MA000076  PR988936

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

ORDER

Workplace Relations Act 1996
s.576E – Procedure for carrying out award modernisation process


EDUCATIONAL SERVICES (SCHOOLS) GENERAL STAFF AWARD 2010
(AM2008/33)

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH

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:

2. The award is attached.

BY THE COMMISSION:

PRESIDENT

Educational Services (Schools) General Staff 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. Leave without pay during non-term weeks
12. Termination of employment
13. Redundancy
Part 4—Minimum Wages and Related Matters
14. Classifications
15. Minimum wages
16. Allowances
17. Accident pay
18. Higher duties
19. Payment of wages
20. Superannuation
21. Supported wage and national training wage
Part 5—Hours of Work and Related Matters
22. Ordinary hours of work
23. Rostered days off
24. Breaks
25. Shiftwork
26. Penalty rates
27. Overtime
Part 6—Leave and Public Holidays
28. Annual leave
29. Personal/carer’s leave and compassionate leave
30. Community service leave
31. Public holidays
Schedule A—Classifications
Schedule B—Supported Wage System
Schedule C—National Training Wage
Schedule D—Apprentices
Schedule E—Translation and Transition


Part 1—Application and Operation

1. Title

This award is the Educational Services (Schools) General Staff Award 2010.

2. Commencement date

This award commences on 1 January 2010.

3. Definitions and interpretation

3.1 In this award, unless the contrary intention appears:

3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.

4. Coverage

4.1 Subject to clauses 4.2, 4.3 and, 4.4 this award covers employers in the school education industry throughout Australia and their employees employed in the classifications contained in Schedule A to the exclusion of any other modern award.

4.2 The award does not cover an employee excluded from award coverage by the Act.

4.3 The award does not cover 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.

4.4 This award does not apply to:

4.5 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.

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. Award flexibility

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:

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:

7.4 The agreement between the employer and the individual employee must also:

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:

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

8.1 Employer to notify

8.2 Employer to discuss change

9. Dispute resolution

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. Types of employment

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

10.2 At the time of engagement, an employer will inform each employee whether they are employed on a full-time, part-time or casual basis and the employee’s classification.

10.3 Full-time employment

10.4 Part-time employment

10.5 Casual employment

11. Leave without pay during non-term weeks

11.1 Arrangements

11.2 Calculating annual salary for an employee on leave without pay during non-term weeks

12. Termination of employment

12.1 Notice of termination is provided for in the NES.

12.2 Notice of termination by an employee

12.3 Job search entitlement

13. Redundancy

13.1 Redundancy pay is provided for in the NES.

13.2 Transfer to lower paid duties

13.3 Employee leaving during notice period

13.4 Job search entitlement

13.5 Transitional provisions


Part 4—Minimum Wages and Related Matters

14. Classifications

All employees must be classified according to the structure set out in Schedule A—Classifications and paid the minimum wage in clause 15Minimum wages. An employer must advise an employee in writing of their classification and of any changes to their classification.

15. Minimum wages

15.1 Annual rates of pay

15.2 Commencement level and progression

15.3 Junior employees

15.4 Apprentices

16. Allowances

16.1 Caretakers’ accommodation

16.2 District allowances

16.3 First aid allowance

16.4 Meal allowance

16.5 On call and recall allowance

16.6 Sleepover allowance

16.7 Tool allowance

16.8 Uniform/protective clothing allowance

16.9 Vehicle allowance

16.10 Adjustment of expense related allowances

17. Accident pay

17.1 Subject to clause 17.2, an employee is entitled to accident pay in accordance with the terms of:

17.2 The employee’s entitlement to accident pay under the notional agreement preserving a State award 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.

17.3 This clause does not operate to diminish an employee’s entitlement to accident pay under any other instrument.

17.4 This clause ceases to operate on 31 December 2014.

18. Higher duties

18.1 An employer may direct an employee to temporarily perform duties applicable to a classification higher than their current classification.

18.2 Subject to clause 18.3 where the employee performs such duties for more than five days and those duties constitute the whole or substantially the whole type of duties which would attract the higher classification, the employee will be paid the rate of pay applicable to the higher classification for the whole period during which the duties are performed.

18.3 Where the employee is a school operational services employee, and they perform those duties for one day or more and those duties constitute the whole or substantially the whole type of duties which would attract the higher classification, the employee will be paid the rate of pay applicable to the higher classification for the whole period during which the duties are performed.

19. Payment of wages

19.1 All monies payable will be paid:

19.2 An employer may elect to pay wages and allowances by cash, cheque or direct transfer. Where monies are paid by direct transfer, the employee has the right to nominate the financial institution and the account.

19.3 Where an employee is being paid on a fortnightly basis as at the date that this award becomes operative, that employee will not have the basis of their payment changed as a result of the award coming into force.

20. Superannuation

20.1 Superannuation legislation

20.2 Employer contributions

20.3 Voluntary employee contributions

20.4 Superannuation fund

21. Supported wage and national training wage

21.1 For provisions in relation to the supported wage system see Schedule B.

21.2 For provisions in relation to the national training wage see Schedule C.


Part 5—Hours of Work and Related Matters

22. Ordinary hours of work

22.1 Subject to this clause, a full-time employee’s ordinary hours of work will be 38 per week. The ordinary hours of work for a part-time or casual employee will be in accordance with clause 10Types of employment.

22.2 The ordinary hours of work in clause 22.1 may be averaged over a period of a fortnight or four weeks. The exception to this is a curriculum/resources services employee employed in outdoor education, or a boarding supervision services employee whose hours of work may be averaged over a period of up to 12 months. Where a boarding supervision services employee’s hours of work are averaged over a period of 12 months, they will be paid the applicable annual rate in clause 15.1 for all weeks of the year, excluding periods of unpaid leave provided for in this award or the NES, and clauses 11Leave without pay during non-term weeks, 23Rostered days off, 25Shiftwork, 26Penalty rates and 27Overtime will not apply.

22.3 The ordinary hours of work will be worked on no more than five days in any seven days and may be worked as follows:

22.4 An employer may require a part-time employee to work reasonable additional hours in accordance with the provisions of this clause.

22.5 Breaks between periods of duty

23. Rostered days off

An employer and employee may agree that the ordinary hours of work provided by clause 22Ordinary hours of work will be worked over 19 days in each four week period, in which case the following provisions will apply.

23.1 The employee will work 152 hours over 19 days in each four week period with one rostered day off on full pay in each such period.

23.2 An employee will accrue 24 minutes for each eight hour day worked to give the employee an entitlement to take rostered days off.

23.3 Each day of paid leave taken by an employee (but not including long service leave, any period of stand-down, any public holiday or any period of absence for which workers compensation payments apply occurring during any cycle of four weeks) will be regarded as a day worked for the purpose of accruing an entitlement under clause 23.2.

23.4 Rostered days off will not be regarded as part of the employee’s annual leave for any purpose.

23.5 An employee will not be entitled to more than 12 rostered days off in any 12 months of consecutive employment.

23.6 An employee who is scheduled to take a rostered day off before having worked a complete four week cycle will be paid a pro rata amount for the time that the employee has accrued in accordance with clause 23.2.

23.7 An employee whose employment is terminated in the course of a four week cycle will be paid a pro rata amount for the time that the employee has accrued in accordance with clause 23.2.

23.8 Rostered days off will be determined by mutual agreement between the employer and the employee, having regards to the needs of the place of employment.

23.9 An employee will be advised by the employer at least four weeks in advance of the day on which the employee is to be rostered off duty.

24. Breaks

24.1 Meal break

24.2 Rest break

25. Shiftwork

25.1 Ordinary hours for shiftwork

25.2 Definitions

25.3 Broken shifts

25.4 Rostering

26. Penalty rates

26.1 Shiftwork

26.2 Saturday and Sunday work

26.3 The penalty rates within this clause and in clause 27Overtime are not cumulative. Where an employee is entitled to more than one penalty or overtime rate, the employee will be entitled to the highest single penalty rate.

27. Overtime

27.1 Overtime rates

27.2 Time off instead of overtime payment

27.3 Make-up time


Part 6—Leave and Public Holidays

28. Annual leave

28.1 Annual leave is provided for in the NES. This clause supplements the NES provisions.

28.2 An employer may require an employee to take their annual leave during non-term weeks.

28.3 Annual leave loading

28.4 Paid leave in advance of accrued entitlement

29. Personal/carer’s leave and compassionate leave

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

30. Community service leave

Community service leave is provided for in the NES.

31. Public holidays

31.1 Public holidays are provided for in the NES.

31.2 Payment for work on a public holiday

31.3 Substitution of public holidays


Schedule A—Classifications

A.1 Definitions

A.1.1 Definition 1: Supervision

A.1.2 Definition 2: Qualifications

A.1.3 Definition 3: Classification dimensions

A.2 Classifications

A.2.1 Level 1

A.2.2 Level 2

A.2.3 Level 3

A.2.4 Level 4

A.2.5 Level 5

A.2.6 Level 6

A.2.7 Level 7

A.2.8 Level 8


Schedule B—Supported Wage System

B.1 This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.

B.2 In this schedule:

B.3 Eligibility criteria

B.3.1 Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.

B.3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.

B.4 Supported wage rates

B.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

B.4.2 Provided that the minimum amount payable must be not less than $69 per week.

B.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.

B.5 Assessment of capacity

B.5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the Supported Wage System by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.

B.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

B.6 Lodgement of SWS wage assessment agreement

B.6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with Fair Work Australia.

B.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by Fair Work Australia to the union by certified mail and the agreement will take effect unless an objection is notified to Fair Work Australia within 10 working days.

B.7 Review of assessment

The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the supported wage system.

B.8 Other terms and conditions of employment

Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.

B.9 Workplace adjustment

An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.

B.10 Trial period

B.10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

B.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.

B.10.3 The minimum amount payable to the employee during the trial period must be no less than $69 per week.

B.10.4 Work trials should include induction or training as appropriate to the job being trialled.

B.10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause B.5.


Schedule C—National Training Wage


Schedule D—Apprentices

D.1 Apprentices

D.1.1 An apprentice means any person employed and registered in the form prescribed by the relevant State Apprenticeship Authority.

D.1.2 For the purposes of this award, an apprentice is an employee who is engaged under a Training Agreement registered by the relevant State or Territory Training or apprenticeship Authority, where the qualification outcome specified in the Training agreement is a relevant qualification from a Training Package endorsed by the National Training Framework Committee.

D.1.3 An apprentice will also include an employee who is engaged under a Training Agreement or Contract of Training for an apprenticeship declared or recognised by the relevant State or Territory Training or Apprenticeship Authority.

D.1.4 Subject to appropriate State legislation, an employer must not employ an unapprenticed junior in a trade provided for in this award.

D.1.5 In order to undertake trade training in accordance with D.1 a person must be a party to a contract of apprenticeship training or training agreement in accordance with the requirements of the relevant Apprenticeship authority or State legislation. The employer must provide access to training consistent with the contract or training agreement without loss of pay.

D.1.6 An apprentice who attends a technical school and presents reports of satisfactory attendance and conduct must be reimbursed by their employer for all fees paid by the apprentice in respect of any course prescribed, at the end of each term.

D.1.7 The probationary period of an apprentice must be as set out in the training agreement or contract of apprenticeship consistent with the requirements of the Apprenticeship Authority or State legislation but must not exceed three months.

D.1.8 An apprentice who is under 21 years of age on completion of their apprenticeship and who is employed in the occupation to which they were apprenticed will be paid not less than the adult rate prescribed for that classification.

D.1.9 Except as provided in this schedule or where otherwise stated all conditions of employment specified in this award will apply to apprentices.

D.1.10 No apprentice under the age of 18 years will be required to work overtime unless they request to work overtime. An apprentice must not work or be required to work overtime at times which would prevent their attendance at technical school as required by this award or by State legislation.

D.1.11 No apprentice under the age of 18 years will be employed on any shift other than day shift. An apprentice over the age of 18 years, by mutual agreement may be required to work on an afternoon shift provided such shiftwork does not prevent their attendance at technical school as required by this award or by State legislation.

D.1.12 An apprentice must not work under any system of payment by results.

D.1.13 An employer must allow an apprentice to take time off during working hours to attend available classes. In order to be entitled to the time off the apprentice must produce a card showing the employee’s attendance at school for the period.

D.1.14 The provisions of this schedule will be read in conjunction with any state legislation or regulation relating to apprentices.

D.1.15 Provisions of any State legislation or regulation relating to the attendance of apprentices at technical school during ordinary working hours or to disciplinary powers of Apprenticeship Authorities over apprentices and employers are deemed not to be inconsistent with this award.

D.1.16 Apprentices are entitled to the NES, as supplemented by this award, except with respect to Notice of termination and Redundancy pay.

D.1.17 The ordinary hours of work of apprentices must not exceed those of the tradespersons employed under this award.

D.1.18 The number of apprentices that may be employed by an employer at any time in the said trade or trades must not exceed the proportion of one apprentice for each individual tradesperson employed by the employer in such trade.

D.2 School-based Apprentices

D.2.1 A school-based apprentice is a person who is undertaking an apprenticeship in accordance with this schedule while also undertaking a course of secondary education.

D.2.2 A school-based apprenticeship may be undertaken in the trades covered by this award under a training agreement or contract of training for an apprentice declared or recognised by the relevant State or Territory authority.

D.2.3 The relevant minimum wages for full-time junior and adult apprentices provided for in this award, calculated hourly, will apply to school-based apprentices for total hours worked including time deemed to be spent in off-the-job training.

D.2.4 For the purposes of clause D.2.3, where an apprentice is a full-time school student, the time spent in off-the-job training for which the apprentice must be paid is 25% of the actual hours worked each week on-the-job. The wages paid for training time may be averaged over the semester or year.

D.2.5 A school-based apprentice must be allowed, over the duration of the apprenticeship, the same amount of time to attend off-the-job training as an equivalent full-time apprentice.

D.2.6 For the purposes of this schedule, off-the-job training is structured training delivered by a Registered Training Organisation separate from normal work duties or general supervised practice undertaken on the job.

D.2.7 The duration of the apprenticeship must be as specified in the training agreement or contract for each apprentice but must not exceed six years.

D.2.8 School-based apprentices progress through the relevant wage scale at the rate of 12 months progression for each two years of employment as an apprentice.

D.2.9 The apprentice wage scales are based on a standard full-time apprenticeship of four years (unless the apprenticeship is of three years duration). The rate of progression reflects the average rate of skill acquisition expected from the typical combination of work and training for a school-based apprentice undertaking the applicable apprenticeship.

D.2.10 If an apprentice converts from school-based to full-time, all time spent as a full-time apprentice will count for the purposes of progression through the relevant wage scale in addition to the progression achieved as a school-based apprentice.

D.2.11 School-based apprentices are entitled pro rata to all of the other conditions in this award.


Schedule E—Translation and Transition