AT812785CNV - Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 [Transitional]
PART 3 – EMPLOYMENT RELATIONSHIP
12. CONTRACT OF EMPLOYMENT
12.1 Weekly employment
12.1.1 Weekly employment includes full-time and part-time employment.
12.1.2 An employer shall state in writing to an employee at the time of engagement whether such engagement is on weekly hiring or on casual hiring. Failing such statement, the employee shall be deemed to be engaged on weekly hiring.
12.1.3 An employee not attending for duty shall, except as provided by clauses 25 - Accident make-up allowance; 37 - Annual leave; 38 - Holidays; 39 - Jury service; and 41 - Personal leave lose his/her pay for the actual time of such non - attendance.
12.1.4 Where a notice is given by an employer purporting to expire within the week next preceding Christmas Day or Good Friday, but the employer expressly or impliedly allows the employee to believe that he/she is to resume work not later than one week after New Year’s Day or Easter Monday as the case may be, such notice shall have no effect and the engagement shall be deemed to have continued unaffected by such notice.
12.1.5 A weekly employee shall not be changed to a casual employee within the week next preceding Christmas Day or Good Friday.
12.2 Casual employment
[12.2 corrected by PR938980; substituted by PR940254 ppc 01Jan04]
12.2.1 Casual employee shall mean an employee engaged and paid as such.
12.2.2 Upon engaging a person for casual employment, the employer must inform the employee then and there that they are to be employed as a casual, stating by whom they are employed, the duties, the actual or likely number of hours required (without the employee being guaranteed to work those hours), and the relevant rate of pay.
12.2.3 A casual employee shall be notified at the end of the day if his/her services are not required for the next working day; failing such notice, a full day’s wage shall be paid for the next working day.
[12.2.4 varied by PR940254 ppc 01Jan05]
12.2.4 A casual employee, for working ordinary time, shall be paid per hour one thirty-eighth of the sum of the weekly wage rate prescribed by this award, plus 25%, for the work which he/she performs. A minimum payment as for four hours shall be paid.
12.2.5 In addition to normal overtime rates a casual employee, while working overtime or outside ordinary hours, shall be paid on an hourly basis one thirty-eighth of the appropriate weekly wage rate prescribed by the award, plus 10% of ordinary time earnings for the work performed.
12.2.6 A casual employee shall not be entitled to the benefits of clauses:
12.2.7 Conversion of Casual Employment
12.2.7(a) A casual employee, other than an irregular casual employee as defined in clause 12.2.7(k), who has been engaged by a particular employer for a sequence of periods of employment under this Award during a period of twelve months shall thereafter have the right to elect to have his or her contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process.
12.2.7(b) An employer of such an employee shall give the employee notice in writing of the provisions of clause 12.2.7 within four weeks of the employee having attained such period of twelve months.
12.2.7(c) The employee retains his or her right of election under this clause even if the employer fails to comply with clause 12.2.7(b).
12.2.7(d) A casual employee who does not, within four weeks of receiving written notice, elect to convert his or her contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion.
12.2.7(e) Any casual employee who has a right to elect under clause 12.2.7(a), upon receiving notice, under clause 12.2.7(b), or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that he or she seeks to elect to convert his or her contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer shall either consent to or refuse the election but shall not unreasonably so refuse. A dispute about a refusal of an election to convert a contract of employment shall be dealt with as far as practicable with expedition through the dispute settlement procedure.
12.2.7(f) A casual employee who has elected to be converted to a full-time employee or a part-time employee, in accordance with clause 12.2.7(e) may only revert to casual employment by written agreement with the employer.
12.2.7(g) If a casual employee has elected to have his or her contract of employment converted to full-time or part-time employment in accordance with clause 12.2.7(d), the employer and employee in accordance with this subparagraph, and subject to clause 12.2.7(e), shall discuss and agree upon:
12.2.7(g)(i) which form of employment the employee will convert to, that is, full-time or part-time; and
12.2.7(g)(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 12.3.2.
12.2.7(h) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert his or her contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert his or her contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee.
Upon such agreement being reached, the employee shall convert to full-time or part-time employment.
Where, in accordance with clause 12.2.7(e) an employer refuses an election to convert, the reasons for doing so shall be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
12.2.7(i) Any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment shall be dealt with as far as practicable with expedition through the dispute settlement procedure.
12.2.7(j) An employee must not be engaged, disengaged and re-engaged to avoid any obligation under this Award.
12.2.7(k) An “irregular casual employee” is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
12.2.7(l) The provisions of clause 12.2.7 do not apply to irregular casual employees.
12.3 Regular part-time employees
12.3.1 An employee may be engaged to work on a part-time basis involving a regular pattern of hours which will average less than 38 hours per week in any one week from Monday to Friday inclusive.
12.3.2 Before commencing part-time employment, the employee and the employer must agree:
12.3.2(a) upon the hours to be worked by the employee, the days upon which they will be worked and the commencing and finishing times for the work.
12.3.2(b) upon the classification applying to the work to be performed in accordance with Clause 16 - Juniors;
12.3.3 Except as otherwise provided in this award, a part-time employee is entitled to be paid for the hours agreed upon in accordance with 12.3.1 hereof;
12.3.4 The terms of this agreement may be varied by consent.
12.3.5 The terms of this agreement or any variation to it will be in writing and retained by the employer. A copy of the agreement and any variation to it will be provided to the employee by the employer.
12.3.6 The terms of this award will apply pro-rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38.
12.3.7 Part-time employees will be engaged for a minimum of four consecutive hours in any day from Monday to Friday inclusive.
12.3.8 A part-time employee who is required to work in excess of the hours agreed upon in accordance with 12.3.2 will be paid overtime in accordance with the relevant overtime provisions in this award.
12.3.9 Where the part-time employees normal paid hours fall on a holiday prescribed in Clause 38 - Holidays and work is not performed by the employee, such employee will not lose pay for the day. Where the employee works on the holiday, such employee will be paid in accordance with clause 38 - Holidays.
12.4 Specified time or specified task employment
12.4.1 An employee may be engaged on a full-time or part-time basis for a specific period of time or for a specific task or tasks.
12.4.2 The details of the specific period of time or specific task(s) shall be set out in writing and retained by the employer. The employer shall provide a copy to the employee.
12.4.3 An employee engaged in accordance with 12.4.1 is for all purposes of the award a full-time or part-time employee, except where otherwise specified in this award.
12.4.4 Service under a contract of employment for a specific period of time or specific task(s) shall form part of an employee’s period of continuous service, where such employee is engaged as a full-time or part-time employee immediately following such contract of employment.
12.5 Work Organisation
12.5.1 An employer may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this award, provided that such duties are not designed to promote de-skilling.
12.5.2 An employer may direct an employee to carry out such duties and use such tools and equipment as may be required, provided that the employee has been trained in the use of such tools and equipment.
12.5.3 Any direction issued by an employer pursuant to 12.5.1 and 12.5.2 shall be consistent with the employer’s responsibilities to provide a safe and healthy working environment.
12.6 Caring responsibilities – Casual Workers
[12.6 inserted by PR969534 ppc 19Jan06]
12.6.1 Subject to the notice and evidentiary requirements in 41.5 and 41.6, casual employees are entitled to not be available to attend work, or to leave work:
12.6.1(a) if they need to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child; or
12.6.1(b) upon the death in Australia of an immediate family or household member.
12.6.2 The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.
12.6.3 An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
