MA000052 PR988696 |
|
ORDER |
Workplace Relations Act 1996
s.576E – Procedure for carrying out award modernisation process
PORTS, HARBOURS AND ENCLOSED WATER VESSELS AWARD 2010
(AM2008/49)
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 4 SEPTEMBER 2009 |
Award Modernisation.
1. Further to the decision [[2009] AIRCFB 826] issued by the Commission on 4 September 2009, the following modern award is made:
Ports, Harbours and Enclosed Water Vessels Award 2010
2. The award is attached.
BY THE COMMISSION:
PRESIDENT
Ports, Harbours and Enclosed Water Vessels Award 2010
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. Types of employment
11. Termination of employment
12. Redundancy
Part 4—Minimum Wages and Related Matters
13. Minimum wages
14. Allowances
15. Accident pay
16. Payment of wages
17. Superannuation
Part 5—Hours of Work and Related Matters
18. Ordinary hours of work and rostering
19. Breaks
20. Overtime and penalty rates
21. Shiftwork
Part 6—Leave and Public Holidays
22. Annual leave
23. Personal/carer’s leave and compassionate leave
24. Community service leave
25. Public holidays
Part 1—Application and Operation
This award is the Ports, Harbours and Enclosed Water Vessels 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 Fair Work Act 2009 (Cth)
award-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
employee means a national system employee as defined in sections 13 and 30C of the Act
employer means a national system employer as defined in sections 14 and 30D of the Act
enterprise award-based instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
standard rate means the minimum weekly rate for a General Purpose Hand in clause 13
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 port, harbour and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:
(a) the Maritime Offshore Oil and Gas Award 2010;
(b) the Seagoing Industry Award 2010;
(c) the Port Authorities Award 2010;
(d) the Dredging Industry Award 2010;
(e) the Stevedoring Industry Award 2010;
(f) the Marine Towage Award 2010; and
(g) the Marine Tourism and Charter Vessels Award 2010.
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.
4.2 The award does not cover maintenance contractors covered by the following awards:
(a) the Manufacturing and Associated Industries and Occupations Award 2010; or
(b) the Electrical, Electronic and Communications Contracting Award 2010.
4.3 The award does not cover employees of a local government covered by another award.
4.4 The award does not cover an employee excluded from award coverage by the Act.
4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 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 Fair Work Australia.
9.3 The parties may agree on the process to be utilised by Fair Work Australia including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, Fair Work Australia 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 General
(a) Employees will be employed in one of the following categories:
(i) full-time employees;
(ii) part-time employees; or
(iii) casual employees.
(b) 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 employees.
10.2 Full-time employment
An employer may employ an employee on a full-time basis of 38 hours per week.
10.3 Casual employment
(a) A casual employee is an employee engaged as such.
(b) A casual employee for working within the ordinary hours of work pursuant to clause 18 will be paid per hour for the work performed plus 25% loading which incorporates the casual employees’ entitlements to annual leave, annual leave loading and any other rates and allowances contained in this award except overtime and shift allowances.
(c) Casual employees must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.
(d) On each occasion a casual employee is required to attend work they are entitled to a minimum payment for three hours work.
10.4 Part-time employees
(a) An employer may employ part-time employees in any classification in this award.
(b) A part-time employee is an employee who:
(i) has reasonably predictable hours of work; and
(ii) receives on a pro rata basis equivalent pay and conditions to those of full-time employees who do the same kind of work.
(c) At the time of engagement the employer and the part-time employee will agree in writing, on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
(d) Any agreed variation to the regular pattern of work will be recorded in writing.
(e) An employee is required to roster a regular part-time employee for a minimum of two consecutive hours on any shift.
(f) An employee who does not meet the definition of a regular part-time employee and who is not a full-time employee will be paid as a casual employee.
(g) All time worked in excess of the hours as mutually arranged, excluding any additional hours, will be overtime.
(h) A regular part-time employee employed under the provisions of this clause must be paid for ordinary hours worked on a pro rata basis of the full-time employee at the full-time employee rate.
(i) All leave accruals and separation entitlements of part-time employees will be calculated and paid on a pro rata basis of the full-time employee at the full-time rate of pay.
(j) Where an employee and their employer agree in writing, part-time employment may be converted to full-time and vice versa. If such an employee transfers from full-time to part-time (or vice versa), all accrued award and legislative entitlements will be maintained. Following transfer to part-time employment accrual will occur in accordance with the provisions relevant to part-time employment.
11.1 Notice of termination is provided for in the NES.
11.2 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.
11.4 Return to place of engagement
If the employment of any employee is terminated by the employer elsewhere than at the place of engagement, for any reason other than misconduct, the employer will be responsible for conveying the employee to the place of engagement.
12.1 Redundancy pay is provided for in the NES.
12.2 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.
12.3 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.
12.4 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 11.3.
(a) Subject to clause 12.5(b), an employee whose employment is terminated by an employer is entitled to redundancy pay in accordance with the terms of a notional agreement preserving a State award:
(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 Workplace Relations Act 1996 (Cth) 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 notional agreement preserving a State award 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—Minimum Wages and Related Matters
13.1 The minimum rates for each classification will be:
Classification |
Minimum weekly rate |
$ | |
Master |
751.30 |
Mate |
714.40 |
Engineer |
714.40 |
Classification |
Minimum weekly rate |
$ | |
General Purpose Hand, Deckhand, Greaser, Passenger Attendant, Turnstile Attendant, Boating Attendant, Host, Fireman, Trimmer, Linesman, Cook, Sailor, Able Seaman, Leading Hand |
674.70 |
Shipkeeper |
616.30 |
Crane Driver (under 20 tonnes) |
627.70 |
Crane Driver (over 20 tonnes) |
693.80 |
14.1 Bedding and other utensils
(a) When vessels are away during the night, the employer will supply a mattress, two blankets, two sheets, one pillow, one pillow slip, towel, soap, eating utensils, washing cloths and drying towels. Laundering to be the responsibility of the employer.
(b) On termination of employment an employee will be required to return to the employer all articles on issue to them.
14.2 Charge hands
(a) Charge hands will be paid an allowance of 3.26% of the standard rate per week. Charge hands not directly supervised by a foreman in the allocation of duties to employees will be paid an allowance of 4.85% of the standard rate per week.
14.3 Distant work
(a) A relieving employee other than a casual employee who is required to work at a place away from their normal place of work will be paid all additional fares involved and additional travelling time involved at the rate of single time; provided that no employee will be paid more than their ordinary day’s wages for any time not exceeding 24 hours spent travelling.
(b) A relieving employee including a casual employee who is temporarily transferred to a locality to carry out relieving duties, where it is necessary to sleep away from their home, will be provided with reasonable board and lodging or paid an allowance of 56.23% of the standard rate per week of seven days. In the case of broken parts of a week, the allowance will be all living expenses actually and reasonably incurred but not exceeding the rate of 8.00% of the standard rate per day.
14.4 Dual capacity allowance
An employee who is a holder of a Certificate of Competency as a Marine Motor Engineer will be paid an allowance of 0.58% of the standard rate for each day or part of a day during which they are required to use such a certificate. The allowance prescribed by this subclause will, when paid, be deemed to be part of the ordinary rate of wages for the purpose of calculating overtime, annual leave, sick leave and long service leave.
14.5 Protective clothing
On request an employee will be supplied by the employer with an oilskin, sou’wester, sea boots, overalls, gloves, hard hats, sunscreen lotion, safety glasses, safety shoes, sunglasses and ear protection devices for their own use when it is reasonably necessary to wear such protective clothing.
14.6 Uniforms
Where employees are required to wear uniforms, these will be provided by the employer at no cost to the employee or, instead thereof, the employer will pay to the employee the sum of 2.01% of the standard rate. Such uniforms will be laundered by the employer.
14.7 Compensation for loss of personal effects
If in the course of employment an employee should sustain damage to or loss of their personal effects by fire, explosion, foundering, shipwreck, collision, stranding or accident and where such damage was not caused by the employee’s own wilful neglect or fault or where such articles are lost through breaking or entering whilst securely stored at the employer’s direction in a room or building on the employer’s premises, vessel or work shop, the employer will compensate the employee to the extent of the damage or loss to a maximum of 210.30% of the standard rate.
14.8 Dirty work
(a) An employee called upon to perform work which is more dirty or offensive than would normally apply will be paid an additional 0.07% of the standard rate per hour for the time spent on such work.
(b) Provided that, instead of the above allowance, for all work an employee is required to perform alongside vessels in discharging alumina, petroleum, coke, sulphur, anhydrous ammonia and all phosphates, the employee will be paid an allowances of 0.18% of the standard rate per hour. Such employee will be eligible for this payment from the time the barge ties up to the vessel until the time it returns to its berth at the completion of the bunker.
14.9 Wet work
(a) Any employee working in water or wet places will be paid an extra allowance of 0.03% of the standard rate per hour.
(b) Wet places mean places where, in the performance of the work, the splashing of water or mud saturates the employee’s clothing, or where protection is not provided to prevent splashing or dripping sufficient to saturate their clothing, and will include wet material or wet ground in which it is impracticable for the employee wearing ordinary working boots to work without getting wet feet. Provided this clause will not apply to employees working on natural surface made wet by rain.
14.10 Unloading and loading garbage allowance
An employee called upon to work at loading or unloading garbage and or ashes or other like material will be paid an allowance of 0.07% of the standard rate per hour.
14.11 Slipway etc. allowance
A junior employee called to work on slipways, cleaning, scraping, painting or overhauling launches, barges, punts or any other floating plant will be paid an allowance of 0.08% of the standard rate per hour.
14.12 Bilge allowance
An employee required to work in the bilges will be paid an allowance of 0.11% of the standard rate per hour.
14.13 Chipping hammers
Employees using electric or pneumatic chipping hammers, wire brushing machine and sandblasting machine will be paid at the rate of 0.01% of the standard rate per hour in addition to any other ordinary or overtime rate for the time so occupied. Where a chipping hammer is being used in a confined space, suitable ventilation will be installed, if practicable, before work commences.
14.14 Expenses
The employer will reimburse an employee any expenses reasonably incurred by them in the service or interest of the employer, provided the employee is able to prove such expense by way of receipts.
14.15 First aid
An employee on becoming qualified as the holder of appropriate first aid qualifications such as a certificate from the St John Ambulance or its equivalent, and who is required by the employer to perform first aid duty will be paid an allowance of 1.70% of the standard rate per week.
14.16 Loading and discharge of cargo and supplies
An employee directed by the employer to load or discharge cargo including personal belongings of passengers, foodstuffs, beverages, or laundry, will be paid allowances as set out below when so engaged.
(a) On vessels including barges and landing craft transporting passengers and cargo including fuel and or water and roll on/roll off cargoes between the mainland and island resorts:
(i) 2.99% of the standard rate per week of five working days; and
(ii) where an employee is so engaged in any week in excess of five days they will be paid an additional 0.61% of the standard rate per day.
(b) On vessels (including barges and landing craft) transporting cargo only between the mainland and island resorts or between island resorts 5.23% of the standard rate per trip.
(c) On vessels engaged in overnight cruises one to six nights 2.01% of the standard rate per trip.
(d) On vessels engaged in overnight cruises over six nights 3.00% of the standard rate per trip.
(e) Provided that:
(i) an additional amount will not be payable where the loading or discharge is restricted to ships stores, fuel and or water cargoes, incidental personal belongings of passengers, or other items required on board exclusively for a day cruise; and
(ii) an employee may be required to supervise the loading or discharge (including roll on/roll off cargoes) where such work is part of their normal duties, without additional payment.
14.17 Meal allowances
When an employee who is required to work overtime in excess of one and a half hours after the usual ceasing time, without being notified the previous day, the employee will be provided with a suitable meal or be paid $12.90 instead. Should such overtime work continue for a further four hours, the employee will be provided with a second meal or be paid $12.90.
14.18 Waiting orders
An employee who is required by their employer to telephone for orders will:
(a) if an employee has a telephone installed at their home, be paid the annual rental of such telephone plus 16.51% of the standard rate per year for calls necessarily incurred by the employee for ringing for such orders. If the employee is required by their employer to have a phone installed, the installation fee will be paid by the employer; or
(b) an off-duty employee required to ring for orders other than on a phone provided totally or in part by the employer, will receive an allowance of 0.42% of the standard rate for each call.
14.19 Tools
Where employees are required to provide and use their own tools the employer will be responsible for the replacement of such tools broken, worn out, lost or stolen in the course of employment.
14.20 Towing
(a) Employees on any vessel either towing or carrying explosives will be paid an additional 0.29% of the standard rate for each day or part thereof while so engaged. This rate will be treated as part of the wages for all purposes of this award. For the purposes of this subclause, explosives means any material used as an explosive, such as gunpowder, blasting powder or materials, or any other material of like nature, but does not include petroleum products.
(b) Masters engaged in towing non self-propelled bunker barges having a carrying capacity of 400 tonnes or more, will be paid an additional amount of 0.27% of the standard rate for each day or part thereof while so engaged. Provided that moving such bunker barges at terminal points is not regarded as towing within this provision. This rate will be treated as part of the wages for all purposes of this award.
(c) Employees on vessels proceeding beyond the limits of a harbour, river or bay will whilst so engaged be paid their normal wage plus an allowance of 25% of their normal wage for each day with a minimum payment for four hours.
14.21 Ships stranded or wrecked or on fire
(a) If a ship in the course of a voyage becomes wrecked or stranded and the employees are called on for special efforts while the ship is still wrecked or stranded they will, for the time during which they so assist, be paid 1.71% of the standard rate per hour.
(b) For the purposes of this clause a ship will be deemed to be wrecked if, while at sea, it is so disabled it becomes a dangerous crisis and unable for the time being to continue its voyage in the ordinary course of its operations.
(c) Where a ship grounds in a tidal river or harbour and is refloated by ordinary means, with or without cargo, and without special work such as laying out anchors and handling hawsers being required of the employees, it will not be deemed to be wrecked or stranded within the meaning of clause 14.21(b).
14.22 Transport
(a) Where an employee commences or finishes work or is required for call-out between the hours of 11.00 pm and 6.00 am the employer will:
(i) supply them with a conveyance to or from their home whichever is appropriate;
(ii) pay them for time spent in reaching their home or travelling there from at the employee’s minimum weekly rate with a minimum of half an hour and a maximum of one hour; or
(iii) if by arrangement with their employer the employee uses their own motor vehicle they will receive an allowance of not less than $0.74 per kilometre.
(b) An employee required to use their own vehicle to travel to or from a starting or finishing point other than their regular starting or finishing point will be paid for the distance and time in excess of the distance or time involved in getting to their normal starting or finishing point, $0.74 per kilometre for the excess distance travelled and will be paid at their minimum weekly rate for the excess time occupied in travelling with a minimum of half an hour and a maximum of one hour.
(c) An employee not required to use their own motor vehicle and should in the ordinary course of employment begin their work for the day at a particular place, is required to finish work at a place other than that particular place will be paid any reasonable travelling expenses and will also be paid at overtime rates of pay for any travelling time occasioned beyond their ordinary travelling time.
14.23 Travelling to another port
(a) When an employee is required to travel from their home port to another port, time spent outside of their ordinary hours will be paid for as travelling time.
(b) The rate of pay for travelling time will be ordinary rates, except on Sundays and public holidays when it will be time and a half.
(c) The maximum travelling time to be paid for will be eight hours on any one day.
14.24 Travelling expenses
Where an employee is required to join or leave a vessel at a place other than their place of engagement, they will be entitled to a free passage and to be reimbursed all out of pocket expenses reasonably incurred by them. The free passage if by rail will be first class and will include a sleeping berth when the train includes sleeping berth accommodation. The free passage if by air is to be in commercial aircraft, first class if available.
14.25 Loading for duties outside normal work
An amount of 0.55% of the standard rate per day will be paid in excess of other wages and allowances to employees, for each day they are required to perform the duties of diving to clean glass bottom boats or to clear obstructions from boats propellers.
14.26 Living away from home
(a) Whilst away from the vessel’s home port, an employer will provide the employee with proper meals and accommodation and be responsible for payment of reasonable expenses actually incurred for such meals and accommodation ashore.
(b) Whilst at sea, every employee will be provided with proper meals, attendance, bedding and soap, and be supplied once a week with clean bed linen and twice a week with clean towels. The employer will be responsible for the laundering of linen and towels.
(c) Where it is the employer’s responsibility to provide the employee with proper meals and accommodation ashore, and the employer fails to do so, the employer will reimburse the employee for all costs incurred in relation to normal meals and charges incurred for a good standard of accommodation.
(d) Tea, sugar, milk and coffee will be provided on all vessels for employees at the employer’s expense.
14.27 Higher duties
An employee engaged for more than two hours during one day on duties carrying a higher rate than their ordinary classification will be paid the higher rate for such day. If engaged for two hours or less during one day they will be paid the higher rate for the time so worked.
14.28 Adjustment of expense related allowances
(a) At the time of any adjustment to the standard rate, each expense related allowance will be increased by the relevant adjustment factor. The relevant adjustment factor for this purpose is the percentage movement in the applicable index figure most recently published by the Australian Bureau of Statistics since the allowance was last adjusted.
(b) The applicable index figure is the index figure published by the Australian Bureau of Statistics for the Eight Capitals Consumer Price Index (Cat No. 6401.0), as follows:
Allowance |
Applicable Consumer Price Index figure |
Meal allowance |
Take away and fast foods sub-group |
Vehicle allowance |
Private motoring sub-group |
15.1 Subject to clause 15.2, an employee is entitled to accident pay in accordance with the terms of:
(a) a notional agreement preserving a State award 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.
15.2 The employee’s entitlement to accident pay under the notional agreement preserving a State award or the award is limited to the amount of accident pay which exceeds the employee’s entitlement to accident pay, if any, under any other instrument.
15.3 This clause does not operate to diminish an employee’s entitlement to accident pay under any other instrument.
15.4 This clause ceases to operate on 31 December 2014.
Wages will be paid weekly or fortnightly. Wages may be paid by cash or electronic funds transfer (EFT).
17.1 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.
17.3 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 17.2.
(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 17.3(a) or (b) no later than 28 days after the end of the month in which the deduction authorised under clauses 17.3(a) or (b) was made.
17.4 Superannuation fund
Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 17.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 17.2 and pay the amount authorised under clauses 17.3(a) or (b) to one of the following superannuation funds:
(a) Maritime Super;
(b) AMP Superannuation Savings Trust (MOST, AIMPE or MODIF); or
(c) 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.
Part 5—Hours of Work and Related Matters
18. Ordinary hours of work and rostering
18.1 This clause supplements Division 3 of the NES which deals with maximum weekly hours.
18.2 Span of hours
Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.
18.3 Rostering
Rostered days off will be so arranged that in each week two of such days will be consecutive except where the employer and the employee agree otherwise.
18.4 Avoidance of physical exhaustion
(a) An employee who has been on duty continuously, including meal breaks, for more than 18 hours will not be required by their employer to continue duty until they have had, for the purpose of rest, a period of 10 hours off duty.
(b) Should an employee work at the request of the employer after they have been on duty continuously, including meal breaks for more than 18 hours, they will be entitled to be paid at the rate of double time for the period of such duty in addition to any other payment due to them until such time as the 10 hours’ respite from duty commences.
(c) Employees will receive their full weekly rate notwithstanding any rest period occurring in ordinary working hours.
19.1 An employee will not be required to work for more than five hours without a break for a meal.
(a) Breakfast
Breakfast is the hour proceeding the usual starting time. The breakfast break will not be taken when employees are required to commence at 7.00 am or after, and proceeding the usual starting time.
(i) By mutual agreement between the employer and employees concerned, a 20 minutes rest period may be taken without deduction of pay instead of the prescribed hour for breakfast. This rest period will commence 20 minutes before the usual starting time unless otherwise mutually agreed.
(ii) Employees ordered in to dock or shift a vessel at 7.00 am will not be entitled to a meal break before noon, but if ordered in at any time before 7.00 am they will have an hour for breakfast not later than 8.00 am or a rest period of 20 minutes as provided above.
(b) Lunch
Lunch is from noon to 12.45 pm or such period as is the usual custom of the establishment at which the employees are employed.
(c) Tea
Tea is from 5.00 pm to 6.00 pm or according to the usual custom of the establishment at which the employees are employed. Provided that by mutual agreement between the employer and employee concerned a rest period may be taken.
The times prescribed above may be altered by mutual agreement between the employer and employee concerned.
19.2 Double time will be paid for all work done during the breakfast, lunch and tea breaks specified above, such double time to continue until the employees are granted a meal break or are released from duty. This provision has no application to establishments or jobs where, in accordance with this clause, it is customary for paid rest periods to be taken instead of the breakfast and or tea breaks, and such rest periods are allowed and taken.
20. Overtime and penalty rates
20.1 Employees will be entitled to be paid:
(a) a loading of 50% of the ordinary hourly base rate of pay for the first three hours, and 100% the ordinary hourly base rate of pay thereafter for any time worked outside of ordinary hours on a Monday to Friday, except for public holidays;
(b) a loading of 50% of the ordinary hourly base rate of pay for all ordinary hours and overtime worked between midnight Friday and midnight Saturday; and
(c) a minimum of four hours if recalled to work overtime after leaving the employer’s premises.
20.2 Time off instead of overtime payment
(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.
(b) The employee may take one hour of time off for each hour of overtime, paid at the employee’s ordinary hourly base rate of pay.
20.3 Sunday work
An employee will be paid a loading of 100% of the ordinary hourly base rate of pay for any hours, ordinary and overtime, worked on a Sunday.
20.4 Public holidays
An employee will be paid a loading of 150% of the ordinary hourly base rate of pay, or any hours, ordinary and overtime, worked on a public holiday.
21.1 The following shifts may be worked:
(a) afternoon shift means any shift finishing after 6.00 pm and at or before midnight;
(b) continuous work means work carried on with consecutive shifts of employees throughout the 24 hours of each of at least six consecutive days without interruption except during breakdowns or meal breaks or due to unavoidable causes beyond the control of the employer;
(c) night shift means any shift finishing subsequent to midnight and at or before 8.00 am;
(d) permanent night shift employee means an employee who:
(i) during a period of engagement on shift, works night shift only;
(ii) remains on night shift for a period longer than four consecutive weeks; or
(iii) works on a night shift which does not rotate or alternate with another shift or with day work so as to give them at least one third of their working time off night shift in each shift cycle will during such engagement period or cycle.
21.2 Shiftwork rates
Type of shift |
Percentage of the ordinary time rate |
% | |
Afternoon shift |
115 |
Night shift |
115 |
Permanent night shift |
130 |
Part 6—Leave and Public Holidays
22.1 The following provisions supplement the NES.
22.2 Annual leave loading
A loading of 17.5% (20% for shiftworkers) is payable in additional to the payment for the leave.
22.3 Shiftworkers
For the purpose of Division 6 of the NES a shiftworker is an employee employed on shiftwork where three shifts per day are worked over a period of seven days per week or an employee regularly rostered to work on Sundays and public holidays.
22.4 Requirement to take annual leave
Annual leave must be taken within six months of the entitlement accruing. An employer may require an employee to take a period of annual provided the employee is given at least 14 days notice.
23. 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.
25.1 Public holidays are provided for in the NES.
25.2 An employee will be paid at the rate of double time and a half with a minimum of four hours work when required to work on a public holiday.