days, or on 3 separate periods.

(c) Notwithstanding the provision of clause 24, an employee may elect, with the consent of the employer, to take annual leave in single day periods or part of a single day not exceeding a total of 5 days in any calendar year at a time or times agreed between them.

(d) An employee and employer may agree to defer payment of the annual leave loading in respect of single day absences, until at least 5 consecutive annual leave days are taken.

24.3 Annual leave in advance

(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 24.3 is set out at Schedule F—Agreement to Take Annual Leave in Advance. There is no requirement to use the form of agreement set out at Schedule F—Agreement to Take Annual Leave in Advance.

(c) The employer must keep a copy of any agreement under clause 24.3 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 24.3, 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.

24.4 Payment for annual leave

(a) Section 90 of the Act prescribes the basis for payment for annual leave, including payment for untaken leave upon the termination of employment. Annual Leave is dealt with in Division 6 of the NES.

24.5 Loading on annual leave

(i) An employer is required to pay an additional leave loading of 17.5% of that payment.

(ii) Where the employee would have received shift loadings prescribed by clause 23—Shiftwork, had they not been on leave and the loading would be of a greater amount than 17.5%, then it will apply to the relevant weekly wage rate instead of 17.5%.

(iii) The loading prescribed above will also apply to proportionate leave on lawful termination.

NOTE: Where an employee is receiving over-award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).

24.6 Annual close-down

(a) Where an employer closes down the depot or a section thereof, for the purposes of allowing annual leave to all or the bulk of employees in the depot or section concerned:

(i) The employer will give not less than 4 weeks’ notice of the close-down.

(ii) An employer may stand off for the duration of the close-down all employees in the depot, or section concerned, and allow to those who are not then qualified for a full entitlement to annual leave paid leave on a proportionate basis.

(iii) An employee who has qualified for a full entitlement to annual leave will be allowed paid leave.

(iv) All time during which an employee is stood off without pay for the purposes of clause 24.6 will be deemed to be time of service for the purpose of annual leave accrual.

(v) An employer may close down the depot for one or 2 separate periods for the purpose of granting annual leave in accordance with clause 24.6. If the employer closes down the depot in 2 separate periods, one of those periods will be for a period of at least 21 consecutive days including non-working days.

(vi) Where the majority of the employees in the depot or section concerned agree, the employer may close down the depot in accordance with clause 24.6 in 2 separate periods either of which is of at least 21 consecutive days including non-working days, or in 3 separate periods. In such cases the employer will advise the employees concerned of the proposed dates of each close-down before asking them for their agreement.

24.7 Part close-down and part rostered leave

(a) An employer may close down the depot, or a section thereof, for a period of at least 21 consecutive days including non-working days and grant the balance of the annual leave due to an employee in one continuous period in accordance with a roster.

(b) An employer may close down the depot, or a section thereof for a period of less than 21 consecutive days including non-working days and allow the balance of the annual leave due to an employee in one or 2 continuous periods either of which may be in accordance with a roster. In such a case the granting and taking of annual leave will be subject to the agreement of the employer and the majority of employees in the depot, or a section thereof, and before asking the employees concerned for their agreement the employer will advise them of the proposed date of the close-down or close-downs and the details of the annual leave roster.

24.8 Excessive leave accruals: general provision

NOTE: Clauses 24.8 to 24.10 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 24.1(b)).

(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.

(c) Clause 24.9 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

(d) Clause 24.10 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

24.9 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 24.8(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 24.9(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 24.8, 24.9 or 24.10 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 24.9(a) that is in effect.

(d) An employee to whom a direction has been given under clause 24.9(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 24.9(d) may result in the direction ceasing to have effect. See clause 24.9(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.

24.10 Excessive leave accruals: request by employee for leave

(a) Clause 24.10 comes into operation from 2 August 2018.

(b) If an employee has genuinely tried to reach agreement with an employer under clause 24.8(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.

(c) However, an employee may only give a notice to the employer under clause 24.10(b) 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 24.9(a) that, when any other paid annual leave arrangements (whether made under clause 24.8, 24.9 or 24.10 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.

(d) A notice given by an employee under clause 24.10(b) 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 24.8, 24.9 or 24.10 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.

(e) An employee is not entitled to request by a notice under clause 24.10(b) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 24.1(b)) in any period of 12 months.

(f) The employer must grant paid annual leave requested by a notice under clause 24.10(b).

24.11 Cashing out of annual leave

(a) Paid annual leave must not be cashed out except in accordance with an agreement under clause 24.11.

(b) Each cashing out of a particular amount of paid annual leave must be the subject of a separate agreement under clause 24.11.

(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 24.11 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 24.11 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 24.11 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 24.11.
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 24.11.
NOTE 3: An example of the type of agreement required by clause 24.11 is set out at Schedule G—Agreement to Cash Out Annual Leave. There is no requirement to use the form of agreement set out at Schedule G—Agreement to Cash Out Annual Leave.

25. Personal/carer’s leave and compassionate leave

Personal/carer’s leave and compassionate leave are provided for in the NES.

26. Parental leave and related entitlements

Parental leave and related entitlements are provided for in the NES.

27. Community service leave

27.1 Community service leave is provided for in the NES. Clause 27 provides additional provisions.

27.2 A weekly hire employee required to attend for jury service during ordinary working hours will be reimbursed by the employer an amount equal to the difference between the amount paid in respect of attendance for jury service and the amount of wages the employee would have received in respect of the ordinary time (including fares and travel) the employee would have worked had the employee not been on jury service.

28. Unpaid family and domestic violence leave

Unpaid family and domestic violence leave is provided for in the NES.

NOTE 1: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

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.

29. Public holidays

29.1 National Employment Standards

(a) Public holidays are provided for in the NES.

(b) An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.

(c) 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.

(d) Clause 29.1 supplements the NES entitlements. An employer who terminates the employment of an employee except for reasons of misconduct or incompetence (proof of which will lie upon the employer) will pay the employee a day’s ordinary wages for each holiday prescribed in or each holiday in a group which falls within 10 consecutive calendar days after the day of termination.

29.2 Part-day public holidays

For provisions in relation to part-day public holidays see Schedule I—Part-day Public Holidays.

Part 7—Consultation and Dispute Resolution

30. Consultation about major workplace change

30.1 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.

30.2 For the purposes of the discussion under clause 30.1(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.

30.3 Clause 30.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

30.4 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 30.1(b).

30.5 In clause 30 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.

30.6 Where this award makes provision for alteration of any of the matters defined at clause 30.5, such alteration is taken not to have significant effect.

31. Consultation about changes to rosters or hours of work

31.1 Clause 31 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.

31.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).

31.3 For the purpose of the consultation, the employer must:

(a) provide to the employees and representatives mentioned in clause 31.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and

(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.

31.4 The employer must consider any views given under clause 31.3(b).

31.5 Clause 31 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.

32. Dispute resolution

32.1 Clause 32 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.

32.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

32.3 If the dispute is not resolved through discussion as mentioned in clause 32.2, 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.

32.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 32.2 and 32.3, a party to the dispute may refer it to the Fair Work Commission.

32.5 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.

32.6 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.

32.7 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 32.

32.8 While procedures are being followed under clause 32 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.

32.9 Clause 32.8 is subject to any applicable work health and safety legislation.

Part 8—Termination of Employment and Redundancy

33. Termination of employment

NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.

33.1 Notice of termination by an employee

(a) Clause 33.1 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.

Table 1—Period of notice

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 33.1(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 33.1(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 33.1(b), then no deduction can be made under clause 33.1(d).

(f) Any deduction made under clause 33.1(d) must not be unreasonable in the circumstances.

33.2 Job search entitlement

(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 33.2 is to be taken at times that are convenient to the employee after consultation with the employer.

34. Industry specific redundancy scheme

34.1 The following redundancy clause for the mobile crane hiring industry is an industry specific redundancy scheme as defined in section 12 of the Act. In accordance with section 123(4)(b) of the Act the provisions of Subdivision B—Redundancy pay of Division 11 of the NES do not apply to employers and employees covered by this award.

34.2 Definitions

(a) Redundancy means any employment situation where the number of employees reasonably required by the employer exceeds the number required to perform the work which is available.

(b) Any one of the following factors may operate to reduce the amount of work which is available:

(i) closure of a company;

(ii) a decline in trade or business opportunities;

(iii) technological change or changes in the industry; or

(iv) a decision by a company to cease providing a particular service performed by its employees in a locality or from a site or depot.

(c) Retrenchment means termination of an employee who is made redundant in accordance with any of the circumstances covered by clause 34.2(b).

(d) For the purpose of clause 34, continuous service means service that will be deemed to be continuous notwithstanding an employee’s absence from work for any of the following reasons:

• annual leave, personal leave or parental leave;
• illness or accident up to a maximum of 4 weeks after the expiration of paid sick leave;
• jury service;
• injury received during the course of employment and up to a maximum of 26 weeks for which the employee received workers compensation;
• where called up for military service for up to 3 months in any qualifying period;
• long service leave;
• any reason satisfactory to the employer, provided that the reason will not be deemed satisfactory unless the employee has informed the employer within 24 hours of the time when the employee was due to attend for work, or as soon as practicable thereafter, of the reason for the absence and probable duration.

34.3 Payment instead of notice

In supplementation of the NES, clause 34.3 provides additional notice entitlements, to operate to the extent that the entitlements exceed those in the NES.

(a) Employees with more than 12 months’ continuous service will be entitled to receive 4 weeks’ pay at ordinary rates instead of notice.

(b) Employees with less than 12 months continuous service, other than casuals will be entitled to notice on the following basis:

(i) up to 3 months—one week;

(ii) more than 3 months up to 6 months—2 weeks;

(iii) more than 6 months up to 9 months—3 weeks; or

(iv) over 9 months—4 weeks.

(c) An employee will be paid instead of such notice or be required to work one week of such notice and be paid any balance instead.

34.4 Retrenchment payments

(a) Retrenched employees with more than 12 months service, will be entitled to 3 weeks pay, at the ordinary rate of pay for each completed year of service and pro rata payments for any uncompleted final year up to a maximum of 27 weeks’ pay.

(b) Provided that any employee who had at 16 September 1994 accrued any entitlements of more than 27 weeks’ pay will be entitled to the number of weeks entitlement accrued at that date with payment at the ordinary rate of pay applicable at the date of retrenchment.

34.5 Other entitlements

In addition to the entitlements prescribed in clauses 34.3 and 34.4, retrenched employees are entitled to the following additional benefits:

(a) payment of public holidays occurring within 20 working days of the final day of employment;

(b) pro rata annual leave plus loading of 17.5%; and

(c) accumulated sick leave to a maximum of 10 days.

34.6 Transfer of business

(a) Except where an employee has received redundancy benefits, where a business is transferred from an employer (in clause 34.6(a) called the old employer) to another employer (in clause 34.6(a) called the new employer) and an employee who at the time of such transfer was an employee of the old employer in that business becomes an employee of the new employer.

(i) the continuity of the employment of the employee will be deemed not to have been broken by reasons of such transfer; and

(ii) the period of employment which the employee has had with the old employer or any prior old employer will be deemed to be service of the employee with the new employer.

(b) In clause 34.6, business includes trade, process, business or occupation and includes part of any such business and transfer includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transferred has a corresponding meaning.

Schedule A—Classification Structure
A.1 Classifications
A.1.1 Mobile Crane Employee Level 1 (MCE1)

(a) Skills and duties
An employee at MCE1 level may perform the following tasks:
• Dogger
• Counterweight/Gear Truck Driver
• Mobile Hydraulic Platform Operator–up to 17m
• up to 20 tonne Slew Crane Operator
(b) Minimum qualifications
An employee at MCE1 level must have successfully obtained the following minimum qualification:
• Dogging License; or
• Boom-type elevating work platform License (WP); or
• Heavy Rigid License (HR); and
• Slew Crane License of up to 20 tonnes

A.1.2 Mobile Crane Employee Level 2 (MCE2)

(a) Skills and duties
An employee at MCE2 level may perform the following tasks:
• 21t–60t Slew Crane Operator (C2 &C6)
• Non Slew (Franna) Operator (CN)
• Basic Rigger (structural steel frames erection or assembly of mobile cranes)
• Mobile Hydraulic Platform Operator - 17m and up to 28m
(b) Minimum qualifications
An employee at MCE2 level must have successfully obtained the following minimum qualification:
• Heavy Rigid License (HR); and
• Slew Crane License of up to 60 tonne; or
• Non Slew Crane Operator License; or
• Basic Rigger ticket; or
• Boom-type elevating work platform license (WP).

A.1.3 Mobile Crane Employee Level 3 (MCE3)

(a) Skills and duties
An employee at MCE3 1evel may perform the following tasks:
• 61t–100t Slew Crane Operator (C1);
• Intermediate Rigger (Tower Crane erecting or Pre CastConcrete component erection);
• Mobile Hydraulic Platform Operator–28m and above.
(b) Minimum qualifications
An employee at MCE3 level must have successfully obtained the following minimum qualification:
• Heavy Combination License (HC); and
• Slew Crane License of up to 100 tonne; or
• Intermediate Riggers License; or
• Boom-type elevating work platform license (WP).

A.1.4 Mobile Crane Employee Level 4 (MCE4)

(a) Skills and duties
An employee at MCE4 level may perform the following tasks:
• 101t–200t Slew Crane Operator (No boom trailer) (CO);
• Advanced Rigger; or
• Heavy Low Bed Transport Operator.
(b) Minimum qualifications
An employee at MCE4 level must have successfully obtained the following minimum qualification:
• Heavy Combination License (HC); and
• Doggers ticket; and
• Slew Crane License of over 100 tonne; or
• Advanced Rigger; or
• Multi Combination License.

A.1.5 Mobile Crane Employee Level 5 (MCE5)

(a) Skills and duties
An employee at MCE5 level may perform the following tasks:
• 201t - 300t Slew Crane (CO);
• less than 100t Slew Crane with Boom Trailer; or
• less than100t Slew Crane with Luffing Fly Jib.
(b) Minimum qualifications
An employee at MCE5 level must have successfully obtained the following minimum qualification:
• Slew Crane License of over 100 tonne; and
• Heavy Combination License (HC); and
• Doggers ticket.

A.1.6 Mobile Crane Employee level 6 (MCE6)

(a) Skills and duties
An employee at MCE6 level may perform the following tasks:
• 301t–400t Slew Crane Operator (CO); or
• less than 200t Crane Operator with Luffing Fly Jib.
(b) Minimum qualifications
An employee at MCE6 level must have successfully obtained the following minimum qualification:
• Slew Crane License of over 100 tonne; and
• Heavy Combination License (HC); and
• Riggers ticket.

A.1.7 Mobile Crane Employee level 7 (MCE7)

(a) Skills and duties
An employee at MCE7 level may perform the following tasks:
• 401t or greater Slew Crane (CO); or
• less than 200t with Superlift type attachment.
(b) Minimum qualifications
An employee at MCE7 level must have successfully obtained the following minimum qualification:
• Slew Crane License of over 100 tonne; and
• Heavy Combination License (HC); and
• Intermediate Rigger.

Schedule B—Summary of Hourly Rates of Pay
B.1 Ordinary hourly rate
Ordinary hourly rate includes the industry allowance (clause 16.2) which is payable for all purposes.
B.2 Full-time employees
B.2.1 Full-time employees other than shiftworkers—ordinary rates

¹ Ordinary hourly rate includes the industry allowance payable to all employees for all purposes.

B.2.2 Full-time shiftworkers—shiftwork rates

¹ Day shift means any shift starting at or after 6.00 am and before 10.00 am.
² Afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm.
³ Night shift means any shift starting at or after 8.00 pm and before 6.00 am.
⁴ Non-successive afternoon or night shifts apply to shift workers working a roster that does not continue for at least 5 successive shifts as stated in clause 23.3.
⁵ Ordinary hourly rate includes the industry allowance payable to all employees for all purposes.
B.2.3 Full-time employees—overtime

¹ Ordinary hourly rate includes the industry allowance payable to all employees for all purposes.
B.3 Casual employees
B.3.1 Casual employees—ordinary rates

¹ Ordinary hourly rate includes the industry allowance payable to all employees for all purposes.

B.3.2 Casual shiftworkers—shiftwork rates

¹ Day shift means any shift starting at or after 6.00 am and before 10.00 am.
² Afternoon shift means any shift starting at or after 10.00 am and before 8.00 pm.
³ Night shift means any shift starting at or after 8.00 pm and before 6.00 am.
⁴ Non-successive afternoon or night shifts apply to shift workers working a roster that does not continue for at least 5 successive shifts as stated in clause 23.3.
⁵ Ordinary hourly rate includes the industry allowance payable to all employees for all purposes.

Schedule C—Summary of Monetary Allowances

See clause 18—Allowances for full details of allowances payable under this award.

C.1 Wage-related allowances

The following wage-related allowances, defined in clause 2—Definitions as the minimum hourly rate for a mobile crane employee (MCE) level 1 in clause 16.1 = $23.09.

¹ This allowance applies for all purposes of this award.

C.2 Expense-related allowances

The following expense-related allowances will be payable to employees in accordance with clause 18.3.

C.3 Adjustment of monetary allowances
C.3.1 This award contains wage-related allowances and expense-related (or reimbursement) allowances.
C.3.2 All wage-related allowances are expressed as a percentage of the standard rate and will be re-calculated at the time of any change in the standard rate.
C.3.3 At the time of each adjustment to 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.
C.3.4 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:

Schedule D—Supported Wage System
D.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.
D.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, 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.

D.3 Eligibility criteria
D.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.
D.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.
D.4 Supported wage rates
D.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

D.4.2 Provided that the minimum amount payable must be not less than $89 per week.
D.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.
D.5 Assessment of capacity
D.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.
D.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.
D.6 Lodgement of SWS wage assessment agreement
D.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.
D.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.
D.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.

D.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.

D.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.

D.10 Trial period
D.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.
D.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.
D.10.3 The minimum amount payable to the employee during the trial period must be no less than $89 per week.
D.10.4 Work trials should include induction or training as appropriate to the job being trialled.
D.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 D.5.

Schedule E—National Training Wage
E.1 Definitions
E.1.1 In this schedule:

adult trainee means a trainee who would qualify for the highest minimum wage in wage level A or B if covered by that wage level.
approved training, in relation to a trainee, means the training specified in the training contract of the trainee.
Australian Qualifications Framework (AQF) means the national framework for qualifications in post-compulsory education and training.
relevant State or Territory training authority means a body in the relevant State or Territory that has power to approve traineeships, and to register training contracts, under the relevant State or Territory vocational education and training legislation.
relevant State or Territory vocational education and training legislation means the following or any successor legislation:
Apprenticeship and Traineeship Act 2001 (NSW);
Education and Training Reform Act 2006 (Vic);
Training and Skills Development Act 2008 (SA);
Training and Skills Development Act 2016 (NT);
Training and Tertiary Education Act 2003 (ACT);
Training and Workforce Development Act 2013 (Tas);
Vocational Education and Training Act 1996 (WA);
Further Education and Training Act 2014 (Qld).
trainee means an employee undertaking a traineeship under a training contract.
traineeship means a system of training that:
(a) has been approved by the relevant State or Territory training authority; and
(b) meets the requirements of a training package developed by the relevant Skills Service Organisation and endorsed by the Australian Industry and Skills Committee; and
(c) leads to an AQF certificate level qualification.
training contract means an agreement for a traineeship made between an employer and an employee that is registered by the relevant State or Territory training authority.
training package means the competency standards and associated assessment guidelines for an AQF certificate level qualification that have been endorsed for an industry or enterprise by the Australian Industry and Skills Committee.
wage level A or B, see clause E.4.
Year 10 includes any year before Year 10.

E.1.2 A reference in this schedule to out of school refers only to periods out of school beyond Year 10 as at 1 January in each year and is taken to:

(a) include any period of schooling beyond Year 10 that was not part of, or did not contribute to, a completed year of schooling; and
(b) include any period during which a trainee repeats, in whole or part, a year of schooling beyond Year 10; and
(c) not include any period during a calendar year after the completion during that year of a year of schooling.

E.2 Coverage
E.2.1 Subject to clauses E.2.2 to E.2.5, this schedule applies to an employee covered by this award who is undertaking a traineeship and whose training package and AQF certificate level are allocated to a wage level by clause E.6 or by clause E.4.4.
E.2.2 This schedule only applies to AQF Certificate Level IV traineeships for which a relevant AQF Certificate Level III traineeship is listed in clause E.6.
E.2.3 This schedule does not apply to:

(a) the apprenticeship system; or
(b) qualifications not identified in training packages; or
(c) qualifications in training packages that are not identified as appropriate for a traineeship.

E.2.4 If this schedule is inconsistent with other provisions of this award relating to traineeships, the other provisions prevail.
E.2.5 This schedule ceases to apply to an employee at the end of the traineeship.
E.3 Types of traineeship

The following types of traineeship are available:

E.3.1 A full-time traineeship based on 38 ordinary hours per week, with 20% of those hours being approved training;
E.3.2 A part-time traineeship based on fewer than 38 ordinary hours per week, with 20% of those hours being approved training provided:

(a) wholly on the job; or
(b) partly on the job and partly off the job; or
(c) wholly off the job.

E.4 Minimum rates
E.4.1 Minimum weekly rates for full-time traineeships

(a) Wage level A
The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause E.6.1 is the weekly rate specified in Column 2 of Table 1—Wage level A minimum weekly rate for full-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in Column 1.
Table 1—Wage level A minimum weekly rate for full-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause E.4.3 for other minimum wage provisions that affect clause E.4.1(a).
(b) Wage level B
The minimum rate for a full-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause E.6.2 or by clause E.4.4 is the weekly rate specified in Column 2 of Table 2—Wage level B minimum weekly rate for full-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in Column 1.
Table 2—Wage level B minimum weekly rate for full-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause E.4.3 for other minimum wage provisions that affect clause E.4.1(b).
(c) AQF Certificate Level IV traineeships
(i) The minimum rate for a full-time trainee undertaking an AQF Certificate Level IV traineeship is the minimum rate for the relevant full-time AQF Certificate Level III traineeship increased by 3.8%.
(ii) The minimum rate for a full-time adult trainee undertaking an AQF Certificate Level IV traineeship is the weekly rate specified in Column 2 or 3 of Table 3—Minimum weekly rate for full-time adult trainees (AQF Certificate Level IV traineeship) according to the year of the traineeship specified in those columns and the relevant wage level for the relevant AQF Certificate Level III traineeship specified in Column 1.

Table 3—Minimum weekly rate for full-time adult trainees (AQF Certificate Level IV traineeship)

NOTE: See clause E.4.3 for other minimum wage provisions that affect clause E.4.1(c).

E.4.2 Minimum hourly rates for part-time traineeships

(a) Wage level A
The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level A by clause E.6.1 is the hourly rate specified in Column 2 of Table 4—Wage level A minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in Column 1.
Table 4—Wage level A minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause E.4.2(e) for calculating the actual minimum wage. See also clause E.4.3 for other minimum wage provisions that affect clause E.4.2(a).
(b) Wage level B
The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage level B by clause E.6.2 or by clause E.4.4 is the hourly rate specified in Column 2 of Table 5—Wage level B minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship) according to the highest year of schooling completed by the trainee specified in that column and the experience level of the trainee specified in Column 1.
Table 5—Wage level B minimum hourly rate for part-time trainees (AQF Certificate Level I–III traineeship)

NOTE: See clause E.4.2(e) for calculating the actual minimum wage. See also clause E.4.3 for other minimum wage provisions that affect clause E.4.2(b).
(c) School-based traineeships
The minimum hourly rate for a part-time trainee who works ordinary hours and is undertaking a school-based AQF Certificate Level I–III traineeship whose training package and AQF certificate levels are allocated to wage levels A or B by clause E.6 or by clause E.4.4 is the hourly rate in Column 1 or 2 of Table 6—Minimum hourly rate for part-time trainees (school-based AQF Certificate Level I–III traineeship) according to the year of schooling of the trainee.
Table 6—Minimum hourly rate for part-time trainees (school-based AQF Certificate Level I–III traineeship)

NOTE: See clause E.4.2(e) for calculating the actual minimum wage. See also clause E.4.3 for other minimum wage provisions that affect clause E.4.2(c).
(d) AQF Certificate Level IV traineeships
(i) The minimum hourly rate for a part-time trainee undertaking an AQF Certificate Level IV traineeship is the minimum hourly rate for the relevant part-time AQF Certificate Level III traineeship increased by 3.8%.
(ii) The minimum hourly rate for a part-time adult trainee undertaking an AQF Certificate Level IV traineeship is the hourly rate in Column 2 or 3 of Table 7—Minimum hourly rate for part-time adult trainees (AQF Certificate Level IV traineeship), according to the year of the traineeship specified in those columns and the relevant wage level for the relevant AQF Certificate Level III traineeship specified in Column 1.

Table 7—Minimum hourly rate for part-time adult trainees (AQF Certificate Level IV traineeship)

NOTE: See clause E.4.2(e) for calculating the actual minimum wage. See also clause E.4.3 for other minimum wage provisions that affect clause E.4.2(d).

(e) Calculating the actual minimum wage
(i) If fewer than 38 (or an average of 38) ordinary hours of work per week is considered full-time at the workplace by the employer, the appropriate minimum hourly rate for a part-time trainee is obtained by multiplying the relevant minimum hourly rate in clauses E.4.2(a) to (d) by 38 and then dividing the figure obtained by the full-time ordinary hours of work per week.
(ii) If the approved training for a part-time traineeship is provided wholly off-the-job by a registered training organisation, for example at school or at TAFE, the relevant minimum hourly rate in clauses E.4.2(a) to (d) applies to each ordinary hour worked by the trainee.
(iii) If the approved training for a part-time traineeship is undertaken solely on-the-job or partly on-the-job and partly off-the-job, the relevant minimum hourly rate in clauses E.4.2(a) to (d) minus 20% applies to each ordinary hour worked by the trainee.

E.4.3 Other minimum wage provisions

(a) Clause E.4.3 applies despite anything to the contrary in clause E.4.2 or E.4.4.
(b) An employee who was employed by an employer immediately before becoming a trainee with that employer must not suffer a reduction in their minimum rate of pay because of becoming a trainee.
(c) For the purpose of determining whether a trainee has suffered a reduction as mentioned in clause E.4.3(b), casual loadings are to be disregarded.
(d) If a qualification is converted from an AQF Certificate Level II to an AQF Certificate Level III traineeship, or from an AQF Certificate Level III to an AQF Certificate Level IV traineeship, then the trainee must be paid the next highest minimum wage provided in this schedule, if a higher minimum wage is provided for the new AQF certificate level.

E.4.4 Default wage rate

The minimum wage for a trainee undertaking an AQF Certificate Level I–III traineeship whose training package and AQF certificate level are not allocated to a wage level by clause E.6 is the relevant minimum wage under this schedule for a trainee undertaking an AQF Certificate to Level I–III traineeship whose training package and AQF certificate level are allocated to wage level B.

E.5 Employment conditions
E.5.1 A trainee undertaking a school-based traineeship may agree to be paid an additional loading of 25% on all ordinary hours worked instead of being paid annual leave, paid personal/carer’s leave, paid compassionate leave and paid absence on public holidays. However, if the trainee works on a public holiday, the public holiday provisions of this award apply.
E.5.2 A trainee is entitled to be released from work without loss of pay and without loss of continuity of employment to attend any training and assessment specified in, or associated with, the training contract.
E.5.3 Time spent by a trainee, other than a trainee undertaking a school-based traineeship, in attending any training and assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the trainee’s wages and determining the trainee’s employment conditions.
E.5.4 The time to be included for the purpose of calculating the wages for part time trainees whose approved training is wholly off-the-job is determined by clauses E.4.2(e)(ii) and (iii) and not by clause E.5.3.
E.5.5 Subject to clause E.2.4, this award applies to a trainee in the same way that it applies to an employee who is not a trainee except as otherwise expressly provided by this schedule.
E.6 Allocation of traineeships to wage levels

The wage levels applying to training packages and their AQF certificate levels are:

E.6.1 Wage level A

E.6.2 Wage level B

Schedule F—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___

Schedule G—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___

Schedule H—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 I—Part-day Public Holidays
I.1 This schedule operates in conjunction with award provisions dealing with public holidays.
I.2 Where a part-day public holiday is declared or prescribed between 6.00 pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.
(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.
(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.
(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.
(e) Where an employee works any hours on the declared or prescribed part-day public holiday they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.
(f) An employee not rostered to work on the declared or prescribed part-day public holiday, other than an employee who has exercised their right in accordance with clause I.2(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.
(g) Nothing in this schedule affects the right of an employee and employer to agree to substitute public holidays.

I.3 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.
I.4 This schedule is not intended to detract from or supplement the NES.

Schedule 24—Additional Measures During the COVID-19 Pandemic
I.5 Subject to clauses X.2.1(d) and X.2.2(c), Schedule X operates from 11 August 2020 until 29 March 2021. The period of operation can be extended on application.
I.6 During the operation of Schedule X, the following provisions apply:
I.6.1 Unpaid pandemic leave

(a) Subject to clauses X.2.1(b), (c) and (d), any employee is entitled to take up to 2 weeks’ unpaid leave if the employee is required by government or medical authorities or on the advice of a medical practitioner to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.
(b) The employee must give their employer notice of the taking of leave under clause X.2.1(a) and of the reason the employee requires the leave, as soon as practicable (which may be a time after the leave has started).
(c) An employee who has given their employer notice of taking leave under clause X.2.1(a) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason given in clause X.2.1(a).
(d) A period of leave under clause X.2.1(a) must start before 29 March 2021, but may end after that date.
(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under this award and the NES.
NOTE: The employer and employee may agree that the employee may take more than 2 weeks’ unpaid pandemic leave.

I.6.2 Annual leave at half pay

(a) Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay.
(b) Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record.
(c) A period of leave under clause X.2.2(a) must start before 29 March 2021, but may end after that date.
EXAMPLE: Instead of an employee taking one week’s annual leave on full pay, the employee and their employer may agree to the employee taking 2 weeks’ annual leave on half pay. In this example:
• the employee’s pay for the 2 weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay (where one week’s full pay includes leave loading under the Annual Leave clause of this award); and
• one week of leave is deducted from the employee’s annual leave accrual.

NOTE 1: An employee covered by this award who is entitled to the benefit of clause X.2.1 or X.2.2 has a workplace right under section 341(1)(a) of the Act.

NOTE 2: Under section 340(1) of the Act, an employer must not take adverse action against an employee because the employee has a workplace right, has or has not exercised a workplace right, or proposes or does not propose to exercise a workplace right, or to prevent the employee exercising a workplace right. Under section 342(1) of the Act, an employer takes adverse action against an employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.

NOTE 3: Under section 343(1) of the Act, a person must not organise or take, or threaten to organise or take, action against another person with intent to coerce the person to exercise or not exercise, or propose to exercise or not exercise, a workplace right, or to exercise or propose to exercise a workplace right in a particular way.