AutoText Entries for Test Case Provisions
(31 AUGUST 2004)
Clause / Shortcut / PageAnti-discrimination / anti / 2
Apprenticeships / appr / 3
Arbitrated safety net adjustment 2002 / sna02 / 6
Arbitrated safety net adjustment 2003 / sna03 / 6
Arbitrated safety net adjustment 2004 / sna04 / 6
Federal minimum wage 2002 / fed02 / 7
Federal minimum wage 2003 / fed03 / 8
Federal minimum wage 2004 / fed04 / 9
Federal minimum wage absorption clause 2002 / abs02 / 10
Federal minimum wage absorption clause 2003 / abs03 / 10
Federal minimum wage absorption clause 2004 / abs04 / 10
Index of facilitative provisions / inde / 11
Majority clause / majo / 12
National Training Wage / nati / 13
Parental leave - eligible casual employees / parecas / 14
Parental leave - eligible casual employees (including labour hire) / parecaslh / 19
Personal leave / pers / 24
Reasonable hours / reas / 26
Redundancy / redu04 / 27
Redundancy disputes resolution clause / redudis / 30
Supported wage system / supp / 31
Notice of termination / notice / 34
ss.141 & 493A - application for common rule declaration (Victoria) / viccom / 36
The Test Case Provisions have been included as AutoText entries in the Drafting Template as shortcuts when these provisions occur in awards.
It should be noted:
· that existing award provisions which are different to the test case provisions may be allowable.
· entitlements in excess of test case provisions should not be reduced unless a case has been argued and a decision issued by the Commission under Item 51(6).
A. ANTI-DISCRIMINATION
A.1 It is the intention of the respondents to this award to achieve the principal object in s.3(j) of the Workplace Relations Act 1996 through respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
A.2 Accordingly, in fulfilling their obligations under the dispute avoidance and settling clause, the respondents must make every endeavour to ensure that neither the award provisions nor their operation are directly or indirectly discriminatory in their effects.
A.3 Nothing in this clause is taken to affect:
A.3.1 any different treatment (or treatment having different effects) which is specifically exempted under the Commonwealth anti-discrimination legislation;
A.3.2 junior rates of pay, until 22 June 2000 or later date determined by the Commission in accordance with s.143(1E) of the Act*;
A.3.3 an employee, employer or registered organisation, pursuing matters of discrimination in any State or federal jurisdiction, including by application to the Human Rights and Equal Opportunity Commission;
A.3.4 the exemptions in s.170CK(3) and (4) of the Act.
* Giudice J found that these words may be obsolete in PR903099
#.# Apprentices
#.#.1 Scope of the apprenticeship clause
#.#.1(a) This clause shall apply to apprentices.
#.#.1(b) An apprentice is an employee who is engaged under a Training Agreement registered by the relevant State or Territory Training Authority, where the qualification outcome specified in the Training Agreement is a relevant qualification from a Training Package endorsed by the National Training Framework Committee.
#.#.1(c) For the purpose of this sub-clause a “relevant qualification” is a qualification:
#.#.1(c)(i) from the National Training Package that covers occupations or work which are covered by this Award, or is a qualification from an enterprise Training Package listed in {insert schedule reference} to this award; and
#.#.1(c)(ii) at Australian Qualifications Framework Certificate Level III except where the qualification can normally be completed through a Training Agreement of a duration of two years or less. (note: such qualifications would generally be covered by traineeship provisions).
#.#.1(d) An apprentice shall also include an employee who is engaged under a Training Agreement or Contract of Training for an apprenticeship declared or recognised by the relevant State or Territory Training Authority.
#.#.2 The rates of wages payable to an apprentice in the respective years of the apprenticeship will not be less than the following percentages of the wages, including tool allowance and industry allowance where applicable, fixed for journeyperson in terms of this award:
Year of service / Percentage1st year:
1st six months / 40
2nd six months (subject of progress
to the satisfaction of the employer) / 45
2nd year / 60
3rd year / 75
4th year / 90
#.#.3 Where the Australian Capital Territory Vocational Training Authority is satisfied that any apprentice has passed all subjects and has obtained at the frst attempt an average of not les than 75% of the possible total marks awarded in a stage at the annual examinations and/or continuous assessments being undertaken in the prescribed course in the theory and practice of the trade covered by this award, which the apprentice has been reqired to complete pursuant to the provisions of the Vocational Training Act, the vocational training authority will so certify to the employer of the apprentice and a copy of that certification will be forwarded to the apprentice.
#.#.4 Where an apprentice has been exempted from any subject or subjects, this clause applies as if such subject or subjects had not been included in the prescribed course.
#.#.5 Upon the Vocational Training Authority’s certification the wages payable to the apprentice in the terms of this award will be increased by an amount equal to 2.5% of the rate payable for the relevant tradesperson classification. Such increase will apply to the apprentice from the first pay period to commence on or after the date of the authority’s certification and remain in force for 52 weeks, or the date of a subsequent certification or completion of the apprenticeship, whichever will occur first.
#.#.6 School based apprentices
#.#.6(a) This clause shall apply to school based apprentices. A school based apprentice is a person who is undertaking an apprenticeship in accordance with this clause while also undertaking a course of secondary education.
#.#.6(b) The hourly rates for full-time junior and adult apprentices as set out in this award shall apply to school based apprentices for total hours worked including time deemed to be spent in off the job training.
#.#.6(c) For the purposes of (a) above, where an 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% of the actual hours each week worked on-the-job. The wages paid for training time may be averaged over a semester or year.
#.#.6(d) The school-based apprentice shall be allowed, over the duration of the apprenticeship, the same amount of time to attend of-the-job training as an equivalent full-time apprentice.
#.#.6(e) For the purposes of this sub-clause, 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.
#.#.6(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.
#.#.6(g) School based apprentices shall progress through the wage scale at the rate of 12months progression for each two years of employment as an apprentice.
#.#.6(h) These rates are based on a standard full-time apprenticeship of four years. The rate of progression reflect the average rate of skill acquisition expected from the typical combination of work and training for a school-based apprentice undertaking the applicable apprenticeship.
#.#.6(i) Where an apprentice converts from school-based to full-time, al time spent as a full-time apprentice shall count for the purposes of progression through the wage scale. This progression shall apply in addition to the progression achieved as a school-based apprentice.
#.#.6(j) School-based apprentices shall be entitled pro-rata to all of the conditions of employees under this Award.
ARBITRATED SAFETY NET ADJUSTMENT - 2002
The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety Net Review - Wages May 2002 decision [PR002002]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above-award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.
ARBITRATED SAFETY NET ADJUSTMENT - 2003
The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety Net Review - Wages May 2003 decision [PR002003]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above-award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.
ARBITRATED SAFETY NET ADJUSTMENT - 2004
A.? Arbitrated safety net adjustment
The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety Net Review—Wages May 2004 decision [PR002004]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above-award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments.
F. Federal Minimum Wage [2002]
F.1 The federal minimum wage
No employee shall be paid less than the federal minimum wage.
F.2 Amount of federal adult minimum wage
F.2.1 The federal minimum wage for full-time adult employees not covered by F.4 [special categories clause], is $431.40 per week.
F.2.2 Adults employed under a supported wage clause shall continue to be entitled to receive the wage rate determined under that clause. Provided that such employees shall not be paid less than the amount determined by applying the percentage in the supported wage clause applicable to the employee concerned to the amount of the minimum wage specified in F.2.1.
F.2.3 Adults employed as part-time or casual employees shall continue to be entitled to receive the wage rate determined under the casual and part-time clauses of the award. Provided that such employees shall not be paid less than pro rata the minimum wage specified in F.2.1 according to the number of hours worked.
F.3 How the federal minimum wage applies to juniors
F.3.1 The wage rates provided for juniors by this award continue to apply unless the amount determined under F.3.2 is greater.
F.3.2 The federal minimum wage for an employee to whom a junior rate of pay applies is determined by applying the percentage in the junior wage rates clause applicable to the employee concerned to the relevant amount in F.2
F.4 Application of minimum wage to special categories of employee
F.4.1 Due to the existing applicable award wage rates being greater than the relevant proportionate federal minimum wage, this clause has no application to employees undertaking a National Training Wage Traineeship, an Australian Traineeship, a Career Start Traineeship, a Jobskills placement or an apprenticeship.
F.4.2 [Leave reserved for other special categories]
F.5 Application of federal minimum wage to award rates calculation
The federal minimum wage:
F.5.1 applies to all work in ordinary hours;
F.5.2 applies to the calculation of overtime and all other penalty rates, superannuation, payments during sick leave, long service leave and annual leave, and for all other purposes of this award; and
F.5.3 is inclusive of the arbitrated safety net adjustment provided by the Safety Net Review – Wages May 2002 decision [Print PR002002] and all previous safety net and national wage adjustments.
F. Federal Minimum Wage [2003]
F.1 The federal minimum wage
No employee shall be paid less than the federal minimum wage.
F.2 Amount of federal adult minimum wage
F.2.1 The federal minimum wage for full-time adult employees not covered by F.4 [special categories clause], is $448.40 per week.
F.2.2 Adults employed under a supported wage clause shall continue to be entitled to receive the wage rate determined under that clause. Provided that such employees shall not be paid less than the amount determined by applying the percentage in the supported wage clause applicable to the employee concerned to the amount of the minimum wage specified in F.2.1.
F.2.3 Adults employed as part-time or casual employees shall continue to be entitled to receive the wage rate determined under the casual and part-time clauses of the award. Provided that such employees shall not be paid less than pro rata the minimum wage specified in F.2.1 according to the number of hours worked.
F.3 How the federal minimum wage applies to juniors
F.3.1 The wage rates provided for juniors by this award continue to apply unless the amount determined under F.3.2 is greater.
F.3.2 The federal minimum wage for an employee to whom a junior rate of pay applies is determined by applying the percentage in the junior wage rates clause applicable to the employee concerned to the relevant amount in F.2