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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
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Enterprise agreements benchbook

Loaded rates of pay

On this page:

  • Introduction
  • Incorporation of annual and personal/carer's leave in loaded rates
  • Loaded rates & the BOOT
  • Examples and modelling – Methodology
  • Permanent employees – examples and modelling
  • Part-time employees – examples and modelling
  • Casual employees working 38 hours – examples and modelling
  • Casual employees working 15 hours – examples and modelling
  • Case examples
Content

Introduction

An agreement can include loaded rates of pay which compensate for benefits provided for in the relevant modern award. In circumstances where an award benefit is incorporated into the agreement hourly rate of pay, that rate will need to be increased to compensate for the removal of award benefits that would no longer apply.

In addition, the hourly rate of pay would need to reflect the work arrangements of an employee. For example, if an employee were to predominately work weekends, the employee's agreement rate of pay would have to be increased to take into consideration a greater proportion of weekend penalties to ensure that the employee was better off overall.

Benefits that can be incorporated into a loaded rate include:

  • shift allowances
  • weekend and public holiday penalties
  • annual leave loading
  • reasonable additional hours
  • overtime – as well as overtime for work performed in addition to ordinary hours, instances where the agreement span of hours has been modified, the modern award generally applies overtime for work performed outside the span, which should be factored into the hourly rate, and
  • work related allowances.

Incorporation of annual and personal/carer's leave in loaded rates

Loaded rates that provide for the pre-payment of paid annual leave or personal/carer's leave (except in accordance with cashing out terms in section 93 of the Fair Work Act 2009) cannot be included in enterprise agreements as they contravene the NES.[1]

In Re Canavan Building Pty Ltd,[2] a Full Bench of the Fair Work Commission found that terms that provide for pre-payment of paid annual leave exclude the NES entitlement to paid annual leave in section 87(1) of the Fair Work Act and the requirement for payment in respect of annual leave in section 90(1). Section 55(1) of the Fair Work Act provides that a term of an enterprise agreement must not exclude the NES or any provision of the NES.

The Fair Work Act requires that the payment for annual leave be made at the employee's base rate as it is at the time the leave is taken.[3] A loaded rate which incorporates annual leave requires employees to fund any time taken off work, therefore excluding the NES provisions for annual leave.[4]

Additionally, the pre-payment of annual leave constitutes cashing out of annual leave. The Fair Work Act specifies that a cashing out provision requires a minimum accrual of four weeks' paid leave to remain in place, and a written agreement between the employer and the employee in order for the cashing out to occur. The Full Bench in Canavan found that the terms providing for a loaded rate in relation to paid annual leave constituted a cashing out provision that was not in accordance with the requirements of section 93.[5]

Loaded rates & the BOOT

A test case of the Full Bench of the Commission in June 2018 looked at how the better off overall test (BOOT) is properly to be applied to agreements containing loaded rates.[6] The decision concerned 5 applications for the approval of enterprise agreements which provided for loaded or higher rates of pay.

This issue became particularly pertinent since a first instance decision to approve an agreement applying to a major Australian retailer and its employees was quashed on appeal.[7] The agreement in question provided for loaded ordinary hourly rates which were higher than those in the relevant modern award and were intended to compensate for lower penalty rates for evenings, weekends and public holidays. The Full Bench found that the agreement did not pass the BOOT because the loaded rates in the agreement disadvantaged those employees who worked primarily at times which attracted lower penalty rates under the agreement as compared to the award.

Principles

The Full Bench held that the following 11 principles apply to the application of the BOOT to a loaded rates agreement:

  1. The BOOT requires every existing and prospective award covered employee to be better off overall under the agreement for which approval is sought than under the relevant modern award. If any such employee is not better off overall, the agreement does not pass the BOOT.
  2. Section 193(7) permits the Commission to assume that if a class of employees to which a particular employee belongs would be better off under the agreement than under the relevant modern award, then the employee would be better off overall in the absence of evidence to the contrary. However the selection of class for the purpose of s. 193(7) will only be of utility if the agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome. If the Commission is not satisfied on the evidence that an existing or prospective award covered employee is not better off overall, the Commission cannot approve the agreement, at least not without undertakings or in the confined circumstances set out in s. 189.
  3. The application of the BOOT to a loaded rates agreement will, in order for a meaningful comparison to be made, require an examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement. This will likely require classes to be identified based on common patterns of working hours, taking into account evening, weekend and/or overtime hours worked.
  4. The starting point for the assessment will necessarily be an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment for which the agreement provides or permits. For example if an enterprise agreement makes express provision for employees to be required to work ordinary hours on weekends, those provisions cannot be ignored for BOOT purposes simply because the employer asserts it does not currently utilise those working hours or roster patterns.
  5. In the case of existing employees, this may involve an examination of existing roster patterns worked by various classes of employees as at the test time. The use of sample rosters to compare remuneration produced by a loaded rates pay structure compared to the relevant modern award may be an effective method of doing this. There may be objective evidence that a particular pattern of working hours or roster pattern permitted by an enterprise agreement is not practicable, or cannot or is unlikely to be worked.
  6. In the case of prospective employees, the assessment will necessarily involve a degree of conjecture. In the case of an enterprise operating at a defined workplace or workplaces, the Commission may be in a position to make sensible predictions about the basis upon which prospective employees might be engaged based on the roster patterns worked by existing employees. However if a business is small and/or still at the development stage, or the agreement would cover a wider range of classifications, work locations and/or roster patterns that are not in existence as at the test time, useful predictions may not readily be drawn from the way in which the existing workforce operates. In that situation the assessment will require an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment which the agreement provides for or permits.
  7. If the information concerning patterns of working hours needed to assess whether a loaded rates agreement passes the BOOT is not contained in the employer's Form F17 statutory declaration accompanying the approval application, it may be necessary for the Commission to request or require the production of such information.
  8. (8) The BOOT involves the making of an overall assessment as to whether an employee would be better off under the agreement, which necessitates identification of the terms in the agreements which are more and less beneficial to the employee than under the relevant award.
  9. The overall assessment required will essentially be a mathematical one where the terms being compared relate directly to remuneration. The assessment will be more complex where the agreement contains some superior entitlements which are non-monetary in nature, accessible at the employee's option or which are contingent upon specified events occurring.
  10. In respect of non-monetary, optional or contingent entitlements in an agreement, the assumption cannot readily be made that they have the same value for all employees. In the case of a contingent benefit, it will be necessary to make a realistic assessment about the likelihood of the benefit crystallising during the period in which the agreement will operate.
  11. Where a loaded rates agreement results in significant financial detriment for existing or prospective employees compared to the relevant award, it is unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees such as to enable the agreement to pass the BOOT.[8]

Examples

Having regard to the above principles, it is possible to give examples of the type of loaded rate structures which are capable, on proper analysis, of passing the BOOT.

The examples below are based on the Security Services Industry Award 2010 [MA000016] (Security Award), and use the Security Officer Level 1 classification rate for which the base ordinary rate at 1 July 2018 is $808.00 per week or $21.26 per hour rounded to the nearest cent.

In each case it is necessary to formulate a rate for a specific roster scenario. In no case is any amount of overtime incorporated into the loaded rate.[9]

The examples below are intended to illustrate the way in which loaded rates capable of passing the BOOT might be constructed.

For a proposed agreement in another industry, the entitlements under the relevant modern award would need to be substituted.

Related information

  • Loaded rates – common defects & issues

Examples and modelling – Methodology

Calculations

The loaded rate calculated in each of the roster scenarios 1 – 18 from the Loaded Rates Agreements decision[10] is the appropriate loaded rate that would be required to compensate employees for not receiving the following Penalty Rates contained in clause 22.3 of the Security Award when working on the stipulated roster in each scenario:

  • Night shift penalties of 21.7% for working between 6pm to 12am and 12am to 6am Monday-Friday
  • Permanent night shift penalty of 30% for working permanent nights under the Award. This means work performed during a night span over the whole period of a roster cycle in which more than two thirds of the employee's ordinary shifts include ordinary hours between 0000 hrs and 0600 hrs
  • Saturday penalties of 50%
  • Sunday penalties of 100%
  • Public holiday penalties of 150%

Note: The Scenarios use the Security Award ordinary rates effective from 1 July 2018. Both the pay rates and the hours worked have been calculated to 2 decimal places.

Allowances

The loaded rates have been calculated assuming employees in the scenarios are not entitled to any award allowance including leading hand allowance, relieving officer's allowance and first aid allowance.

Annual leave

Employers must pay an employee their annual leave entitlements in accordance with clause 24.6 of the Security Award. The loaded rate may not adequately compensate employees for their annual leave entitlement under the Security Award if annual leave is paid at the loaded rate.

Casual loading

The loaded rate also takes into account the casual loading where applicable.

Better off overall test (BOOT)

The loaded rates in the scenarios would only be appropriate for the relevant roster scenario to pass the BOOT if employees otherwise are entitled under the hypothetical agreement to other terms or conditions of employment which are the same as or at least equally beneficial to those in the Security Award, and the agreement does not contain any other provision not contained in the Security Award which would be detrimental to employees.

Public holidays

Where the model makes provision for public holidays it is assumed that the public holidays are worked on a weekday.

Loading

The loading is the difference between the notional weekly rate under each scenario plus a 'buffer' amount of $5 or $10 (depending on the situation), and the award weekly minimum rate. This loading is converted to a percentage and rounded up to derive the loaded rate percentage, being the percentage the rate needs to be above the Security Award rate to ensure the loaded rate will adequately compensate employees under each roster scenario. The rounded percentage was then used to calculate the weekly loaded rate which was then verified in the models below.

To ensure that the loaded rate is clearly above the award rate plus penalties, a buffer is added to the amount. This buffer is:

  • $10 for anyone working over 15 hours per week

  • $5 for anyone working up to 15 hours per week.

Excerpt from clause 14 of the Security Award – Minimum wages

14. Minimum wages

14.1 An employer must pay full-time employees minimum weekly wages for ordinary hours (exclusive of penalties and allowances) as follows.

Employee classification Minimum weekly rate
$
Security Officer Level 1 808.00
Security Officer Level 2 831.20
Security Officer Level 3 845.30
Security Officer Level 4 859.40
Security Officer Level 5 887.20

Permanent employees – examples and modelling

Example – Permanent employees

In respect of permanent (that is, non-casual) full-time employees, the following tables set out a loaded rate which would pass the BOOT on the identified roster scenario, assuming that there is no other provision in the agreement superior or inferior to the award which is required to be taken into account:

Roster scenario % Rate required to be above award base rate Loaded rate required for Level 1 Classification

Scenario 1 – Full-time Employee working a 38 hour week. Roster made up as follows:

  • 1/7 of their ordinary hours worked on each day of the week
  • Mon-Fri work is split evenly between night shift and day shift.
  • 6 public holidays are worked each year for 7.6 hours.
34% $28.49

Modelling – Scenario 1 – Permanent employee

A Level 1 permanent employee working a 38 hour week for each week of the year which comprises of the following:

  • 1/7 of their ordinary hours worked on each day of the week:
    (38 hours ÷ 7 = 5.43 hours)
  • Mon-Fri hours are evenly split between day shift work and night shift work:
    (5.43 hours x 5 (Mon-Fri) ÷ 2 (day shift or night shift) = 13.57 hours)
    (13.57 hours - 0.44 hours (half public holiday) = 13.13 hours)
  • Given public holidays are likely to be worked in the security industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. The figure in a weekly model to proportion the public holidays to the weekly model would approximately be represented by:
    (6 days x 7.6 hours ÷ 52 weeks = 0.88 hours).

 

Award ordinary hourly rate for a Security Officer Level 1 employee $21.26
  Hours Loading
(from clause 22.3 Security Award)
Calculation
(rate x hours x loading)
Weekly total
Mon-Fri Day 13.13 100% $21.26 x 13.13 x 1.0 $279.14
Mon-Fri Night 13.13 121.7% $21.26 x 13.13 x 1.217 $339.72
Mon-Fri Perm Night 0 130% N/A $0.00
Saturday 5.43 150% $21.26 x 5.43 x 1.5 $173.16
Sunday 5.43 200% $21.26 x 5.43 x 2.0 $230.88
Public Holiday 0.88 250% $21.26 x 0.88 x 2.5 $46.77

Totals

38.00

   

$1,069.67

 

The loaded rate for each Security Award classification for a full-time employee on this roster pattern is below:

 

Classification Award minimum weekly rate Award minimum hourly rate Scenario 1 weekly rate Percentage Loaded rate increase Loaded rate
Calculations From clause 14.1 of Security Award (Award weekly rate ÷ 38) Total from table above (Scenario weekly rate + $10 - award weekly rate)  ÷ award weekly rate* (Award hourly rate
x 0.34)
(Award hourly rate
+ 34%)
Level 1
(+ calculations)
$808.00 $21.26 $1,069.67 ($1,069.67 + $10 - $808.00 = $271.67) $271.67 ÷$808.00 = 0.34 (34%) $21.26 x 0.34
= $7.23
$21.26
+ $7.23
= $28.49
Level 2 $831.20 $21.87 $1,100.37 34% $7.44 $29.31
Level 3 $845.30 $22.24 $1,118.99 34% $7.56 $29.80
Level 4 $859.40 $22.62 $1,138.10 34% $7.69 $30.31
Level 5 $887.20 $23.35 $1,174.84 34% $7.94 $31.29

* rounded up to nearest whole number

Loaded rate for a Security Officer Level 1 employee $28.49
  Hours Loading Calculation
(rate x hours x loading)
Weekly total
Ordinary Time 38 100% $28.49 x 38 x 1.0 $1,082.62
Totals 38.00     $1,082.62

 

The above roster scenarios may also be adapted for part-time employees. If part-time employees work a proportion of the working hours specified for any of the above rosters consistent with the amount of hours they work each week, the loaded rate required to pass the BOOT will be the same. For example, in Scenario 1, if a part-time employee is engaged to work 1/7th of the contracted 30 hours per week each day Monday to Sunday, with the work split evenly between night shift and day shift, and 6 public holidays of 6 hours each are worked each year, the loaded rate necessary to pass the BOOT will remain at $28.49.

Part-time employees – examples and modelling

Example – Part-time employees

Loaded rates for roster scenarios specific to part-time employees may be developed, such as the following:

Roster scenario % Rate required to be above award base rate Loaded rate required for Level 1 Classification
Scenario 6 – Part-time Employee working a 30 hour week. Roster is as follows:
  • Employees work 7.6 hour shifts on 2 Saturdays and 2 Sundays in a 4 week period.
  • Other hours worked on day shift.
  • 3 public holidays are worked each year for 7.6 hours.
23% $26.15

Modelling – Scenario 6 – Part-time employee

A Level 1 part-time employee working a 30 hour week for each week of the year which comprises of the following:

  • Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as:
    (2 days x 7.6 hours ÷ 4 weeks = 3.8 hours)
  • Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as:
    (2 days x 7.6 hours ÷ 4 weeks = 3.8 hours).
  • Other hours are worked by the employee on day shift:
    (30 hours - 3.8 hours (Saturday) - 3.8 hours (Sunday) - 0.44 hours (Public holidays) = 21.96 hours)
  • Given public holidays are likely to be worked in the Security Industry this employee also works 3 public holidays a year for 7.6 hours on each public holiday. This is represented in the model as:
    (3 days x 7.6 hours ÷ 52 weeks = 0.44 hours)
Award ordinary hourly rate for a Security Officer Level 1 employee $21.26
  Hours Loading
(from clause 22.3 of Security Award)
Calculation
(rate x hours x loading)
Weekly total
Mon-Fri Day 21.96 100% $21.26 x 21.96 x 1.0 $466.87
Mon-Fri Night 0 121.7% N/A $0.00
Mon-Fri Perm Night 0 130% N/A $0.00
Saturday 3.8 150% $21.26 x 3.8 x 1.5 $121.18
Sunday 3.8 200% $21.26 x 3.8 x 2.0 $161.58
Public Holiday 0.44 250% $21.26 x 0.44 x 2.5 $23.39
Totals 30.00     $733.02

The loaded rate for each Security Award classification for a part-time employee on this roster pattern is below:

Classification Award minimum weekly rate for 30 hours Award minimum hourly rate Scenario 6 weekly rate Percentage Loaded rate increase Loaded rate
Calculations (Hourly rate x 30) (Award weekly rate from clause 14.1 of Security Award ÷ 38) Total from table above (Scenario weekly rate + $10 - award weekly rate)  ÷ award weekly rate* (Award hourly rate
 x 0.23)
(Award hourly rate
 + 23%)
Level 1
(+ calculations)
$637.80 $21.26 $773.02 ($773.02 + $10 - $637.80 = $145.22) $145.22 ÷$637.80 = 0.23 (23%) $21.26
x 0.23
= $4.89
$21.26
+ $4.89
= $26.15
Level 2 $656.10 $21.87 $795.20 23% $5.03 $26.90
Level 3 $667.20 $22.24 $808.64 23% $5.12 $27.36
Level 4 $678.60 $22.62 $822.46 23% $5.20 $27.82
Level 5 $700.50 $23.35 $849.02 23% $5.37 $28.72

* rounded up to nearest whole number

Loaded Rate for a Security Officer Level 1 employee $26.15
  Hours Loading Calculation
(rate x hours x loading)
Weekly total
Ordinary time 30 100% $26.15 x 30 x 1.0 $784.50
Totals 30.00     $784.50

 

Where an agreement seeks to provide for a single loaded rate at a given classification level, but also provides that employees may be directed to work hours which may fit into any of the above scenarios, then it will be necessary for the loaded rate to be at least as high as the highest rate from all of the scenarios above.

Alternatively, the agreement might provide for employees to be assigned specific roster patterns which contain express limitations on the number or proportion of hours to be worked at certain times (such as on evenings or weekends) which would attract the payment of penalty rates under the relevant award.

Thus if an agreement provided that a full-time or part-time employee, as the case may be, could be assigned to any one of the above roster scenarios at any given time, then the employee would only need to be paid the loaded rate for the scenario while on the roster in order for the agreement to pass the BOOT.

The position becomes more difficult with respect to casual employees. Casual employment may consist of engagement under hourly or daily fixed term contracts, and be used for the performance of short-term and/or intermittent work on an 'on-call' basis. In this case, the casual employee is not guaranteed work on any specified days or for any specified duration. In an enterprise agreement which provides or permits casual employment of this nature, it is difficult to envisage how it would be possible to provide for a loaded rate for casual employees that was capable of passing the BOOT. This is because it would always be possible for the casual employee, in a given pay period, to be engaged to work on a day or at a time which would attract the payment of penalty rates under the relevant award and not to be engaged on any other hours or at any other times. In that circumstance, if the agreement provided for a loaded rate which was less than the highest penalty rate provided for in the relevant award, the employee would necessarily be disadvantaged as compared to the award.

Casual employees working 38 hours – examples and modelling

Example – Casual employees

An enterprise which utilises casual employees to perform regular and ongoing work (so that casual employment is simply used as an alternative payment and entitlement system rather than to describe engagement on a truly casual basis), an enterprise agreement might provide casual employees with an entitlement to guaranteed hours and rosters.

In that circumstance it may be possible to construct a loaded rate for them, in the same way as for full-time and part-time employees above, which is capable of passing the BOOT based on particular prescribed rosters.

For example, the following loaded rates (which are inclusive of the 25% casual loading) for Level 1 casual employees covered by the Security Award, who work full-time hours would pass the BOOT if the agreement contained no offsetting disadvantageous provisions:

Roster scenario % Rate required to be above award base rate Loaded rate required for Level 1 Classification
Scenario 10 – Casual Employee working a 38 hour week. Roster made up as follows:
  • 1/7 of their ordinary hours worked on each day of the week
  • Mon-Fri work is split evenly between night shift and day shift.
  • 6 public holidays are worked each year for 7.6 hours.
59% $33.80

Modelling – Scenario 10 – Casual employees

A Level 1 casual employee working a 38 hour week for each week of the year which comprises of the following:

  • 1/7 of their ordinary hours worked on each day of the week:
    (38 hours ÷ 7 = 5.43 hours)
  • Mon-Fri hours are evenly split between day shift work and night shift work:
    (5.43 hours x 5 (Mon-Fri) ÷ 2 (day shift or night shift) = 13.57 hours)
    (13.57 hours - 0.44 hours (half public holiday) = 13.13 hours)
  • Given public holidays are likely to be worked in the security industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. The figure in a weekly model to proportion the public holidays to the weekly model would approximately be represented by:
    (6 days x 7.6 hours ÷ 52 weeks = 0.88 hours).
Award ordinary hourly rate for a Security Officer Level 1 employee $21.26
  Hours Loading
(from clause 22.3 of Security Award)
Calculation
(rate x hours x loading)
Weekly total
Mon-Fri Day 13.13 125% $21.26 x 13.13 x 1.25 $348.93
Mon-Fri Night 13.13 146.7% $21.26 x 13.13 x 1.467 $409.50
Mon-Fri Perm Night 0 155% N/A $0.00
Saturday 5.43 175% $21.26 x 5.43 x 1.75 $202.02
Sunday 5.43 225% $21.26 x 5.43 x 2.25 $259.74
Public Holiday 0.88 275% $21.26 x 0.88 x 2.75 $51.45
Totals 38.00     $1,271.64

The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:

Classification Award minimum weekly rate Award minimum hourly rate Scenario 10 weekly rate Percentage Loaded rate increase Loaded rate
Calculations From clause 14.1 of Security Award (Award weekly rate ÷ 38) Total from table above (Scenario weekly rate + $10 - award weekly rate)  ÷ award weekly rate* (Award hourly rate
x 0.59)
(Award hourly rate
+ 59%)
Level 1
(+ calculations)
$808.00 $21.26 $1,271.64 ($1,271.64 + $10 - $808.00 = $473.64) $473.64 ÷$808.00 = 0.59 (59%) $21.26 x 0.59
= $12.54
$21.26
+ $12.54
= $33.80
Level 2 $831.20 $21.87 $1,308.14 59% $12.90 $34.77
Level 3 $845.30 $22.24 $1,330.27 59% $13.12 $35.36
Level 4 $859.40 $22.62 $1,353.00 59% $13.35 $35.97
Level 5 $887.20 $23.35 $1,396.66 59% $13.78 $37.13

* rounded up to nearest whole number

Loaded rate for a Security Officer Level 1 employee $33.80
  Hours Loading Calculation
(rate x hours x loading)
Weekly total
Ordinary Time 38 100% $33.80 x 38 x 1.0 $1,284.40
Totals 38.00     $1,284.40

Casual employees working 15 hours – examples and modelling

Example – Casual employees

The following loaded rates (inclusive of the casual loading) would also pass the BOOT for casual employees working 30 hours or 15 hours per week, again assuming there were no offsetting disadvantages in the agreement):

Roster scenario % Rate required to be above award base rate Loaded rate required for Level 1 Classification
Scenario 18 – Casual Employee working a 15 hour week. Roster is as follows:
  • Employees work 7.6 hour shifts on 2 Saturdays and 2 Sundays in a 4 week period.
  • Other hours worked on permanent night shift.
  • 6 public holidays are worked each year for 7.6 hours.
87% $39.76

Modelling – Scenario 18 – Casual employees

A Level 1 casual employee working a 15 hour week for each week of the year which comprises of the following:

  • Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is represented in the weekly model as:
    (2 days x 7.6 hours ÷ 4 weeks = 3.8 hours)
  • Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is represented in the weekly model as:
    (2 days x 7.6 hours ÷ 4 weeks = 3.8 hours)
  • Other hours are worked by the employee on permanent night shift
    (15 hours - 3.8 hours (Saturday) - 3.8 hours (Sunday) - 0.44 hours (Public holidays) = 6.52 hours)
  • Given public holidays are likely to be worked in the security industry this employee also works 6 public holidays a year for 7.6 hours on each public holiday. The figure in a weekly model to proportion the public holidays to the weekly model would approximately be represented by:
    (6 days x 7.6 hours ÷ 52 weeks = 0.88 hours).

 

Award ordinary hourly rate for a Security Officer Level 1 employee $21.26
  Hours Loading
(from clause 22.3 of Security Award)
Calculation
(rate x hours x loading)
Weekly total
Mon-Fri Day 0 125% N/A $0.00
Mon-Fri Night 0 146.7% N/A $0.00
Mon-Fri Perm Night 6.52 155% $21.26 x 6.52 x 1.55 $214.85
Saturday 3.8 175% $21.26 x 3.8 x 1.75 $141.38
Sunday 3.8 225% $21.26 x 3.8 x 2.25 $181.77
Public Holiday 0.88 275% $21.26 x 0.88 x 2.75 $51.45
Totals 15.00     $589.45

The loaded rate for each Security Award classification for a casual employee on this roster pattern is below:

Classification Award minimum weekly rate Award minimum hourly rate Scenario 18 weekly rate Percentage Loaded rate increase Loaded rate
Calculations (Hourly rate x 15) (Award weekly rate from clause 14.1 of Security Award ÷ 38) Total from table above (Scenario weekly rate + $5 - award weekly rate)  ÷ award weekly rate* (Award hourly rate
x 0.87)
(Award hourly rate
+ 87%)
Level 1
(+ calculations)
$318.90 $21.26 $589.45 ($589.45 + $5 - $318.90 = $275.55) $275.55 ÷ $318.90 = 0.87 (87%) $21.26
 x 0.87
= $18.50
$21.26
+ $18.50
= $39.76
Level 2 $328.05 $21.87 $606.38 87% $19.03 $40.90
Level 3 $333.60 $22.24 $616.63 87% $19.35 $41.59
Level 4 $339.30 $22.62 $627.16 87% $19.68 $42.30
Level 5 $350.25 $23.35 $647.41 87% $20.31 $43.66

* rounded up to nearest whole number

Loaded rate for a Security Officer Level 1 employee $39.76
  Hours Loading Calculation
(rate x hours x loading)
Weekly total
Ordinary Time 15 100% $39.76 x 15 x 1.0 $596.40
Totals 15.00     $596.40

Case examples

Passed the better off overall test – loaded rates (with undertakings)

Re Dominance Enterprises Pty. Ltd. T/A Dominance Guardian Services

Re Dominance Enterprises Pty. Ltd. T/A Dominance Guardian Services [2014] FWCA 4448 (Gregory C, 11 July 2014).

An application was made for approval of an enterprise agreement known as the Dominance Guardian Services – Enterprise Agreement – 2014. After reviewing the application, the Commission sought clarification of a range of issues. The agreement provided loaded hourly rates to employees depending upon whether an employee was rostered to work on weekdays, weekends or public holidays, and included an additional casual loading for casual employees.

Whilst the rates proposed for work rostered on weekdays appeared to satisfy the requirements of the BOOT, this was not necessarily evident for the rates provided for work rostered on weekends and on public holidays. The Commission also sought clarification of the intended span of ordinary hours, as well as the provisions concerning entitlement to overtime payments.

The Commission found that when pay rates were structured in the way proposed in the agreement, any assessment of those arrangements will depend in large part on when an employee is actually rostered to work. If the employee works the majority of his or her hours on weekdays then they will most likely be better off. However, if a significant proportion of the employee’s hours are on weekends or public holidays, this is less likely to be the case because the loaded rate at those times was less than the award rate.

The applicant provided information about how the hourly rates had been calculated, together with an additional undertaking to the effect that any shortfall between earnings under the agreement and earnings that would have been earned under the modern award would be made up in the next pay cycle. The agreement was approved with undertakings.

Re Lucky Coffee Pty Ltd

Re Lucky Coffee Pty Ltd [2013] FWCA 294 (Gay C, 15 January 2013).

An application was made for approval of an enterprise agreement known as the Lucky Coffee Pty Ltd Enterprise Agreement 2012. The Commission had a number of concerns with the agreement, including in relation to part-time hours and days being agreed upon in writing, overtime penalties for part-time employees and wage rates being high enough to compensate for reduced penalties.

The Commission received undertakings addressing these concerns by raising the pay rate for a number of junior rates and paying part-time employees overtime rates for any worked outside those agreed to.

The Commission was satisfied that employees were better off overall under the agreement than under the modern award.

Re Leslie James Foster T/A Echuca Security Options

Re Leslie James Foster T/A Echuca Security Options [2011] FWAA 6081 (Lewin C, 8 September 2011).

An application was made for approval of an enterprise agreement known as the Echuca Security Enterprise Agreement 2011. The Commission was concerned the agreement incorporated loadings and penalties into the pay rates.

The applicant undertook to both raise the pay rates and to pay weekend penalty rates for permanent employees required to work on the weekend. The Commission was satisfied that by incorporating the undertakings, the agreement could be approved.

Re Calvary Health Care Tasmania Limited

Re Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2014] FWCA 7316 (Lee C, 16 October 2014).

An application was made for approval of an enterprise agreement known as the Calvary Health Care Tasmania Hospital Staff Enterprise Agreement 2014. It appeared the agreement incorporated shift loadings into the hourly rate.

The applicant increased the pay rates in the agreement to satisfy the Commission that employees would be better off overall under the agreement rather than the modern award. On this basis, the Commission approved the agreement.

References

Content

[1] Canavan Building Pty Ltd [2014] FWCFB 3202 (Ross J, Hatcher VP, Acton SDP, Cargill C, Wilson C, 29 May 2014) at paras 55–57.

[2] Ibid.

[3] Ibid., at para. 38.

[4] Ibid., at para. 55.

[5] Ibid., at para. 56.

[6] Loaded Rates Agreements [2018] FWCFB 3610 (Hatcher VP, Catanzariti VP, Gostencnik DP, Lee C, Harper-Greenwell C, 28 June 2018).

[7] Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo [2016] FWCFB 2887 (Watson VP, Kovacic DP, Roe C, 31 May 2016).

[8] Loaded Rates Agreements [2018] FWCFB 3610 (Hatcher VP, Catanzariti VP, Gostencnik DP, Lee C, Harper-Greenwell C, 28 June 2018) at para. 115.

[9] Ibid., at para. 116.

[10] Loaded Rates Agreements [2018] FWCFB 3610 (Hatcher VP, Catanzariti VP, Gostencnik DP, Lee C, Harper-Greenwell C, 28 June 2018).

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 14 Feb 2022
Location on last update: https://www.fwc.gov.au/loaded-rates-pay