PART 4 EMPLOYMENT RELATIONSHIP
11.1 General duties
11.1.1 An employer may direct an employee to carry out such duties as are within the limits of the employee's skills, competence and training consistent with the classification structure of this award provided that such duties are not designed to promote de-skilling.
11.1.2 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 properly trained in the use of such tools and equipment.
11.1.3 Any direction issued by an employer under this clause is to be consistent with the employer's responsibilities to provide a safe and healthy working environment.
12.1 Probationary employment
12.1.1 An employer may initially engage a full-time or part-time employee for a period of probationary employment for the purpose of determining the employee's suitability for ongoing employment.
12.1.1(a) The employee must be advised in advance that the employment is probationary and of the duration of the probation.
12.1.1(b) The maximum duration of the probationary period shall be three months unless a longer period of probation is reasonable having regard to the nature and circumstances of the employment.
12.1.2 A probationary employee is for all purposes of the award a full-time or part-time employee.
12.1.3 Probationary employment forms part of an employee's period of continuous service for all purposes of the award, except where otherwise specified in this award.
12.2 Full-time employment
Any employee not specifically engaged as being a part-time or casual employee is for all purposes of this award a full-time employee, unless otherwise specified in the award.
12.3 Casual employment
12.3.1 An employer may engage employees on a casual basis in which case employment may be terminated by an hour's notice given either by the employer or the employee, or by the payment or forfeiture of an hour's wage as the case may be.
[12.3.2 substituted by PR945174 ppc 01Sep04]
12.3.2 A casual employee is one engaged and paid as such, and for working ordinary time shall be paid per hour 1/38th of the weekly wage prescribed by this award for the work which the employee performs, plus twenty-five per cent.
12.4 Part-time employment
12.4.1 An employee may be engaged to work on a part-time basis involving a regular pattern of hours which shall average less than 38 hours per week. An employee so engaged shall be paid per hour 1/38th of the weekly rate prescribed by clause 18.5 of this award for the work performed.
12.4.2 Overtime shall be payable to part-time employees for time worked in excess of the hours fixed in accordance with the pattern of hours applicable to the employee. However, a part-time employee is not entitled to be paid overtime penalties on a day until he or she has worked at least an equivalent number of hours that day to an equivalent full-time employee in the relevant section of the enterprise. Provided that a part-time employee shall not work more than 38 hours in any week at ordinary rates.
12.4.3 The terms of this award shall apply pro rata to part-time employees on the basis that ordinary weekly hours for full-time employees are 38 hours.
12.4.4 Public holidays
Where the part-time employee's normal paid hours fall on a public holiday prescribed in clause 29 - Public holidays, of this award and work is not performed by the employee, such employee shall not lose pay for the day. Where the employee works on the holiday, such employee shall be paid in accordance with clause 29.7 of this award.
12.5 Trainees
The parties to this award shall observe the terms of the National Training Wage Award 2000 [AW790899 PR904174], as amended.
12.6 Apprentices
12.6.1 Apprentices - General
12.6.1(a) The terms of this award will apply to apprentices except where it is otherwise stated.
12.6.1(b) Apprentices may be engaged in trades or occupations provided for in this award where recognised by a State or Territory Training Authority.
12.6.1(c) In any State in which a statute or regulation relating to apprentices is in force, that statute or regulation will operate provided that such provisions are not inconsistent with this award, in which case the provisions of this award shall apply.
12.6.1(d) In order to undertake trade training in accordance with 12.6.2 a person must be a party to a contract of apprenticeship or a training agreement in accordance with the requirements of the relevant State or Territory Training Authority or State or Territory legislation. The employer shall provide and/or provide access to, training consistent with the contract or training agreement without loss of pay.
12.6.1(e) An Apprenticeship may be cancelled or suspended only in accordance with the requirements of the contract of apprenticeship or training agreement and the requirements of State or Territory legislation and the requirements of the relevant State or Territory Training Authority.
12.6.1(f) The probationary period of an apprentice shall be as set out in the training agreement or contract of apprenticeship consistent with the requirement of the relevant State or Territory Training Authority and with State or Territory legislation but shall not exceed three months.
12.6.1(g) Apprentices attending technical colleges or schools or registered training organisations or TAFE and presenting reports of satisfactory conduct shall be reimbursed all fees paid by them.
12.6.1(h) Except as provided in this clause or where otherwise stated, all conditions of employment specified in the award shall apply to apprentices. Notice of termination and redundancy provisions shall not apply to apprentices. The ordinary hours of employment of apprentices shall not in each enterprise exceed those of the relevant tradesperson.
12.6.1(i) No apprentices under the age of 18 years shall be required to work overtime or shift work unless they so desire. No apprentice shall, except in emergency, work or be required to work overtime or shift work at times which would prevent their attendance in training consistent with the contract or training agreement.
12.6.1(j) Subject to 12.6.2(k), the period of apprenticeship shall be four years, except where the period is varied with the approval of the relevant State or Territory Training Authority.
12.6.1(k) Apprentices are required to serve an additional day for each day of absence during each year of their apprenticeship, except in respect of absences due to annual leave or long service leave. The following year of their apprenticeship does not commence until the additional days have been worked. However, any time that has been worked by the apprentice in excess of their ordinary hours shall be credited to the apprentice when calculating the amount of additional time that needs to be worked in the relevant year.
12.6.2 School based apprentices
12.6.2(a) This subclause applies to school based apprentices. A school based apprentice is a person who is undertaking an apprenticeship in accordance with this subclause while also undertaking a course of secondary education.
12.6.2(b) The hourly rates for full-time junior and adult apprentices as set out in this award apply to school based apprentices for total hours worked including time deemed to be spent in off-the-job training.
12.6.2(c) For the purposes of paragraph (b), where a school based apprentice is a full-time school student, the time spent in off-the-job training for which the apprentice is paid is deemed to be 25 per cent of the actual hours each week worked on-the-job. The wages paid for training time may be averaged over the semester or year.
12.6.2(d) A school based apprentice is allowed, over the duration of the apprenticeship, the same amount of time to attend off-the-job training as an equivalent full-time apprentice.
12.6.2(e) For the purposes of this subclause, 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.
12.6.2(f) The duration of the apprenticeship shall be as specified in the training agreement or contract for each apprentice. The period so specified to which the apprentice wage rates apply shall not exceed six years.
12.6.2(g) School based apprentices progress through the wage scale at the rate of 12 months progression for each two years of employment as an apprentice.
12.6.2(h) The rates of pay are based on a standard apprenticeship of four years. 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.
12.6.2(i) Where an apprentice converts from a school based to a full-time apprenticeship, all time spent as a full-time apprentice counts for the purposes of progression through the wage scale. This progression applies in addition to the progression achieved as a school based apprentice.
12.6.2(j) School based apprentices are entitled to pro rata entitlements available to employees covered by this award.
13.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer shall be prima facie evidence that the employee has abandoned the employment.
13.2 Provided that if within a period of fourteen days from the employee's last attendance at work or the date of the employee's last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of the employer that the employee is absent for reasonable cause, the employee shall be deemed to have abandoned the employment.
13.3 Termination of employment by abandonment in accordance with this subclause shall operate as from the date of the last attendance at work or the last day's absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.
Unless a provision of this award or the Act states otherwise (e.g. sick leave), an employee not attending for duty will lose pay for the actual time of such non-attendance.
The employer has the right to deduct payment for any time the employee cannot be usefully employed because of any strike or through any failure in equipment or facilities or any stoppage of work by any cause for which the employer cannot reasonably be held responsible.
[16 termination of employment and substituted by PR952729 ppc 25Oct04]
16.1 Notice of termination by employer
16.1.1 In order to terminate the employment of an employee the employer must give to the employee the period of notice specified in the table below:
Period of continuous service Period of notice 1 year or less 1 week Over 1 year and up to the completion of 3 years 2 weeks Over 3 years and up to the completion of 5 years 3 weeks Over 5 years of completed service 4 weeks16.1.2 In addition to the notice in 16.1.1, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, are entitled to an additional week's notice.
16.1.3 Payment in lieu of the prescribed notice in 16.1.1 and 16.1.2 must be made if the appropriate notice period is not required to be worked. Provided that employment may be terminated by the employee working part of the required period of notice and by the employer making payment for the remainder of the period of notice.
16.1.4 The required amount of payment in lieu of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, The employer would have become liable to pay to the employee because of the employment continuing during that period. That total must be calculated on the basis of:
16.1.4(a) the employee's ordinary hours of work (even if not standard hours); and
16.1.4(b) the amounts ordinarily payable to the employee in respect of those hours, including (for example) allowances, loading and penalties; and
16.1.4(c) any other amounts payable under the employee's contract of employment.
16.1.5 The period of notice in this clause does not apply:
16.1.5(a) in the case of dismissal for serious misconduct;
16.1.5(b) to apprentices;
16.1.5(c) to employees engaged for a specific period of time or for a specific task or tasks;
16.1.5(d) to trainees whose employment under a traineeship agreement or an approved traineeship is for a specified period or is, for any other reason, limited to the duration of the agreement; or
16.1.5(e) to casual employees.
16.1.6(a) For the purpose of this clause service shall be deemed to be continuous notwithstanding:
16.1.6(b) Provided that in the calculation of continuous service under this subclause any time in respect of which an employee is absent from work except time for which an employee is entitled to claim annual leave, paid personal leave, public holidays and long service leave shall not count as time worked.
16.2 Notice of termination by an employee
16.2.1 The notice of termination required to be given by an employee is the same as that required of an employer, save and except that there is no requirement on the employee to give additional notice based on the age of the employee concerned.
16.2.2 If an employee fails to give the notice specified in 16.1.1 the employer has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received under 16.1.4.
16.3 Job search entitlement
Where an employer has given notice of termination to an employee, an employee shall be allowed up to one day's time off without loss of pay for the purpose of seeking other employment. The time off shall be taken at times that are convenient to the employee after consultation with the employer.
16.4 Transmission of business
Where a business is transmitted from one employer to another, as set out in Clause 17 - Redundancy, the period of continuous service that the employee had with the transmittor or any prior transmittor is deemed to be service with the transmittee and taken into account when calculating notice of termination. However, an employee shall not be entitled to notice of termination or payment in lieu of notice for any period of continuous service in respect of which notice has already been given or paid for.
[17 substituted by PR952729 ppc 25Oct04]
17.1 Definitions
17.1.1 Business includes trade, process, business or occupation and includes part of any such business.
17.1.2 Redundancy occurs where an employer has made a definite decision that The employer no longer wishes the job the employee has been doing done by anyone and that decision leads to the termination of employment of the employee, except where this is due to the ordinary and customary turnover of labour.
17.1.3 Small employer means an employer who employs fewer than 15 employees.
17.1.4 Transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning.
17.1.5 Week's pay means the ordinary time rate of pay for the employee concerned. Provided that such rate shall exclude:
17.2 Transfer to lower paid duties
Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and The employer may at The employer's option, make payment in lieu thereof of an amount equal to the difference between the former ordinary rate of pay and the new ordinary time rate for the number of weeks of notice still owing.
17.3 Severance pay
17.3.1 Severance pay - other than employees of a small employer
An employee, other than an employee of a small employer as defined in 17.1, whose employment is terminated by reason of redundancy is entitled to the following amount of severance pay in respect of a period of continuous service:
Period of continuous service Severance pay Less than 1 year Nil 1 year and less than 2 years 4 weeks' pay* 2 years and less than 3 years 6 weeks' pay 3 years and less than 4 years 7 weeks' pay 4 years and less than 5 yeas 8 weeks' pay 5 years and less than 6 years 10 weeks' pay 6 years and less than 7 years 11 weeks' pay 7 years and less than 8 years 13 weeks' pay 8 years and less than 9 years 14 weeks' pay 9 years and less than 10 years 16 weeks' pay 10 years and over 12 weeks' pay* Week's pay is defined in 17.1.5
17.3.2 Severance pay - employees of a small employer
An employee of a small employer as defined in 17.1 whose employment is terminated by reason of redundancy is entitled to the following amount of severance pay in respect of a period of continuous service:
Period of continuous service Severance pay Less than 1 year Nil 1 year and less than 2 years 4 weeks' pay* 2 years and less than 3 years 6 weeks' pay 3 years and less than 4 years 7 weeks' pay 4 years and over 8 weeks' pay* Week's pay is defined in 17.1.5
17.3.3 Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date.
17.3.4 Continuity of service shall be calculated in the manner prescribed by clause 16.1.6. Service prior to the date the order takes effect shall not be taken into account in calculating an entitlement to severance pay for an employee of a small employer pursuant to 17.3.2.
17.3.5 Application may be made for variation of the severance pay provided for in this clause in a particular redundancy situation in accordance with the Redundancy Case Decision [PR032004, 26 March 2004] and the Redundancy Case Supplementary Decision [PR062004, 8 June 2004].
17.4 Employee leaving during notice period
An employee given notice of termination in circumstances of redundancy may terminate his/her employment during the period of notice set out in clause 9- Notice of Termination. In this circumstance the employee will be entitled to receive the benefits and payments they would have received under this clause had they remained with the employer until the expiry of the notice, but will not be entitled to payment in lieu of notice.
17.5 Alternative employment
17.5.1 An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
17.5.2 This provision does not apply in circumstances involving transmission of business as set in 17.7.
17.6 Job search entitlement
17.6.1 During the period of notice of termination given by the employer in accordance with 9.1, an employee shall be allowed up to one day's time off without loss of pay during each week of notice for the purpose of seeking other employment.
17.6.2 If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or he or she shall not receive payment for the time absent. For this purpose a statutory declaration will be sufficient.
17.6.3 The job search entitlements under this sub clause apply in lieu of the provisions of 16.3.
17.7 Transmission of business
17.7.1 The provisions of this clause are not applicable where a business is before or after the date of this award, transmitted from an employer (in this sub clause called the transmittor) to another employer (in this sub clause called the transmittee), in any of the following circumstances:
17.7.1(a) Where the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor and any prior transmittor to be continuous service of the employee with the transmittee; or
17.7.1(b) Where the employee rejects an offer of employment with the transmittee:
17.7.2 The Commission may vary 17.7.1(b) if it is satisfied that this provision would operate unfairly in a particular case.
17.8 Employees exempted
This clause does not apply to:
17.9 Incapacity to pay
The Commission may vary the severance pay prescription on the basis of an employer's incapacity to pay. An application for variation may be made by an employer or a group of employers.
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