MA000005 PR988391 |
|
ORDER |
Workplace Relations Act 1996
s.576E – Procedure for carrying out award modernisation process
HAIR AND BEAUTY INDUSTRY AWARD 2010
(AM2008/10)
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 11 SEPTEMBER 2009 |
1. Further to the decision issued by the Commission on 2 September 2009 [[2009] AIRCFB 800], the Hair and Beauty Industry Award 2010 [MA000005 PR985115] is varied by incorporating transitional provisions in clause 2 and Schedule A.
2. The order commences on 1 January 2010.
3. The award as varied is attached.
BY THE COMMISSION:
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code G>
Hair and Beauty Industry Award 2010
The above award was first made on 19 December 2008 [PR985115]
This consolidated version of the award includes variations made on 11 September 2009 [PR988391]
NOTE: Transitional provisions may apply to certain clauses – see clause 2 and Schedule A
Table of Contents
[Varied by PR988391]
Part 1—Application and Operation
1. Title
2. Commencement and transitional
3. Definitions and interpretation
4. Coverage
5. Access to 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 employment
14. Termination of employment
15. Redundancy
Part 4—Classification and Wage Rates
16. Classifications
17. Minimum weekly wages
18. Junior rates
19. Apprentices and trainees
20. Allowances
21. District allowances
22. Accident pay
23. Superannuation
24. Payment of wages
25. Supported wage
26. Training wage
Part 5—Ordinary Hours of Work
27. Hours of work
28. Notification of rosters
29. Overtime and penalties
30. Breaks
Part 6—Leave and Public Holidays
31. Annual leave
32. Personal/carer’s leave and compassionate leave
33. Public holidays
34. Community service leave
Schedule A—Transitional Provisions
Schedule B—Classifications
Schedule C—Supported Wage System
Schedule D—National Training Wage
Part 1—Application and Operation
This award is the Hair and Beauty Industry Award 2010.
2. Commencement and transitional
[Varied by PR988391]
2.1 This award commences on 1 January 2010.
[2.2–2.6 inserted by PR988391]
2.2 The monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment.
2.3 This award contains transitional arrangements which specify when particular parts of the award come into effect. Some of the transitional arrangements are in clauses in the main part of the award. There are also transitional arrangements in Schedule A. The arrangements in Schedule A deal with:
• minimum wages and piecework rates
• casual or part-time loadings
• Saturday, Sunday, public holiday, evening or other penalties
• shift allowances/penalties.
2.4 Neither the making of this award nor the operation of any transitional arrangements is intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay as a result of the making of this award or the operation of any transitional arrangements, Fair Work Australia may make any order it considers appropriate to remedy the situation.
2.5 Fair Work Australia may review the transitional arrangements in this award and make a determination varying the award.
2.6 Fair Work Australia may review the transitional arrangements:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or
(d) in relation to outworker arrangements, on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the arrangements relate.
3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
Act means the Workplace Relations Act 1996 (Cth)
Commission means the Australian Industrial Relations Commission or its successor
employee has the meaning in the Act
employer has the meaning in the Act
enterprise award has the meaning in the Act
hair and beauty industry means the performing and/or carrying out, in any hairdressing salon, of shaving, haircutting, hairdressing, hair trimming, facial waxing, hair curling or waving, beard trimming, face or head massaging, shampooing, wig-making, hair working, hair dyeing, manicuring, eye-brow waxing or lash tinting, or any process or treatment of the hair, head or face carried on, using or engaged in a hairdressing salon, and includes the sharpening or setting of razors in a hairdressing salon
NAPSA means notional agreement preserving a State award and has the meaning in the Act
NES means National Employment Standards
standard rate means the minimum weekly wage for a Hair and Beauty Employee Level 3 in clause 17. Where an allowance is provided for on an hourly basis, a reference to standard rate means 1/38th of the weekly wage referred to above
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
4.1 This award covers employers throughout Australia in the hair and beauty industry and their employees in the classifications listed in clause 17 to the exclusion of any other modern award. The award does not cover employees who perform hair and beauty work in the general retailing, theatrical, amusement and entertainment industries.
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 with respect to any employee who is covered by the enterprise award.
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 employee are covered by an award with occupational coverage.
5. Access to 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;
(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) not disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment.
7.4 For the purposes of clause 7.3(b) the agreement will be taken not to disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment if:
(a) the agreement does not result, on balance, in a reduction in the overall terms and conditions of employment of the individual employee under this award and any applicable agreement made under the Act, as those instruments applied as at the date the agreement commences to operate; and
(b) the agreement does not result in a reduction in the terms and conditions of employment of the individual employee under any other relevant laws of the Commonwealth or any relevant laws of a State or Territory.
7.5 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 does not disadvantage the individual employee in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
7.6 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
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 of 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 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 representative, 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 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 under this award will be employed in one of the following categories:
• full-time employees;
• part-time employees; or
• casual employees.
10.2 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 full-time, part-time or casual.
A full-time employee is an employee who is engaged to work an average of 38 hours per week.
12.1 A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) has reasonably predictable hours of work.
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;
• the actual starting and finishing times of each day;
• that any variation will be in writing;
• that the minimum daily engagement is three hours; and
• the times of taking and the duration of meal breaks.
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 to it will be retained by the employer and a copy given by the employer 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.
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. Overtime is payable for all hours worked in excess of the agreed number of hours.
12.8 Rosters
(a) A part-time employee’s roster, but not the agreed number of hours, may be altered by the giving of seven days notice in writing or in the case of an emergency, 48 hours, by the employer to the employee.
(b) Rosters will not be changed from week to week, or fortnight to fortnight, nor will they be changed to avoid any award entitlements.
12.9 Award entitlements
A part-time employee will be entitled to payments in respect of annual leave, public holidays, sick leave and compassionate leave arising under the NES or this award on a proportionate basis. Subject to the provisions contained in this clause all other provisions of the award relevant to full-time employees will apply to part-time employees.
12.10 Conversion of existing employees
No full-time or casual employee will be transferred by an employer to part-time employment without the written consent of the employee. Provided that where such transfer occurs all leave entitlements accrued will be deemed to be continuous. A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer and recorded in writing.
13.1 A casual employee is an employee engaged as such.
13.2 For all work between 7.00 am and 9.00 pm Monday to Friday, a casual will be paid both the hourly rate for a full-time employee and an additional 25% of the ordinary hourly rate.
13.3 For all work performed outside the hours in clause 27.2, except Sundays, a casual employee will be paid the hourly rate for a full-time employee in this award plus 50%. For Sundays, the additional loading will be 100%.
13.4 The following provisions of this award do not apply to casuals:
• Clause 14—Termination of employment;
• Clause 15—Redundancy;
• Clause 20.2—Meal allowances;
• Clause 20.4—Excess travelling costs;
• Clause 20.5—Travelling time reimbursement;
• Clause 20.8—Transport of employees’ reimbursement;
• Clause 25—Hours of work;
• Clause 26—Notification of rosters; and
• Clause 29.2(a)—Overtime and penalty rates.
13.5 Casual employees will be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.
13.6 The minimum daily engagement of a casual is three hours.
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 the 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. 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 Employees 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) The 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) This clause ceases to operate on 31 December 2014.
Part 4—Classification and Wage Rates
[Sched A renumbered as Sched B by PR988391]
16.1 All employees covered by this award must be classified according to the structure set out in Schedule B. Employers must advise their employees in writing of their classification and of 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.
Classifications |
Per week |
Level 1 |
600.00 |
Level 2 |
615.00 |
Level 3 |
637.60 |
Level 4 |
650.00 |
Level 5 |
670.00 |
Junior employees will be paid the following percentage of the appropriate wage rate in clause 17:
Age |
% of adult rate of pay |
16 years of age and under |
50 |
17 years of age |
75 |
18 years of age |
100 |
19.1 The minimum award rates of pay for apprentices are:
Year of apprenticeship |
% of standard rate |
1st year–first 3 months |
35 |
1st year–thereafter |
45 |
2nd year |
55 |
3rd year |
77 |
19.2 The minimum award rates of pay for pre-apprentices are:
Year of apprenticeship |
% of standard rate |
1st 6 months |
45 |
Next 12 months |
55 |
Next 12 months |
77 |
19.3 The minimum rate of pay for full-time hairdressing trainees and graduates are:
Year of study |
% of standard rate |
Less than 1000 hours of full-time accredited training |
55 |
At least 1000 hours but less than 2000 hours of full-time accredited training |
75 |
Hairdressing Graduate (first 12 months) |
92.5 |
20.1 Manager’s allowance
An employee in charge of a hair and/or beauty establishment for a full week will be paid an allowance of 5% of the standard rate for that week.
(a) An employee required to work more than one hour of overtime without being given 24 hours notice after the employee’s ordinary time of ending work will be either provided with a meal or paid a meal allowance of $14.30. Where such overtime work exceeds four hours a further meal allowance will be paid.
(b) No meal allowance will be payable where any employee could reasonably return home for a meal within the period allowed.
20.3 Special clothing
Where the employer requires an employee to wear any protective or special clothing such as a uniform dress or other clothing then the employer will reimburse the employee for any cost of purchasing such clothing and the cost of replacement items, when replacement is necessary due to normal wear and tear. This provision will not apply where the special clothing is supplied and/or paid for by the employer.
Where an employee is required by their employer to move temporarily from one branch or shop to another for a period not exceeding three weeks, all additional transport costs so incurred will be reimbursed by the employer.
20.5 Travelling time reimbursement
(a) An employee who on any day is required to work at a place away from their usual place of employment, for all time reasonably spent in reaching and returning from such place (in excess of the time normally spent in travelling from their home to their usual place of employment and returning), will be paid travelling time and also any fares reasonably incurred in excess of those normally incurred in travelling between their home and their usual place of employment.
(b) Where the employer provides transport from a pick up point, an employee will be paid travelling time for all time spent travelling from such pick up point and return thereto.
(c) The rate of pay for travelling time will be the ordinary time rate except on Sundays and holidays when it will be time and half.
20.6 Transfer of employee reimbursement
Where any employer transfers an employee from one township to another, the employer will be responsible for and will pay the whole of the moving expenses, including fares and transport charges, for the employee and the employee’s family.
20.7 Transport allowance
Where an employer requests an employee to use their own motor vehicle in the performance of their duties such employee will be paid an allowance of $0.74 per kilometre.
20.8 Transport of employees’ reimbursement
(a) Where an employee commences and/or ceases work after 10.00 pm on any day or prior to 7.00 am on any day and the employee’s regular means of transport is not available and the employee is unable to arrange their own alternative transport, the employer will reimburse the employee for the cost of a taxi fare from the place of employment to the employee’s usual place of residence. This will not apply if the employer provides or arranges proper transportation to and or from the employee’s usual place of residence, at no cost to the employee.
(b) Provided always that an employee may elect to provide their own transport.
20.9 First aid allowance
Where an employee who holds an appropriate first aid qualification is appointed by the employer to perform first aid duty they will be paid an extra of 1.3% of the standard rate each week.
20.10 Adjustment of expense related allowances
At the time of any adjustment to the standard rate, each expense related allowance must 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 |
Special allowance |
Clothing and footwear group |
Transport allowance |
Private motoring sub-group |
21.1 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):
(a) 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
(b) that would have entitled the employee to payment of a district allowance.
21.2 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):
(a) 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
(b) that would have entitled the employee to payment of a district allowance.
21.3 This clause ceases to operate on 31 December 2014.
22.1 Subject to clause 22.2 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.
22.2 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.
22.3 This clause does not operate to diminish an employee’s entitlement to accident pay under any other instrument.
22.4 This clause ceases to operate on 31 December 2014.
23.1 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.
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.
23.3 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 23.2.
(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 23.3(a) or (b) no later than 28 days after the end of the month in which the deductions authorised under clauses 23.3(a) or (b) was made.
23.4 Superannuation fund
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 23.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 23.2 and pay the amount authorised under clauses 23.3(a) or (b) to one of the following superannuation fund:
(a) Retail Employees Superannuation Trust (REST); or
(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.
Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided for in clause 23.2 and pay the amount authorised under clauses 23.3(a) or (b):
(a) while the employee is on any paid leave.
(b) for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to work related injury or work related illness provided that:
(i) the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with statutory requirements; and
(ii) the employee remains employed by the employer.
Wages will be paid weekly or fortnightly according to the actual hours worked each week or fortnight or may be averaged over a period of a fortnight.
[Sched B renumbered as Sched C by PR988391]
See Schedule C
[Sched C renumbered as Sched D by PR988391]
See Schedule D
27.1 This clause does not operate to limit or increase or in any way alter the trading hours of any employer as determined by the relevant State or Territory legislation.
(a) Ordinary hours must not exceed an average of 38 per week and may be worked within the following spread of hours:
Days |
Spread of hours |
Monday to Friday, inclusive |
7.00 am–9.00 pm |
Saturday |
7.00 am–6.00 pm |
Sunday |
10.00 am–5.00 pm |
(b) Hours of work on any day will be continuous, except for rest periods and meal breaks.
27.3 Maximum hours on a day
An employee may be rostered to work up to a maximum of nine hours on any day, except that an employee may be rostered to work one 10.5 hour day per week and by mutual agreement in writing, a second 10.5 hour day.
(a) The employer will notify staff of:
(i) the number of ordinary hours to be worked each week;
(ii) the days of the week on which work is to be performed; and
(iii) the commencing and ceasing time of work for each day of the week.
(b) Due to unexpected operational requirements, an employee’s roster for a given day may be changed by mutual agreement with the employee prior to the employee arriving for work.
(c) Unless otherwise mutually agreed, an employee who elects to work Sundays as part of ordinary hours is to be rostered off at least one Sunday every four weeks.
29.1 Reasonable overtime
(a) Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime at overtime rates in accordance with the provisions of this clause.
(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
(i) any risk to employee health and safety;
(ii) the employee’s personal circumstances including any family responsibilities;
(iii) the needs of the workplace or enterprise;
(iv) the notice (if any) given by the employer of the overtime and by the employee of their intention to refuse it; and
(v) any other relevant matter.
29.2 Overtime and penalty rates
(a) Overtime hours worked in excess of the ordinary number of hours of work prescribed in clause 27.2 are to be paid at time and a half for the first three hours and double-time thereafter.
(b) Saturday work
A loading of 33% will apply for ordinary hours of work for full-time, part-time and casual employees within the span of hours on a Saturday.
(c) Sunday work
A 100% loading will apply for all hours of work for full-time, part-time and casual employees on a Sunday.
29.3 Time off instead of payment
(a) Time off instead of payment for overtime may be provided if an employee so elects and it is agreed by the employer.
(b) Such time off instead of payment will be taken at a mutually convenient time and within four weeks of the overtime being worked or, where agreed between the employee and the employer, may be accumulated and taken as part of annual leave.
(c) Time off instead of payment will equate to the overtime rate i.e. if the employee works one hour overtime and elects to take time off instead of payment, the time off would equal one and a half hours or, where the rate of pay for overtime is double-time, two hours.
30.1 All full-time employees must be granted two rest periods of 10 minutes per day, one either side of the meal break. Rest periods are counted as time worked.
30.2 All part-time employees must receive at least one rest period if they work between four and seven hours.
30.3 All employees must be allowed a meal break of 45 minutes to 60 minutes after five hours work. By mutual agreement the meal break can be shortened to 30 minutes. Meal breaks do not count as time worked.
Part 6—Leave and Public Holidays
31.1 Annual leave is provided for in the NES.
31.2 Definition of shiftworker
For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven 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, seven days a week.
31.3 Annual leave loading
(a) During a period of annual leave an employee will receive a loading calculated on the rate of wage prescribed in clause 17 of this award. Annual leave loading payment is payable on leave accrued.
(b) The loading will be as follows:
(i) Day work
Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.
(ii) Shiftwork
Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates) whichever is the greater but not both.
31.4 Paid leave in advance of accrued entitlement
An employer may allow an employee to take annual leave either wholly or partly in advance before the leave has accrued. Where paid leave has been granted to an employee in excess of the employee’s accrued entitlement, and the employee subsequently leaves or is discharged from the service of the employer before completing the required amount of service to account for the leave provided in advance, the employer is entitled to deduct the amount of leave in advance still owing from any remuneration payable to the employee upon termination of employment.
31.5 Requirement to take leave notwithstanding terms of the NES
An employer may require an employee to take annual leave by giving at least four weeks’ notice in the following circumstances:
(a) as part of a close-down of its operations; or
(b) where more than eights weeks’ leave is accrued.
32. Personal/carer’s leave and compassionate leave
32.1 Personal/carer’s leave and compassionate leave are provided for in the NES.
32.2 Casual employees
(a) Casual employees are entitled to be unavailable for work or to leave work to care for a person who is sick and requires care and support or who requires care due to an emergency; and
(b) Such leave is unpaid. A minimum of 48 hours absence is allowed by right with additional absence by agreement.
33.1 Public holidays are provided for in the NES.
33.2 An employer and a majority of employees may agree to substitute another day for a public holiday. Where an agreement to substitute a day is made the following applies:
• If both days worked—employee paid public holiday on day elected by employee;
• If only actual public holiday worked—public holiday penalty applies; or
• If only a substituted day worked—public holiday penalty applies.
33.3 Work on a public holiday must be compensated by payment at the rate of double time and a half for full-time and casual employees.
Community service leave is provided for in the NES.
Schedule A—Transitional Provisions
[Sched A inserted by PR988391]
A.1 General
A.1.1 The provisions of this schedule deal with minimum obligations only.
A.1.2 The provisions of this schedule are to be applied when there is a difference, in money or percentage terms, between a provision in a transitional minimum wage instrument (including the transitional default casual loading) or an award-based transitional instrument on the one hand and an equivalent provision in a modern award on the other.
A.2 Minimum wages – existing minimum wage lower
A.2.1 The following transitional arrangements apply to an employer which, immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged
by a transitional minimum wage instrument and/or an award-based transitional instrument to pay a minimum wage lower than that in this award for any classification of employee.
A.2.2 In this clause minimum wage includes:
(a) a minimum wage for a junior employee, an employee to whom training arrangements apply and an employee with a disability;
(b) a piecework rate; and
(c) any applicable industry allowance.
A.2.3 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.
A.2.4 The difference between the minimum wage for the classification in this award and the minimum wage in clause A.2.3 is referred to as the transitional amount.
A.2.5 From the following dates the employer must pay no less than the minimum wage for the classification in this award minus the specified proportion of the transitional amount:
First full pay period on or after |
|
1 July 2010 |
80% |
1 July 2011 |
60% |
1 July 2012 |
40% |
1 July 2013 |
20% |
A.2.6 The employer must apply any increase in minimum wages in this award resulting from an annual wage review.
A.2.7 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
A.3 Minimum wages – existing minimum wage higher
A.3.1 The following transitional arrangements apply to an employer which, immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged
by a transitional minimum wage instrument and/or an award-based transitional instrument to pay a minimum wage higher than that in this award for any classification of employee.
A.3.2 In this clause minimum wage includes:
(a) a minimum wage for a junior employee, an employee to whom training arrangements apply and an employee with a disability;
(b) a piecework rate; and
(c) any applicable industry allowance.
A.3.3 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned.
A.3.4 The difference between the minimum wage for the classification in this award and the minimum wage in clause A.3.3 is referred to as the transitional amount.
A.3.5 From the following dates the employer must pay no less than the minimum wage for the classification in this award plus the specified proportion of the transitional amount:
First full pay period on or after |
|
1 July 2010 |
80% |
1 July 2011 |
60% |
1 July 2012 |
40% |
1 July 2013 |
20% |
A.3.6 The employer must apply any increase in minimum wages in this award resulting from an annual wage review. If the transitional amount is equal to or less than any increase in minimum wages resulting from the 2010 annual wage review the transitional amount is to be set off against the increase and the other provisions of this clause will not apply.
A.3.7 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
A.4 Loadings and penalty rates
For the purposes of this schedule loading or penalty means a:
• casual or part-time loading;
• Saturday, Sunday, public holiday, evening or other penalty;
• shift allowance/penalty.
A.5 Loadings and penalty rates – existing loading or penalty rate lower
A.5.1 The following transitional arrangements apply to an employer which, immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged
by the terms of the transitional default casual loading or an award-based transitional instrument to pay a particular loading or penalty lower than that in this award for any classification of employee.
A.5.2 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the transitional default casual loading or the loading or penalty in the relevant award-based transitional instrument for the classification concerned.
A.5.3 The difference between the loading or penalty in this award and the rate in clause A.5.2 is referred to as the transitional percentage.
A.5.4 From the following dates the employer must pay no less than the loading or penalty in this award minus the specified proportion of the transitional percentage:
First full pay period on or after |
|
1 July 2010 |
80% |
1 July 2011 |
60% |
1 July 2012 |
40% |
1 July 2013 |
20% |
A.5.5 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
A.6 Loadings and penalty rates – existing loading or penalty rate higher
A.6.1 The following transitional arrangements apply to an employer which, immediately prior to 1 January 2010:
(a) was obliged,
(b) but for the operation of an agreement-based transitional instrument would have been obliged, or
(c) if it had been an employer in the industry or of the occupations covered by this award would have been obliged
by the terms of an award-based transitional instrument to pay a particular loading or penalty higher than that in this award for any classification of employee.
A.6.2 Prior to the first full pay period on or after 1 July 2010 the employer must pay no less than the loading or penalty in the relevant award-based transitional instrument.
A.6.3 The difference between the loading or penalty in this award and the rate in clause A.6.2 is referred to as the transitional percentage.
A.6.4 From the following dates the employer must pay no less than the loading or penalty in this award plus the specified proportion of the transitional percentage:
First full pay period on or after |
|
1 July 2010 |
80% |
1 July 2011 |
60% |
1 July 2012 |
40% |
1 July 2013 |
20% |
A.6.5 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
A.7 Loadings and penalty rates – no existing loading or penalty rate
A.7.1 The following transitional arrangements apply to an employer not covered by clause A.5 or A.6 in relation to a particular loading or penalty.
A.7.2 Prior to the first full pay period on or after 1 July 2010 the employer need not pay the loading or penalty in this award.
A.7.3 From the following dates the employer must pay no less than the following percentage of the loading or penalty:
First full pay period on or after |
|
1 July 2010 |
20% |
1 July 2011 |
40% |
1 July 2012 |
60% |
1 July 2013 |
80% |
A.7.4 These provisions cease to operate from the beginning of the first full pay period on or after 1 July 2014.
[Sched A renumbered as Sched B by PR988391]
B.1 Hair and Beauty Employee Level 1 means:
(a) receptionist, salon assistant or short-term apprentice.
B.2 Hair and Beauty Employee Level 2 means:
(a) a make-up artist who holds a Certificate II in make-up services (or equivalent);
(b) a nail technician who holds a Certificate II in Nail Technology (or equivalent); or
(c) an unqualified beautician or cosmetologist.
B.3 Hair and Beauty Employee Level 3 means:
(a) a beautician who holds a Certificate III in Beauty Services (or equivalent); or
(b) a hairdresser who holds a Certificate III in Hairdressing (or equivalent).
B.4 Hair and Beauty Employee Level 4 means:
a Beauty Therapist who holds a Certificate IV in Beauty Therapy (or equivalent).
B.5 Hair and Beauty Employee Level 5 means:
(a) a Hairdresser who holds a Certificate IV (or equivalent);
(b) a Beauty Therapist who holds a Diploma in Beauty Therapy (or equivalent); or
(c) a Trichologist who is a hairdresser and holds a Certificate IV in Trichology (or equivalent).
Schedule C—Supported Wage System
[Sched B renumbered as Sched C by PR988391]
Schedule D—National Training Wage
[Sched C renumbered as Sched D byPR988391]