|
ORDER |
Workplace Relations Act 1996
s.576E—Procedure for carrying out award modernisation process
QUARRYING AWARD 2010
(AM2008/22)
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 3 APRIL 2009 |
Award modernisation.
1. Further to the decision [[2009] AIRCFB 345] issued by the Commission on 3 April 2009, the following modern award is made:
Quarrying Award 2010
2. The award is attached.
BY THE COMMISSION:
PRESIDENT
Quarrying Award 2010 (MA000037)
Table of Contents
Part 1— Application and Operation
1. Title
2. Commencement date
3. Definitions and interpretation
4. Coverage
5. Access to the award and the National Employment Standards
6. The National Employment Standards and this award
7. Award flexibility
Part 2— Consultation and Dispute Resolution
8. Consultation regarding major workplace change
9. Dispute resolution
Part 3— Types of Employment and Termination of Employment
10. Employment categories
11. Full-time employees
12. Part-time employees
13. Casual employees
14. Termination of employment
15. Redundancy
Part 4— Classifications and Minimum Wage Rates
16. Classifications
17. Minimum wages
18. Allowances
19. Accident pay
20. Payment of wages
21. Higher duties
22. Superannuation
23. Supported wage system
24. National training wage
Part 5— Hours of Work and Related Matters
25. Hours of work
26. Meal breaks
27. Rest breaks
28. Overtime
Part 6— Leave and Public Holidays
29. Annual leave
30. Personal/carer’s leave and compassionate leave
31. Community service leave
32. Public holidays
Schedule A— Classification Descriptors
Schedule B— Core Competencies
Schedule C— Supported Wage System
Schedule D— National Training Wage
Part 1—Application and Operation
This award is the Quarrying Award 2010.
This award commences on 1 January 2010.
3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
Act means the Workplace Relations Act 1996 (Cth)
afternoon shift means any shift finishing after 6.00 pm and at or before midnight
Commission means the Australian Industrial Relations Commission or its successor
employee has the meaning in the Act
employee in charge of processing plant means:
(a) when two or more employees are employed at the plant at one time, the employee who is invested with the superintendence and responsibility; or
(b) an employee vested with superintendence and responsibility; or
(c) when the employee is the only person of the employee’s class employed on the plant, the employee who does the general repair work of the plant in addition to the work of operating, but not merely assists a fitter or engineer to do the work
employer has the meaning in the Act
enterprise award has the meaning in the Act
enterprise NAPSA means a NAPSA derived from a State award which immediately prior to 27 March 2006 applied only to a single business or a part of a single business
leading hand means an employee who is required to supervise, direct or to be in charge of another employee or employees
NAPSA means notional agreement preserving a State award and has the meaning in the Act
NES means National Employment Standards
night shift means any shift finishing after midnight and at or before 8.00 am
quarrying industry means:
(d) operations in lime and/or stone quarries, sand pits or gravel pits, other than dimension stone, brick, shale or slate quarries; and
(e) operations (other than in a quarry) where the plant and equipment is principally used to crush, screen and/or blend materials such as stone, brick concrete, masonry, asphalt etc. to produce recycled material, including aggregates, road bases, gravels, fine sands and/or course sands and/or a blend of these
standard rate means the minimum wage for Grade 4 in clause 17—Minimum wages
3.2 Where this award refers to a condition of employment provided for in the NES the reference is to the condition as defined in the NES.
4.1 This industry award covers employers throughout Australia in the quarrying industry and their employees in the classifications listed in clause 16—Classifications to the exclusion of any other modern award.
4.2 The award does not cover an employee excluded from award coverage by the Act.
4.3 The award does not cover an employer bound by an enterprise award or an enterprise NAPSA with respect to any employee who is covered by the enterprise award or NAPSA.
4.4 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. Access to the award and the National Employment Standards
The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible.
6. The National Employment Standards and this award
The NES and this award contain the minimum conditions of employment for employees covered by this award.
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and
(b) result in the employee being better off overall than the employee would have been if no individual flexibility agreement had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
(a) by the employer or the individual employee giving four weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
7.9 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.
Part 2—Consultation and Dispute Resolution
8. Consultation regarding major workplace change
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Commission.
9.3 The parties may agree on the process to be utilised by the Commission including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, the Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
Part 3—Types of Employment and Termination of Employment
10.1 Employees may be employed in one of the following categories:
• full-time;
• part-time; or
• casual.
10.2 At the time of commencing employment an employer must inform an employee in writing of the category of their employment; whether it is full-time, part-time or casual.
A full-time employee is an employee who is employed to work an average of 38 ordinary hours per week.
12.1 A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) works a regular number of ordinary hours each week.
12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:
• the hours worked each day;
• which days of the week the employee will work; and
• the actual starting and finishing times of each day.
12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.
12.4 The agreement and variation will be retained by the employer and a copy given to the employee.
12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual Employees.
12.7 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
12.8 All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.
13.1 A casual employee is an employee employed and paid as such.
13.2 A casual employee:
(a) must be paid an hourly rate of 1/38th of the weekly ordinary time rate of pay for the classification in which they are employed in, plus a casual loading of 25%; and
(b) must be paid for a minimum of three hours each day they are employed.
13.3 The casual loading is instead of annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other attributes of full-time or part-time employment.
13.4 Casual conversion to full-time or part-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 six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time 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 13.4 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 13.4 if the employer fails to comply with clause 13.4(b).
(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 13.4(a), on receiving notice under clause 13.4(b) or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four 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 a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 13.4(d), the employer and employee must, subject to clause 13.4(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 12—Part-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 13.4(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.
(j) 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 13.4(a) as if the reference to six 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 two months prior to the period of six months referred to in clause 13.4(a).
(k) For the purposes of clause 13.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
13.5 An employee must not be engaged and re-engaged to avoid any obligation under this award.
14.1 Notice of termination is provided for in the NES.
14.2 Notice of termination by an employee
The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.
Where an employer has given notice of termination to an employee, an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.
15.1 Redundancy pay is provided for in the NES.
15.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.
15.3 Employee leaving during notice period
An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but is not entitled to payment instead of notice.
15.4 Job search entitlement
(a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.
(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.
(c) This entitlement applies instead of clause 14.3.
15.5 Transitional provisions
(a) Subject to clause 15.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a NAPSA:
(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement made under the Act had applied to the employee; and
(ii) that would have entitled the employee to redundancy pay in excess of the employee’s entitlement to redundancy pay, if any, under the NES.
(b) The employee’s entitlement to redundancy pay under the NAPSA is limited to the amount of redundancy pay which exceeds the employee’s entitlement to redundancy pay, if any, under the NES.
(c) This clause does not operate to diminish an employee’s entitlement to redundancy pay under any other instrument.
(d) Clause 15.5 will cease to operate on 31 December 2014.
Part 4—Classifications and Minimum Wage Rates
16.1 All employees covered by this award must be classified according to the structure set out in Schedule A—Classification Descriptors. Employers must advise their employees in writing of their classification and any changes to their classification.
16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
A full-time employee must be paid a minimum weekly rate for their classification as set out in the table below:
Classification |
Minimum weekly rate |
Grade 1 |
543.90 |
Grade 2 |
560.00 |
Grade 3 |
599.40 |
Grade 4 |
618.20 |
Grade 5 |
637.60 |
Grade 6 |
658.10 |
An employee engaged in any of the work specified in this award will be paid an allowance of 3.25% of the standard rate for that week to compensate for the disabilities of the industry. This additional rate will be regarded as part of the standard rate for all purposes.
18.2 Leading hand
Employees performing work as a leading hand or who are in charge of the plant (as defined) will be paid the following additional percentage of the standard rate per week:
Leading hand |
Allowance |
% |
|
In charge of less than 3 employees |
2.18 |
In charge of 3 to 6 employees |
3.04 |
In charge of 6 to 10 employees |
3.78 |
In charge of more than 10 employees |
6.00 |
Employee in charge of plant |
2.18 |
This allowance will be paid for all purposes.
18.3 Tool allowance
Where an employee is required to provide tools and appliances used in connection with the work of a quarry, the employee will be reimbursed by the employer for the cost of the tools and appliances. The provisions of this clause do not apply where the tools and appliances are provided by the employer.
18.4 First aid allowance
An employee will be paid an additional 1.9% of the standard rate each week where the employee:
• has been trained to provide first aid;
• holds a current and appropriate first aid qualification (such as a certificate from St John Ambulance or a similar body); and
• is appointed by the employer to perform first aid duty.
This payment will be regarded as part of the standard rate for all purposes.
Where employees during working hours are directed by the employer to use their private vehicle for any purpose, they must be paid an allowance of $0.74 per kilometre travelled.
18.6 Payment for wet weather
(a) When the employer or its responsible representative determines that the weather is too wet for ordinary duties, an employee will be paid on the basis of the rate prescribed for the appropriate classification in clause 17—Minimum wages for all time lost.
(b) An employee is not entitled to this payment unless the employee attends at and remains at the place of employment and is available and willing to perform work under cover when requested to do so, such other duties as may be allotted to the employee.
(i) Each employee must be provided with two pairs of appropriate overalls or trousers/shirt or shorts/shirt combinations per annum free of charge
(ii) Each employee must be provided with a maximum of two pairs of safety boots/shoes per annum on a one pair for one pair replacement basis.
(iii) Any other article of protective clothing that is required must be provided by the employer and must be worn.
(iv) The employer must replace such articles when, in the opinion of the employer, they are no longer in a serviceable condition, but no employee will be entitled to a replacement unless they return the corresponding article issued to them or, if the article is lost or misplaced by the employee to whom it was issued, they must pay a reasonable price for the article.
(v) The articles supplied in accordance with this subclause will remain the property of the employer.
(vi) Where the employee is responsible for laundering the protective clothing, the employer will reimburse the employee for the demonstrated costs of laundering. Alternatively, the employer and employee may agree upon an allowance payable to the employee for laundering of the protective clothing.
(b) Prescription case-hardened lenses
An employer who requires an employee to have their prescription lenses case-hardened must pay for the cost of such case-hardening.
(c) Replacement of damage personal articles
An employer must compensate an employee to the extent of the damage sustained where, in the course of undertaking their work, the employees clothing (other than that referred to in clause 18.7(a)), spectacles, hearing aids or tools are damaged or destroyed by fire or molten metal or through the use of corrosive substances.
18.8 Travel, board and lodging
(a) Temporary transfer
Employees temporarily transferred from their usual place of employment to another location must be paid at ordinary time rates for all time in excess of that usually spent in travelling to their place of employment and when required to use their private vehicle must be paid an allowance as set out in clause 18.5 for all distance travelled in excess of that usually travelled to their place of employment.
(b) Permanent change in locality
An employee:
(i) employed in one locality to work in another; or
(ii) sent other than at their own request from their usual locality to another for employment which can reasonably be regarded as permanent, involving a change of residence;
must be paid travelling time whilst necessarily travelling between such localities and expenses for a period not exceeding three months or, in cases where the employee is in the process of buying a place of residence in the new locality, for a period not exceeding six months. Expenses will cease after the employee has taken up permanent residence or abode at the new location.
(c) Temporary change in locality
An employee sent from their usual locality to another (in circumstances other than those prescribed in clause 18.8(b)) and required to remain away from their usual residence must be paid travelling time whilst necessarily travelling between such localities and such expenses incurred whilst so absent from their usual locality.
(d) Rate for travelling time
The rate of pay for travelling time will be ordinary rates, except on Sundays and holidays when it will be time and a half.
(e) Maximum travel time
The maximum travelling time to be paid for will be 12 hours out of every 24 or when sleeping berth is provided by the employer for all night travel, eight hours out of every 24.
(f) Meaning of expense
Expenses for the purpose of clause 18.8 means:
(i) all fares reasonably incurred;
(ii) reasonable expenses incurred whilst travelling, including the amount calculated at the rate of $11.00 for each meal taken; and
(iii) the provision of reasonable board and lodging or a reasonable allowance to cover the cost incurred for board and lodging, not exceeding the amount calculated at the rate of $347.00 per week.
18.9 Meal allowance for overtime
(a) If an employee is required to work overtime for two hours or more after their normal ceasing time the employee must be paid a meal allowance of $11.00. The employee will be entitled to this meal allowance again six hours or more after their normal ceasing time and every four hours thereafter.
(b) If the employee is notified of the requirement to work overtime but the employee is not called upon to work that overtime the employee must be paid the amount provided in clause 18.9(a).
18.10 Transport after overtime or shiftwork
When an employee, after working overtime or a shift for which the employee is not regularly rostered, finishes work at a time when reasonable means of transport are not available, the employer will provide the employee with conveyance to their home.
18.11 Articulated licence
Where an employee is required by the employer to obtain a licence to drive an articulated vehicle the employer will reimburse the employee for the cost incurred in obtaining the licence.
18.12 Adjustment of expense related allowances
At the time of any adjustment to the standard rate, each expense related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.
The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:
Allowance |
Applicable Consumer Price Index figure |
Meal allowance |
Take-away and fast foods sub-group |
Vehicle allowance |
Private motoring sub-group |
Board and lodging |
Holiday travel and accommodation sub-group |
(a) Northern Territory
An employee in the Northern Territory is entitled to payment of a district allowance in accordance with the terms of an award made under the Workplace Relations Act 1996 (Cth):
(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement made under that Act had applied to the employee; and
(ii) that would have entitled the employee to payment of a district allowance.
(b) Western Australia
An employee in Western Australia is entitled to payment of a district allowance in accordance with the terms of a NAPSA or an award made under the Workplace Relations Act 1996 (Cth):
(i) that would have applied to the employee immediately prior to 1 January 2010, if the employee had at that time been in their current circumstances of employment and no agreement made under that Act had applied to the employee; and
(ii) that would have entitled the employee to payment of a district allowance.
(c) This clause ceases to operate on 31 December 2014.
19.1 Subject to clause 19.2, an employee is entitled to accident pay in accordance with the terms of:
(a) a NAPSA that would have applied to the employee immediately prior to 1 January 2010 or an award made under the Workplace Relations Act 1996 (Cth) that would have applied to the employee immediately prior to 27 March 2006, if the employee had at that time been in their current circumstances of employment and no agreement made under the Workplace Relations Act 1996 (Cth) had applied to the employee; and
(b) that would have entitled the employee to accident pay in excess of the employee’s entitlement to accident pay, if any, under any other instrument.
19.2 The employee’s entitlement to accident pay under the NAPSA or award is limited to the amount of accident pay which exceeds the employee’s entitlement to accident pay, if any, under any other instrument.
19.3 This clause does not operate to diminish an employee’s entitlement to accident pay under any other instrument.
19.4 This clause ceases to operate on 31 December 2014.
20.1 Pay week
Wages (including overtime, any penalties and allowances) must be paid weekly or by agreement between the employer and the employee fortnightly.
20.2 Method of payment
An employer may pay an employee’s wages by electronic funds transfer into a nominated bank of financial institution nominated by the employee or by cash or cheque.
20.3 Time of payment, cash or cheque
If payment is by cash or cheque, wages will be paid during ordinary working hours.
20.4 EFT wages fail to be deposited
When an employee is paid by way of electronic funds transfer and their wages are not in their nominated account on the designated pay day the employer, if requested to do so by the employee, must provide their wages in cash by conclusion of the next day’s shift.
An employee who is required to do work for which a higher rate is fixed than that provided for their classification will, if such work exceeds a total of two hours on any day, be paid for all work done on such day at the higher rate. In all other cases the employee will be paid the higher rate for the actual time worked.
22.1 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, any superannuation fund nominated in the award covering the employee applies.
(b) The rights and obligations in these clauses supplement those in superannuation legislation.
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.
22.3 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 22.2.
(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 22.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 22.3(a) or (b) was made.
22.4 Superannuation fund
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 22.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 22.2 and pay the amount authorised under clauses 22.3(a) or (b) to one of the following superannuation funds:
(a) AustralianSuper;
(b) Australian Public Superannuation Fund;
(c) Australian Superannuation Savings Employment Trust (ASSET);
(d) Sunsuper;
(e) BUSS(Q);
(f) AUST(Q);
(g) Tasplan;
(h) Building Employers Superannuation Trust; or
(i) 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.
See Schedule C
See Schedule D
Part 5—Hours of Work and Related Matters
25.1 38 hour week
Subject to this award an employee will work an average of 38 ordinary hours each week as directed by the employer.
25.2 Ordinary hours of work
An employee’s ordinary hours of work will be worked:
(a) on any day of the week Monday to Friday inclusive; and
(b) between the hours of 6.30 am and 6.00 pm; or
(c) between such spread of hours as is agreed between the employer and the majority of the employees in the section of the quarry or operation concerned,
or if the employee is a shiftworker:
(d) any day of the week Monday to Friday inclusive; or
(e) by agreement with the majority of the employees in the section of the quarry or operation concerned on any day of the week Monday to Sunday inclusive.
25.3 Maximum 10 ordinary hour day
Unless it is agreed between the employer and the majority of the employees in the section of the quarry or operation concerned, an employee’s ordinary hours of work must not exceed ten hours on any day.
25.4 Changing from shiftwork to day work and vice versa
Unless otherwise agreed, the employer may direct an employee to change from regularly working day work to regularly working shiftwork (or vice versa) by giving the employee one month’s notice in writing and the employee will then work their ordinary hours on the shifts/days the employee has been rostered to work.
The employer must give an employee a roster for working their ordinary hours at least seven days in advance.
25.6 Change to rosters
Despite clause 25.5, if due to unforeseen circumstances the employer needs to change an employee’s roster to keep the quarry or operation operating effectively the employer may change the employee’s roster:
(a) upon giving the employee no less than notice on the previous day of any such change if the employee is a day worker; or
(b) upon giving the employee no less than notice on the previous day of any such change if the employee is a shiftworker provided that if the employee is given less than seven days notice the employee will continue to be paid their shift penalties for the balance of the such seven days even if the employee is transferred to day work.
25.7 Afternoon shifts
If the employee is rostered to work an afternoon shift, the employee must be paid an afternoon shift allowance of 15% extra for such shift.
25.8 Night shift
If the employee is rostered to work a night shift, the employee must be paid a night shift allowance of 15% extra for such shift. Where an employee works permanent night shifts, a shift allowance of 30% extra is payable.
25.9 Saturday shifts
If an employee works a shift, part of which is between midnight on Friday and midnight on Saturday, the employee must be paid at the rate of time and a half for the first two hours and double time thereafter and such extra rate will be in substitution for and not cumulative upon the shift allowance.
25.10 Sunday shifts
If an employee works a shift, part of which is on a Sunday, the employee must be paid at the rate of double time and such extra rate will be in substitution for and not cumulative upon the shift allowance.
25.11 Public holiday shifts
If an employee works a shift, part of which is on a public holiday, the employee must be paid at the rate of double time and one half and such extra rate will be in substitution for and not cumulative upon the shift allowance.
25.12 Method of working the 38 hour week
The method of working the 38 hour week will be arranged by the employer fixing a roster:
(a) with one work day in the fourth week of a four week work cycle as a rostered day off (RDO) on which the employee will be off work;
(b) with two RDOs on which the employee may be rostered off for two half days during a particular four week work cycle;
(c) for the employee to work their 38 ordinary hours each week in a fortnight, such that the employee is rostered off work for one day each fortnight; or
(d) for the employee to work less than eight ordinary hours on each day.
25.13 Rostered days off (RDOs)
(a) RDOs will be taken as a paid day off.
(b) RDOs on public holidays
When a rostered day off falls on a public holiday as prescribed in clause 32—Public holidays the next working day will be taken instead of the rostered day off unless an alternative day is agreed to between the employee and the employer.
(c) RDOs accrual
Each day of paid leave taken and any public holiday occurring during any cycle of four weeks will be regarded as a day worked for the purposes of accruing a rostered day off.
(d) Accumulation of RDOs
Rostered days off may be:
(i) accumulated for a specific purpose (taking with annual leave etc) and taken at a time agreed by the employee and the employer (such agreement to be made in writing); or
(ii) accumulated for no specific purpose in which case they will:
• be taken on at least 24 hours notice on a day that does not disrupt the satisfactory operation of the quarry or operation; or
• by agreement with between the employer and employee, be paid out by the employer to the employee at the rate of 7.6 ordinary hours pay per rostered day off accumulated but not taken as at 31 January each year.
(e) Working on RDOs
Where an employee is required to work on the employee’s rostered day off, the employee will be afforded the choice of another day off to be taken or the employee will be paid at the rate of double time.
An employee will not be required to work for more than five ordinary hours of work without a break for a meal which will be unpaid. Provided that an employee and the employer may agree to extend the five ordinary hours before taking a break up to six.
The time of taking a scheduled meal break may be altered by agreement between an employee and the employer or by the employer but only if it is necessary to maintain continuity of operations.
26.3 Staggering breaks
The employer may stagger the time of taking a meal break to meet operational requirements.
26.4 Meal breaks for shiftworkers
Despite the provisions of this clause, if the employee is a shiftworker the employee must be allowed a 30 minute paid meal break during each shift, which will be counted as time worked.
26.5 Working through a meal break
Except as provided for in clauses 26.1 and 26.2, the employee must be paid at the rate of time and one half of ordinary time for all work done during their meal break and thereafter until a meal break is taken.
27.1 Daily break
An employee must be given a paid rest break of 10 minutes each day.
27.2 Staggering
The employer may stagger the time of taking a rest break to meet operational requirements.
27.3 Continuous operation
The time of taking a scheduled rest break may be altered by agreement between the employee and the employer or by the employer but only if it is necessary to maintain continuity of operations.
27.4 Shiftworkers
In the case of shiftworkers the rest break may be combined (by the employer) with the paid meal break so as to enable a 40 minute paid meal break.
28.1 Payment
Subject to clause 28.3 and 28.4, for all work performed by an employee outside of and/or in excess of their ordinary hours the employee must be paid at the rate of time and one half for the first two hours and double time thereafter. Provided that, for work done on a Sunday an employee must be paid at the rate of double time with a minimum payment for four hours’ work.
Such double time is to continue until the completion of the overtime worked.
28.2 Day stands alone
Except as provided in clause 28.3, in computing overtime each day’s work will stand alone.
(a) Where overtime work is necessary it will wherever reasonably practicable, be so arranged that the employee has at least ten consecutive hours off duty between the work of successive days.
(b) Where the employee works so much overtime between the end of their ordinary work on one day and the commencement of their ordinary work on the next day that they have not had at least 10 consecutive hours off duty between those times they will be released after completion of such overtime until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(c) Where, if on the instruction of the employer, the employee resumes or continues work without having had such 10 consecutive hours off duty, the employee will be paid at double their ordinary time rate of pay until they are released from duty for such period and the employee will then be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
28.4 Eight hour rest period for shiftworkers
The provisions of clause 28.3 will apply in the case of shiftworkers who rotate from one shift to another as if eight hours were substituted for 10 hours when overtime is worked:
(a) for the purpose of changing shift rosters; or
(b) where a shiftworker does not report for duty.
28.5 Call-back
(a) If an employee is recalled to work overtime after leaving the quarry or operation (whether notified before or after leaving) the employee must be paid for a minimum of four hours’ work (whether worked or not) or where the employee has been paid for standing by the employee must be paid a minimum of three hours’ pay at the appropriate rate.
(b) This clause will not apply in cases where it is customary for the employee to return to the quarry or operation to perform a specific job outside their ordinary working hours or where the overtime is continuous (subject to a reasonable meal break) with the completion or commencement of ordinary working time.
(c) Overtime worked in the circumstances set out above, will not be regarded as overtime for the purposes of clause 28.6 when the actual time worked is less than three hours on each such recall.
(d) If the employee is directed to hold themself in readiness to work after their ordinary hours the employee must be paid stand-by time, at ordinary rates of pay, until released.
If an employee is required to work overtime for two hours after their normal ceasing time (and for each four hours thereafter) the employee must be provided with a 30 minute break without loss of pay, provided that overtime work continues after any such break.
28.7 Weekend overtime breaks
Where overtime is worked on a Saturday or Sunday and it continues after 12 noon, the employee must be given a paid break for a meal of 30 minutes between 12 noon and 1.00 pm, provided that the work continues after the meal break.
28.8 Weekend minimum
If an employee is required to work overtime on a Saturday or Sunday the employee must be given at least four hours’ work or receive four hours’ pay.
28.9 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary time hours will be taken at the ordinary time rate; that is an hour for each hour worked.
(c) If, having elected to take time as leave in accordance with clause 28.9(a), the leave is not taken for whatever reason, payment for time accrued at overtime rates will be made at the expiry of the 12 month period or on termination.
(d) Where no election is made in accordance with clause 28.9(a), the employee must be paid overtime rates in accordance with this award.
Part 6—Leave and Public Holidays
29.1 Annual leave is provided for in the NES.
29.2 Seven day shiftworkers
In addition to the leave provided for in Division 5 of the NES, shiftworkers who are rostered to work regularly on Sundays and holidays will be allowed an additional one week’s leave; provided that if, during the year of employment, an employee has served for only a portion of it as a seven day shiftworker, the additional leave will be one day for every 36 ordinary shifts worked as a seven day shiftworker.
29.3 Leave in advance
By agreement between an employer and an employee a period of annual leave may be taken in advance of the entitlement accruing. Provided that if leave is taken in advance and the employment terminates before the entitlement has accrued the employer may make a corresponding deduction from any money due to the employee on termination.
(a) Where an employer intends temporarily to close (or reduce to nucleus) the quarry, operation or a section of the quarry or operation for the purpose, amongst others, of allowing annual leave to the employees concerned or a majority of them, the employer may give those employees one month’s notice in writing of an intention to apply the provisions of this clause.
(b) In the case of any employee employed after notice has been given, notice must be given to that employee on the date they are offered employment.
(c) An employee who has accrued sufficient annual leave at the date of closing in accordance with clause 29.4(a), must be:
(i) given annual leave commencing from the date of closing; and
(ii) paid 1/12th of their ordinary pay for any period of employment between accrual of the employee’s right to the annual leave and the date of closing.
(d) Any employee who has not accrued sufficient annual leave at the date of closing must be:
(i) given leave without pay from the date of closing; and
(ii) paid for any public holiday during such leave for which the employee is entitled to payment.
29.5 Leave must be taken within 18 months
Annual leave must be taken within 18 months of the entitlement accruing. For the purpose of ensuring accrued annual leave is taken within that period and in the absence of agreement as provided for in s.33 of the NES, an employer may direct an employee to take a period of annual leave from a particular date provided the employee is given at least 28 days notice.
29.6 Payment and loading
Before the start of an employee’s annual leave the employer must pay the employee:
(a) instead of the base rate of pay referred to in s.35(1) of the NES, the amount the employee would have earned for working their normal hours, exclusive of overtime or other penalties or premiums, had they not been on leave; and
(b) an additional loading of 17.5% of the employee’s minimum weekly rate prescribed in clause 17—Minimum wages. Shiftworkers receive 17.5% or their shift penalties, whichever is greater.
30. Personal/carer’s leave and compassionate leave
Personal/carer’s leave and compassionate leave are provided for in the NES.
Community service leave is provided for in the NES.
32.1 Public holiday entitlements are provided for in the NES.
32.2 Substitution of public holidays by agreement
By agreement between the employer and the majority of employees in an enterprise, another day may be substituted for a public holiday
32.3 Payment for work on a public holiday
If an employee works on any of the holidays arising from this clause or any day substituted for such holidays the employee must be paid at the rate of double time and one half of their ordinary rate of pay.
Schedule A—Classification Descriptors
A Grade 1 employee is an employee who is undertaking training to become competent in the Basic Quarry competency.
Grade 2
A Grade 2 employee:
(a) is an employee who is competent in the Basic Quarry competency;
(b) performs general labouring duties; and
(c) is undertaking training to be assessed as competent in one or more core competencies in accordance with clause B.1.
Grade 3
A Grade 3 employee:
(d) is an employee who is competent in the Basic Quarry competency;
(e) performs general labouring duties;
(f) is competent in one core competency and performs it as required by the employer; and
(g) is undertaking training to be assessed as competent in one or more core competencies in accordance with clause B.1.
Grade 4
A Grade 4 employee:
(h) is an employee who is competent in the Basic Quarry competency;
(i) performs general labouring duties;
(j) is competent in two core competencies and performs them as required by the employer; and
(k) is undertaking training to be assessed as competent in one or more core competencies in accordance with clause B.1.
Grade 5
A Grade 5 employee:
(l) is an employee who is competent in the Basic Quarry competency;
(m) performs general labouring duties;
(n) is competent in three core competencies and performs them as required by the employer; and
(o) is undertaking training to be assessed as competent in one or more core competencies in accordance with clause B.1.
Grade 6
A Grade 6 employee:
(p) is an employee who is competent in the Basic Quarry competency;
(q) performs general labouring duties; and
(r) is competent in at least five core competencies and performs them as required by the employer.
B.1 Training
B.1.1 Structured Training and the AQTF
All training shall be structured competency based training (and assessment) and if requested by the employee or required by the employer the employee shall complete structured training and assessment under the Australian Quality Training Framework, in accordance with nationally recognised training packages (aligned to the relevant core competencies in clause B.2 below) as approved by the Industry Skills Council, currently “SkillsDMC”.
This may require one or more packages to be completed for each core competency or element of a core competency.
B.1.2 Training Programs
An employer shall prepare a training program for an employee in consultation with them that is consistent with their operational needs setting out:
(a) any core competencies, in addition to those already held, to be acquired;
(b) the process by which the employee will acquire them (Skills Recognition (formerly RCC or RPL), on the job training, off the job training, mentor program, etc); and
(c) an indicative timetable for acquiring them.
B.2 Core Competencies
The core competencies referred to in Schedule A and Schedule B, clause B.1 are set out in clauses B.2.1 to B.2.13 inclusive. Excluding the core competency set out in clause B.2.1, if an operation does not perform the work associated with a particular core competency it shall not be used for the purposes of Schedule A – Classification Descriptors or Schedule B – Core Competencies, clause B.1.
B.2.1 Basic Quarry Competency
An employee must be competent in the following elements:
(a) Work safely & follow OHS policies and procedures;
(b) Conduct focal risk control;
(c) Communicate in the workplace;
(d) Contribute to quality work outcomes; and
(e) Operate light vehicles.
B.2.2 Crushing Plant Operation
An employee must be competent in the following elements:
(a) Conduct crushing and screening plant operations;
(b) Operate programmable logic control systems;
(c) Operate medium vehicles; and
(d) Conduct minor repairs and maintenance.
B.2.3 Front End Loader Operation
An employee must be competent in the following elements:
(a) Conduct face loader operations;
(b) Conduct sales loader operations;
(c) Service and handover front end loaders;
(d) Operate medium vehicles;
(e) Stockpile, load and dispatch product; and
(f) Service quarry plant, vehicles and equipment.
B.2.4 Excavator Operation
An employee must be competent in the following elements:
(a) Conduct hydraulic shovel/excavators operations;
(b) Service and handover of hydraulic shovel/excavators;
(c) Operate medium vehicles; and
(d) Service quarry plant, vehicles and equipment.
B.2.5 Haul Truck Operation (bin truck, water truck, off road haul truck)
An employee must be competent in the following elements:
(a) Conduct haul truck operations;
(b) Conduct bulk water truck operations;
(c) Service and handover of haul trucks;
(d) Operate medium vehicles; and
(e) Service quarry plant, vehicles and equipment.
B.2.6 Weighbridge Operation
An employee must be competent in the following elements:
(a) Conduct weighbridge operations; and
(b) Conduct minor repairs and maintenance.
B.2.7 Laboratory Operation
An employee must be competent in the following elements:
(a) Conduct Site Laboratory operations;
(b) Conduct sampling operations; and
(c) Conduct minor repairs and maintenance.
B.2.8 Wash Plant Operation
An employee must be competent in the following elements:
(a) Conduct sand wash plant operations;
(b) Operate programmable logic control systems;
(c) Operate medium vehicles; and
(d) Conduct minor repairs and maintenance.
B.2.9 Drilling
An employee must be competent in the following elements:
(a) Conduct drilling operations;
(b) Operate medium vehicles; and
(c) Conduct minor repairs and maintenance.
B.2.10 Shotfiring
An employee must be competent in the following elements:
(a) Conduct shotfiring operations;
(b) Conduct blast survey;
(c) Operate medium vehicles; and
(d) Conduct minor repairs and maintenance.
B.2.11 Quarry Development
An employee must be competent in the following elements:
(a) Conduct dozer operations;
(b) Conduct scraper operations;
(c) Conduct grader operations;
(d) Operate medium vehicles; and
(e) Service quarry plant, vehicles and equipment.
B.2.12 Miscellaneous Support Equipment
An employee must be competent in the following elements:
(a) Conduct non slewing crane operations;
(b) Conduct dogging operations;
(c) Conduct gantry crane operations; and
(d) Conduct minor repairs and maintenance.
B.2.13 Dredge Operation
An employee must be competent in the following elements:
(a) Conduct dredge operations; and
(b) Service quarry plant, vehicles and equipment.
Schedule C—Supported Wage System
C.1 This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.
C.2 In this schedule:
approved assessor means a person accredited by the management unit established by the Commonwealth under the supported wage system to perform assessments of an individual’s productive capacity within the supported wage system
assessment instrument means the tool provided for under the supported wage system that records the assessment of the productive capacity of the person to be employed under the supported wage system
disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, 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 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 Education, Employment and Workplace Relations that records the employee’s productive capacity and agreed wage rate
C.3 Eligibility criteria
C.3.1 Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.
C.3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.
C.4 Supported wage rates
C.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:
Assessed capacity (clause C.5) % |
Relevant minimum wage % |
10 |
10 |
20 |
20 |
30 |
30 |
40 |
40 |
50 |
50 |
60 |
60 |
70 |
70 |
80 |
80 |
90 |
90 |
C.4.2 Provided that the minimum amount payable must be not less than $69 per week.
C.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.
C.5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the Supported Wage System by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.
C.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.
C.6 Lodgement of SWS wage assessment agreement
C.6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with the Commission.
C.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by the Industrial Registrar to the union by certified mail and the agreement will take effect unless an objection is notified to the Commission within 10 working days.
C.7 Review of assessment
The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the supported wage system.
C.8 Other terms and conditions of employment
Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.
C.9 Workplace adjustment
An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.
C.10 Trial period
C.10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.
C.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.
C.10.3 The minimum amount payable to the employee during the trial period must be no less than $69 per week.
C.10.4 Work trials should include induction or training as appropriate to the job being trialled.
C.10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause C.5.